U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5 !07 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHL

Forsythe Immigration Law Firm

756 Tyvola Road, Ste 160
Charlotte, NC 28217

5701 Executive Ctr Dr., Ste 300

Charlotte, NC 28212

Name: MANGANDI, ELMER A

A 094-408-360

Date of this notice: 11/25/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger

Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Forsythe, Jordan G.

U.S.

D_S'partment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls. Church, Virginia 20530

File:

Date:

A094 408 360 - Charlotte, NC

In re: ELMER A. MANGANDI

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Jordan G. Forsythe, Esquire

Melissa K. Metz
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Temporary protected status

The respondent, a native and citizen of El Salvador, seeks to renew his application for
temporary protected status ("TPS") in these removal proceedings. See 8 C.F.R. 1244.11. On
March 28, 2013, the Immigration Judge pretermitted the respondent's application, concluding
that he did not show that he has not been convicted of two misdemeanors involving driving while
impaired in violation of North Carolina law. See 8 C.F.R. 1244.4(a). Subsequently, on
April 23, 2013, th Immigration Judge denied the respondent's motion to reconsider, which was
supported by additional evidence. The respondent's appeal of these decisions will be sustained
and :the record will be remanded for further proceedings.
The Board reviews an Immigration Judge's findings of fact for clear error.
1003.l(d)(3)(i).

We review issues of law, discretion, or judgment de novo.

8 C.F.R.
8 C.F.R.

1003. l(d)(3)(ii).
On appeal, the respondent argues that the Immigration Judge incorrectly placed the burden
on him to show that his 2004 conviction was not vacated for immigration purposes (I.J. at 2).
We disagree.
As the respondent has conceded removability, he bears the burden of
demonstrating eligibility for relief. See 8 C.F.R. 1240.8(d) and 1244.9(a)(3); see also Salem
v. Holder, 641F.3d 111, 115-17 (4th Cir. 2011).
On the other hand, we agree with the respondent's contention that the Immigration Judge
erred in holding that he has not shown eligibility for TPS under 8 C.F.R. 1244.4(a) (l.J. at 3-6).
The respondent submitted a North Carolina court order and copies of his criminal record
establishing that on September 23, 2011, the court vacated his 2004 conviction for driving while
impaired (Tabs D-E). Furthermore, the court order states that the respondent's guilty plea is
vacated "after having considered the arguments of counsel" (Tab E). In this regard, the

Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A094 408 360

respondent's Motion for Appropriate Relief requests that the court vacate his 2004 guilty plea
pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010) (Tab E). The respondent further presented.
an affidavit in which his criminal attorney states that no other basis for setting aide the

contrary to the Immigration Judge, we conclude that the respondent has demonstrated that his
conviction was vacated based on a defect in the underlying criminal proceedings, as opposed to
reasons unrelated to the merits of the proceedings such as rehabilitative or immigration purposes.
See Matter of Adamiak, 23 l&N Dec. 878 (BIA 2006); Matter of Pickering, 23 I&N Dec. 621,
624 (BIA 2003). Consequently, the respondent has established that he has not sustained two
convictions for misdemeanors that would preclude him from receiving TPS. See id.; 8 C.F.R.
1244.4(a).
We will remand the record so the respondent may endeavor to satisfy the remammg
requirements for receiving TPS, including showing that he merits a favorable exercise of
discretion. See 8 C.F.R. 1244.2; Matter of Echeverria, 25 I&N Dec. 512, 513-14 (BIA 2011).
On remand, the parties may submit additional evidence and argument regarding the respondent's
eligibility for TPS or any other form of relief for which he may be eligible.
Accordingly, the following order is entered.
ORDER: The appeal is sustained, the decisions below are vacated, and the record is
remanded for further proceedings and the entry of a new decision consistent with this opinion.

FOR THE BOARD

the decision to remand in the
Board Member Patricia A. Cole concurs in
The Immigration
ation Judge error.
interest of justice but not because of Immigr
'
met his burden of proof for relief and
Judge s decison that respondent had not
'
is consistent with the law and
denial of respondent s motion to reconsider
regulations.

Cite as: Elmer A. Mangandi, A094 408 360 (BIA Nov. 25, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

conviction was discussed and the district attorney did not oppose the motion (Tab F). The
respondent also submitted a form showing that on October 28, 2011, the prosecutor voluntarily
dismissed the charge for driving while impaired, meaning that the respondent will not be
prosecuted again for his conduct occurring in 2003 (I.J. at 5; Tabs D-F). For these reasons,

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT

5701 EXECUTIVE CENTER DR.

CHARLOTTE,

NC

#400

28212

:::::.::..

FORSYTHE IMMIGRATIONLAW FIRM

FORSYTHE,

JORDAN G,

756 TYVOLA ROAD,

CHARLOTTE,

NC

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APR 2 2 2013

SUITE 160

C.YAlfen'sAttylRep

28217
Date:

Apr 22,

JUcfaeJCourt Staff:
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2013

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File A094-408-360
In the Matter of:
MANGANO!,

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Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals.

'.
. .

Notice of Appeal,

ELMER A

Representative,

The enclosed copies of FORM EOIR 26,

and FORM EOIR 27,

properly executed,

Notice of Entry as Attorney or

must be filed with the Board of

"Tmtpigrtion Appeals on or before

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The appeal i:nst be accompanied by proof of paid fee

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Enclosed is a copy of 'the orl decision.

($110.00) .

Enclosed is a transcript of the testimony of record .

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granted until

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to submit a

ce in support of your appeal.

ing counsel is granted until

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to submit a

brief in opposition to the appeal.

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Enclosed is a copy of the orde r /decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.

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igration Court Clerk

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Immigrant & Refugee Appellate Center | www.irac.net

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
5701 Executive Center Drive,

uite 400

Charlotte, North Carolina 28212

ALIEN ATTORNEY:

CASE NO.

A# 094-408-360

FORSYTHE, JORDAN G, ESQ

DECISION ON A MOTION TO RECONSIDER.

IN

( ] DEPORTAUON
A

(] EXCLUSION

(X]REMOVALPROCEEDINGS ( ]AOCASYLUMONLY

MO';I'ION TO RECONSIDER has been filed in the above captioned case. The Motion has

been duly considered and it.appears to the Court that:

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] The request is timely and reasonable. Therefore, IT IS HEREBY ORDERED that the
otion be

RANTED.

.
.
e Motion has been duly considered and it appears to the Court that no substantial grounds
.

hae been advanced to warrant its grant. Therefore, IT IS HEREBY ORDERED that the Motion

b and the same is hereby DENIED.

Ptf.19-C-ffl='J> ,

] Adjourn to individual I master calendar hearing on

Dated

U.S. Immigration Judge

This document was served to:

[ X] District Counsel
[ X] Counsel for Respondent I Applicant
[

] Respondent I

Mailed out :

plicant

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By:

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Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF: MANGANDI ELMER A

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.___,-'

"A motion to reconsider shall state the reasons for the motion by specifying the errors of
fact or law in the Immigration Judge's prior decision and shall be supported by pertinent
authority." 8 C.F.R. 1003.23(b)(2); INA 240(c)(6)(C); Matter ofO-S-G-, 24 l&N Dec. 56
(BIA 2006).
The Court denies Respondent's motion to reconsider because Respondent failed to
Respondent asserts that, in his

Motion for Appropriate Relief ("MAR"), he claimed that his Sixth Amendment rights were

violated, and that he was not given sufficient assistance of counsel when he was not adequately
informed of the immigration consequences of his guilty plea in 2004.

Respondent further

contends that his MAR complied with the pertinent North Carolina statute, and that he was
entitled to attack his guilty plea on the basis that it was not voluntarily or knowingly given.
The Court previously considered Respondent's arguments, contained in his MAR, in its
prior decision. The Court found that Respondent's statements in his MAR were insufficient to
satisfy his burden under the framework analysis espoused in Matter ofPickering. In so finding,
the Court concluded that the state court order failed to: (1) reference the law under which it was
vacating the guilty plea; and (2) explain its rationale for vacating the guilty plea by neglecting to
clearly adopt one or more of Respondent's reasons for the vacatur. Thus, the Court found that
the record was inconclusive regarding the rationale for the vacatur of Respondent's conviction.
The Court finds that there was no error of law or fact in reaching this decision.
Respondent asks the Court to consider new evidence regarding the vacatur, including but
not limited to, an affidavit from his prior attorney who represented him in his MAR and the state
prosecutor's voluntary dismissal form regarding the 2004 DWI charge.
reconsider its decision in light of this new evidence presented.

The Court declines to

Respondent has failed to

demonstrate why this evidence was not previously available prior to the Court's rendering of its
decision. See 8 C.F.R. I 003.31(c). Respondent has been in removal proceedings since he was
served with his Notice to Appear in September 2012, and therefore had ample time to compile all
pertinent evidence regarding his MAR. Regardless, with respect to the affidavit of Respondent's
previous counsel, it is well settled that mere statements of counsel do not constitute
evidence. See, e.g., lN.S.

v.

Phinpathya, 464 U.S. 183, 189-90 n.6 (1984); Matter of Ramirez

Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Accordingly, the Court will not disturb its prior

finding that Respondent's record is inconclusive regarding the rationale for the vacatur of
Respondent's 2004 DWI conviction. In light of the Respondent's failure to present a legal or
factual error in the Court's prior decision, the Court hereby denies Respondent's motion to
reconsider.

Immigrant & Refugee Appellate Center | www.irac.net

identify an error of fact or law in the Court's prior decision.