Astrid Guzman-Ugarte, Esq.

3305 Spring Mountain Road, Suite 12

Las Vegas, NV 89102
L.b. cQBItmcut 0JU9tlcc
Executive Ofce for Immigration Review
BoardofImmigrationappeaIs
O{ceoftheC|erk
Jf07Leesburg Pike, S11i1e WOO
lahvCl11rcl. Virginia JJ04!
OHS/ICE Ofice of Chief Counsel - LVG
3373 Pepper Lane
Las Vegas, NV 89120
Name: GONZALEZ-BANDA, LUIS ALBERTO A078-469-139
Date of this notice: 3/21/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Luis Alberto Gonzalez-Banda, A078 469 139 (BIA March 21, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
US.g8OBI00sU0
Executive Ofce fr Imigtion Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia ZZ41
File: A078 469 139 - Las Vega,
Date:
MAk J V!
In re: LUIS ALBERTO GONZALEZ-BANDA ak.a. Jesus Corona-Espinosa
REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONENT: Astid Guza-Ugare, Esquire
ON BEHALF OF DHS: Christa Pake
Assistant Chief Counsel
CHARGE:
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony
APPLICATION: Motion to remand
The respondent appeals te Immigation Judge's October 13, 2010, decision denying his motion
fr a continuance to seek post-conviction relief.1 During the pendency of the appeal, the respondent
fled a motion to remad. The motion will be ganted, ad the record will be remaded to the
Immigation Judge fr fher proceedings consistent with this opinon and fr enty of a new
decision.
The respondent, a natve ad citzen of Mexico, wa admitted to the United States as a lawl
peranent resident on Febr 5, 2002 (l.J. at l; Exh. 1). On Mach 3, 2010, te respondent was
convicted fr the ofense of possession of a stolen vehicle in violation of Nevada Revised Stattes
section 205.273. On September 14, 2010, the Immigation Judge fund the respondent removable
as chaged based on his conviction (l.J. at 3-4). On October 13, 2010, the Immigation Judge held
a additional hearing and denied the respondent's request fr a continuace to seek post-conviction
relief. The respondent appealed the denial of his rquest fr a continuance.
The Imigation Judge issued hs decision regading the respondenf s removabilit sepaately on
September 14, 2010. That decision is incororated into the Im igaton Judge's October 13, 2010,
decision.
The respondent originally fled his Notice of Appeal with the Boad in a timely maner. Te
ppeal, however, was rejected. The respondent resubmitted his appeal within 15 days. Terefre,
we will teat the respondent's appeal' as timely fled.
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Cite as: Luis Alberto Gonzalez-Banda, A078 469 139 (BIA March 21, 2011)
. A0.8 469 l.
During the pendency of the respondent's appeal, he fled a motion to remand including evidence
that his March 3, 2010, conviction has been set aside by the criminal court at least in par on the
basis of inefective assistance of counsel. The Department of Homeland Securit ("OHS") has not
responded to this fling. Under these circumstances, we fnd it necessar to remad the record to te
Immigation Judge to deterine whether the respondent's conviction has been vacated with the
burden of proof on the OHS to show that the conviction was not set aside solely to avoid
immigation consequences. 000/h V. 0h7008, 467 F.3d 1185 (9th Cir. 2006).
Accordingly, the motion will be ganted, and the record will be remanded to the Immigation
Judge fr frther proceedings consistent with this opinion and fr entry of a new decision.
ORDER: The motion is ganted, and the record is remanded to the Immigation Judge fr frther
proceedings consistent with this opinion ad fr entry of a new decision.
2
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Cite as: Luis Alberto Gonzalez-Banda, A078 469 139 (BIA March 21, 2011)
(
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Las Vegas, Nevada
File A 78 469 139 Date: October 13, 2010
In the Matter of
LUIS ALBERTO GONZALEZ-BANDA IN REMOVAL PROCEEDINGS
Respondent
CHARGE:
APPLICATION:
APPEARANCES:
Section 237{a) {2) {A) (iii) of the Imigration
and Nationality Act
1
(Act) as amended; after
admission to the United States the alien has
been convicted of an aggravated felony, as
defined in Section 101(a} (43) {G} of the Act, a
law relating to theft.
None
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ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPENT
Astrid Guzman-Ugarte, Esquire
OF HOMELAND SECURITY:

Christian Parke U z~/`cf

l

ORAL DECISION OF THE IMMIGRATION JUDGE

It was on October 13, 2010 that a hearing most recently
was convened regarding this removal proceeding. On this occasion
the Immigration Court observed the Respondent earlier was
determined to be removable, pursuant to clear and convincing
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evidence, with reference to the aforementioned removal charge.
The Immigration Court then observed the Respondent has designated
Mexico, the country of citizenship, should removal from the United
States prove necessary.
Further, during the October 13, 2010 hearing it was
determined by the Imigration Court that no continuance is
justified for the purpose of the Respondent pursing post-
conviction relief regarding his conviction referenced in the March
3, 2010 Notice To Appear. Exhibit 1. Based on that
determination the Respondent then acknowledged there currently is
no relief from removal available for him to pursue. Consequently,
it is the decision of the Immigration Court that the Respondent be
removed from the United States to Mexico.
ORDER
IT IS HEREBY ORDERED that the Respondent shall be
removed from the United States to Mexico.
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Imigration Judge
P 469 139 Z October 13, 2010
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CERTIFICATE PAGE
l hereby certify that the attached proceeding before
RONALD L. MULLINS, in the matter of:
LUIS ALBERTO GONZALEZ-BANDA
78 469 139
Las Vegas, Nevada
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
ram/seh
Rebecca A. Myers, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
{717) 854-0077
December 13, 2010
Completion Date
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