In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record to let the respondent, a lawful permanent resident since 1959, apply for a waiver under INA 212(c) as his conviction was secured through a plea agreement entered prior to April 24, 1996. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record to let the respondent, a lawful permanent resident since 1959, apply for a waiver under INA 212(c) as his conviction was secured through a plea agreement entered prior to April 24, 1996. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record to let the respondent, a lawful permanent resident since 1959, apply for a waiver under INA 212(c) as his conviction was secured through a plea agreement entered prior to April 24, 1996. The decision was written by Member Roger Pauley.
Legal Serices of New Jersey U.S. Department of Justice Executive Ofce fr I igation Review Board of Immigation Appeals Ofce of the Clerk 5107 Leebur Pike, Suite ZOOO Falls Churc1, Vrginia 21041 OHS/ICE Ofice of Chief Counsel - NEW P.O. Box 1898 100 Metroplex Dr. at Plainfield Ave., Ste. 402 Edison, NJ 08818 Newark, NJ 07101 Name: MOSCHILLO, ANIELLO A011 521-320 Date of this notice: 6/17/2011 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Pauley, Roger Sincerely, Donna Car Chief Clerk I m m i g r a n t
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w w w . i r a c . n e t Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011) " U.S. Department of Justice Executive Ofce fr Imgation Review Decision of the Board of Imigration Appeals Falls Curch Virginia 22041 File: AOl 1 521 320 - Newark, NJ Date: JUN 17 ZOU I re: ANIELLO MOSCHILLO a.k.a. Giovanni Giovatto a.k.a. Tony Laureana a.k.a. Nicholas Lore a.k.a. Tony Lureana a.k.a. Atonio Sabata a.k.a. Neil Sabata IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Raquiba Huq, Esquire The respondent appealed fom the Febra 15, 2011, oral decision of the higation Judge, which denied his request fr a continuance; fund him removable; detenined that he did not demonstrate eligibility fr any relief fom removal; and ordered him removed fom the United States to Italy. 1 The record will be remaded. The Immigation Judge fund that the respondent was removable as charged, as convicted of an aggavated flony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), in conjunction with section 101(a)(43)(B) of the Act, 8 U.S.C. 110l(a)(43)(B), and as convicted of a controlled substance violation under section 237(a)(2)(B)(i) of the Act. As substantiated by conviction documents, the respondent has a New Jersey conviction fr "maufcture/distribute/dispense a controlled dangerous substance," cocaine. The conviction documents show that the respondent pied guilty, and was adjudicated guilty by guilty plea, on March 24, 1994. However, he filed to appear fr his scheduled sentencing on May 27, 1994, was re-arested in 2008, and ultimately was sentenced to imprisonment of 5 years in March 2008. The record refects that he was admitted to the United States as a lawfl penanent resident on or about December 6, 1959. On appeal, the respondent argues that the Immigation Judge should have ganted him a fher continuance so that he could pursue post-conviction relief ("PCR") because he entered a defctive guilty plea due to inefective assistance fom criminal counsel, in view of Padi a v. Kentuck, 559 U.S._, 130 S.Ct. 1473, 2010 WL 1222274 (Mach 31, 2010). At his fnal removal hearing on Febrary 15, 2011, he acknowledged that the criminal court had rled unfvorably on his PCR petition and indicated that he wished to appeal that decision. See Tr. at 52; I.J. at 2. 1 The proceedings befre the Imigration Judge in this matter were completed in Newark, New Jersey through video conference pursuant to section 240(b)(2)(A)(iii) of the Imigation and Nationality Act, 8 U.S.C. 1229a(b)(2)(A)(iii). I m m i g r a n t
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w w w . i r a c . n e t Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011) AOl I 521 320 We fnd that the Immigration Judge approprately went frard with the proceedings without affrding the respondent an additional continuance. The decision to gant or deny a continuance is within the discretion of the Immigration Judge, and good cause must be shown fr a continuance. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1997); Matter of Sibrn, 18 I&N Dec. 3 54 (BIA 1983); 8 C.F.R. 1003.29. In this case, the Immigation Judge ganted eight previous continuances spanning over 11 months, fom March 1, 2010, until April 14, 2010; fom April 14, 2010, until May 12, 2010; fom May 12, 2010, until September 7, 2010; fom September 7, 2010, until October 7, 2010; fom October 7, 2010, until October 14, 2010; fom October 14, 2010, until December 8, 2010; fom December 8, 2010, until Januar 6, 2011; and fom Januar 6, 2011, until Febrar 15, 2011. These continuances were given so that the respondent could pursue PCR. The frst continuance also was given so that the respondent could locate an immigation attorey to represent him, and he was represented by counsel begnning with the second hearing on April 14, 2010. We agree that a ninth continuance was not warated, under the circumstances of this case. Concering the validity of the respondent's conviction, the fct that he may be pursuing PCR in the fr of a collateral attack on that conviction in state criminal court does not afect its fnality fr fderal immigation purposes. See Matter of Adetiba, 20 l&N Dec. 506 (BIA 1992). The respondent has presented no evidence with this appeal that any attack on his conviction has resulted in any vacatur. I Padilla v. Kentuck, supra, the United States Supreme Court rled that a lawyer representing an alien in connection with a guilty plea to a criminal ofense has a constitutional duty to advise the alien about the risk of deportation arising fom the conviction. However, the respondent's speculation that his conviction might be invalid, including in light of Padilla v. Kentuck, supra, does not change the fnality fr immigation puroses of such conviction, unless and until it were to be overed by the criminal court. See Matter of Ponce de Leon, 21 I&N Dec. 154 (A.G. 1997; BIA 1997, 1996). He thus stands convicted of the New Jersey cocaine trafcking cnme. Consistent with the respondent's appellate assertions, however, we fnd that the Immigation Judge should have allowed him to apply fr a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c). The section 212(c) waiver was largely eliminated by the Illegal Imigation Refr and Imigant Responsibility Act of 1996 ("I"), Division C of Pub. L. No. 104-208, 110 Stat. 3009-627. IISv. St. Cyr, 533 U.S. 289 (2001), the United States Supreme Court held tat section 212(c) relief remains available, despite its repeal, only fr aliens who ( 1) have convictions that were secured throug plea ageements prior to April 24, 1996, (2) have a "lawful unrelinquished domicile of 7 consecutive years," and (3) are not deemed ineligible fr a waiver fr having sered more than 5 years of incarceration fllowing a conviction fr a aggavated flony. Id. at 326 (addressing the retroactive efect ofI and the Atiterorism and Efective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, on the availability of section 212(c) relief; see also 8 C.F.R. 1212.3(. The respondent is a lawfl peranent resident who appears to have a lawfl unrelinquished domicile exceeding 7 consecutive years. He was fund removable based on the New Jersey drg traffcking conviction that is a 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011) AOI l 521 320 aggavated felony. This conviction is pursuant to the March 24, 1994, plea ageement, which pre dates April 24, 1996. He has not sered more than 5 years in prison fllowing that conviction. Based on the present record, he appears to be statutorily eligible fr section 212(c) relief even in view ofI and IS v. St. Cyr, supra. Accordingly, we will remand the record. On remand, the respondent may submit an application fr a section 212(c) waiver befre the hnmigration Judge. Both the respondent and the DHS may introduce any and all available evidence that is relevant to the respondent's statutory and discretionar eligibility fr relief. ORER: The record is remanded to the hmigration Court fr frther proceedings and fr the entr of a new decision, consistent with this opinion. 3 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011) . '. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRTION REVIEW UNITED STATES IMMIGRATION COURT Newark, New Jersey File No.: A 011 521 320 February 15, 2011 In the Matter of MOSCHILLO, ANIELLO IN REMOVAL PROCEEDINGS Respondent CHARGE: Section 2 37 {a} ( 2) (A) (iii), Immigration and Nationality Act; Section 237 (a) (2) (B) {i), Imigration and Nationality Act. APPLICATIONS: Continuance. ON BEHALF OF RESPONDENT: Margaret Cargioli Legal Services of New Jersey 100 Metroplex Drive, Suite 4 02 Edison, New Jersey 08818 ON BEHALF OF OHS: Alan Wolf Senior Attorney Department of Homeland Security Newark, New Jersey ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a 69-year-old male, native and citizen of Italy, who was admitted to the United States at New York, New York December 6, 1959 as an inigrant. On March 14, 2008, he was convicted in the Superior Court of New Jersey, Bergen County of manufacture, distribute, dispense cocaine in violation of New Jersey Statutes 2 {c) :35-5(a) (1), and 2(c) :35-5(b) (2). Respondent admitted the truthfulness of the factual allegations contained on the Notice to Appear {Exhibit l} and conceded removability pursuant to Section 237 {a) (2) (A) (iii} of the Immigration and 1 I m m i g r a n t
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w w w . i r a c . n e t Nationality Act (Act), and pursuant to Section 237(a) (2) (B) (i) of the Act. Based upon respondent's admissions, removability has been established by clear and convincing evidence. Because the respondent declined to designate a country of removal, the Court, pursuant to Section 241 (b) (2) of the Act, designated Italy should such action become necessary. Rather than applying for any relief from removal, respondent requested continuances to pursue post-conviction relief related to his conviction for manufacture, distribute, dispense cocaine. The Court granted numerous continuances for that expressed purpose, including from May 12, 2010 to Septemer 7, 2010, from September 7, 2010 until October 7, 2010, from October 7, 2010 to October 14, 2010, from October 14, 2010 to November 4, 2010, from November 4 to January 6, 2011, from January 6, 2011 to January 27, 2011. The Court was closed on January 27, 2011 due to weather; the matter was reset to February 15, 2011, which, in effect, gave the respondent additional time to pursue his post conviction relief. Indeed, his post-conviction relief was adjudicated by an order dated January 31, 2011 in the Superior Court of New Jersey, Bergen County, a copy of which is in the record. As acknowledged by his counsel, the post-conviction relief motion was denied. At the hearing on February 15, 2011, respondent's counsel sought additional continuances to appeal this decision, opining that the public defender who assisted him felt it was wrong and A 011 521 320 2 February 15, 2011 I m m i g r a n t
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w w w . i r a c . n e t had a good chance of success on appeal. The Government, as they had for almost all of the previous continuances, opposed a further continuance for appeal of the denial of post-conviction relief arguing that the respondent had a reasonable time to pursue post-conviction relief as evidenced by the fact that a decision on the relief was actually issued and that further time was inappropriate. Considering the entirety of the record, the Court concludes s the respondent ha. not established good cause to further continue f his case to appeal the denial of his post-conviction relief motion. As noted, he has had some months to pursue post- conviction relief. Unfortunately, it was not successful, as evidenced by the order denying it. However, the result of any appeal is speculative and the adjudication of an appeal is as collateral to these proceedings as was the original motion for post-conviction relief. Under these circumstances, the Court cannot consider good cause has been established to further continue the case for appeal of denial of the post-conviction relief motion, and that motion is denied. Respondent was given an opportunity to file applications based on any fear of being persecuted or tortured upon return to Italy. The Court was informed on May 1?, 2010 that he did not wish to pursue those options. This was reaffirmed at the hearing on February 15, 2011. The respondent does not appear eligible for any relief from removal, and he has not requested any relief A 011 521 320 3 February 15, 2011 I m m i g r a n t
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w w w . i r a c . n e t r .. , \,,_ from removal. Therefore, although he has certainly been a resident for a long time, the Court has no choice but to order that he be removed to Italy on the charges contained in the Notice to Appear. ORDER IT IS HEREBY ORDERED that the respondent be removed from the United States to Italy on the charges contained in the Notice to Appear.
ARG T R. REIHENBERG Imigration Judge A 011 521 320 4 February 15, 2011 I m m i g r a n t
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w w w . i r a c . n e t - 'r CERTIFICATE PAGE
\ I hereby certify that the attached proceeding before JUDGE MARGARET R. REICHENBERG, in the matter of: MOSCHILLO, ANIELLO A 011 521 320 Newark, New Jersey is an accurate, verbatim transcript of the recording as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review. April l, 2011 {completion date) By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph. I m m i g r a n t
United States v. Robert Torres, Also Known as Roberto Torres-Amaro, Also Known as Papo, Also Known as Papo Biombo, Also Known as Papo Blue Moon, Also Known as El Brujo Ismael Pastrana, Also Known as Ismael Pastrana-Delgado, Also Known as Junior Pastrana, Also Known as Junior Grasa Miguel Millan, Also Known as Miguel Millan-Silva, Also Known as Mickey Millan, Also Known as Maneco Manuel Cruz, Also Known as Manuel Dejesus, Also Known as Manny, Also Known as Maneco Juan Lugo, Also Known as Juan A. Lugo-Castro, Also Known as Juan Angel Lugo, Also Known as Juan Antonio Lugo Melendez, Also Known as Johnny Lugo Edwin Torres, Also Known as Compy Elvin Reyes, Also Known as Tuti, Also Known as Tuty Gilberto Laguna, Also Known as Gilberto Ruben Laguna, Also Known as Nfn Ruben Pedro J. Merete, Also Known as Chucky Jose Espada, Also Known as Jose Espada Martinez, Also Known as Chan Carmelo Rodriguez, Also Known as Carmelo Rodriguez-Rosas Enrique Rodriguez, Also Known as Enrique Rodriguez-Narvaez, A