U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburgPike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BTV

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: LOWE, KEVIN CALVIN VASLEY

A 061-494-852

Date of this notice: 12/6/2016

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

DorutL ctl./VL)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

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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 22041

DHS/ICE Office of Chief Counsel - BTV

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: LOWE, KEVIN CALVIN VASLEY

A 061-494-852
Date of this notice: 12/6/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DOWtL

ca.Jv\)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Mann, Ana

Userteam:

Immigrant & Refugee Appellate Center, LLC | www.irac.net

LOWE, KEVIN CALVIN VASLEY

24 BOGART TERRACE
ALBANY, NY 12202

.....

.
'

U.S. Department' of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A061 494 852 - Batavia, NY

Date:

DEC 6 2016

In re: KEVIN CALVIN VASLEY LOWE a.k.a. Kevin C. Lowe

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Ramon Irizarry, Esquire
ON BEHALF OF OHS:
APPLICATION:

Michael G. Dreher
Assistant Chief Counsel

Continuance; remand; termination

The respondent, a native and citizen of Jamaica who was admitted to the United States as a
lawful permanent resident on September 3, 2010, appealed from the decision of the Immigration
Judge dated April 20, 2016, finding him removable as charged under section 237(a)(2)(B)(i) of
the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(B)(i), and denying his request for a
continuance. During the pendency of his appeal, the respondent also filed a motion to terminate.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i),
(ii). The record will be remanded to the Immigration Judge for further proceedings.
On appeal, the respondent requests termination of these proceedings, as he asserts that he is
no longer removable as charged. The Immigration Judge found the respondent removable based
on his October 28, 2015, conviction for the offense of criminal possession of marijuana in the
fourth degree with an aggregate weight of more than two ounces, in violation of section 221.15
of the New York State Penal Law. The respondent presents evidence on appeal that on
August 22, 2016, the Appellate Division of the Supreme Court of the State of New York, Second
Judicial Department, granted his motion for leave to file a late appeal of his conviction, and
deemed the notice of appeal of his 2015 conviction timely filed. We have held that the pendency
of a late reinstated appeal of a criminal conviction does not undermine the finality of the
conviction for immigration purposes. Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009)
(vacated by Abreu v. Holder, 378 Fed.Appx. 59 (2d Cir. 2010)). However, the United States
Court of Appeals for the Second Circuit, in whose jurisdiction this matter arises, found that the
Board "abused its discretion" when issuing its decision in Matter of Cardenas-Abreu, supra, and
held that a ,late-reinstated appeal "is equivalent to any other direct appeal for the purposes of
finality." Abreu v. Holder, supra, at 61.

. ........ ..

A06I 494 852

The decision deeming the respondent's criminal appeal timely filed was issued several
months ago. We will therefore remand the record to the Immigration Judge for additional
fact-finding as to whether direct appellate review has been exhausted as to the respondent's
criminal conviction, and whether or not these removal proceedings should be terminated. As the
respondent's removability is now an open question, it would be premature to address the other
arguments advanced in his appeal at this time. Accordingly, the following order shall be entered.

ll.1J/
iOARD

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

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April 20, 2016

File: A061-494-852
In the Matter of
)
)
)
)

KEVIN CALVIN VASLEY LOWE

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act (the

Act) - an alien who has been convicted of a controlled substance
violation.

APPLICATIONS:

Continuance to proceed with Section 440 motion under the New

York State law relating to the criminal conviction; cancellation of
removal; voluntary departure.

ON BEHALF OF RESPONDENT: RAMON IRIZARRY, Esquire

ON BEHALF OF DHS: MICHAEL DREHER, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Jamaica. He is charged with
being removable from the United States, as set forth above, pursuant to a Notice to
Appear dated January 11, 2016 (Exhibit No. 1).
On March 22 of this year, the respondent, through counsel, admitted that the
respondent is a native and citizen of Jamaica, that he is not a citizen of the United

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BATAVIA, NEW YORK

States, and that he was admitted to the United States as a lawful permanent resident at

the fourth factual allegation to the effect that the respondent was convicted on or about
October 28, 2015, in the Rockland County Court in New York State for criminal
possession of marijuana in the fourth degree with an aggregate weight of more than two
ounces. The attorney for the respondent also denied the Government's charged ground
of removability.
On March 22, 2016, the respondent declined to designate a country of removal if
removal is necessary and this Court designated Jamaica. Relief that was being sought
was termination of the proceedings, cancellation of removal under Section 240A(a) of
the Act if there were no stop time problems. The Court asked whether the respondent
would be seeking relief based upon the designation of Jamaica and was told that as far
as the attorney knew he would not. The matter was reset to today's date for hearing on
contested removability.
On today's date, the attorney for the respondent requested a continuance to an
additional date because the respondent was seeking post-conviction relief pursuant to
Section 440 of the New York State law. The Department of Homeland Security
opposed a grant of a continuance because it was to seek a collateral attack on the
conviction which was underlying the charged ground of removability.
This Court agreed with the Department of Homeland Security and determined
that the respondent was not entitled to an adjournment to seek a collateral attack on the
conviction.
Since removability was still at issue, the Government's counsel pointed out that
he was resting pursuant to the materials contained in Group Exhibit No. 2 in these
proceedings, specifically Sub-Exhibit C which appears to be a court certified conviction

A061-494-852

April 20, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

New York, New York, on September 3, 2010. The attorney for the respondent denied

record showing the respondent's conviction as charged.

guilty to less than two ounces of marijuana and did not plead guilty to two ounces or
more. The respondent did indicate, however, that the arrest date on Group Exhibit 2,
Sub-Exhibit C was correct, that his birth date was correct and that he was in fact
sentenced to three years probation and 120 hours of community service as shown on
that document.
This Court is not aware of any ground of New York State law relating to a
conviction for less than two ounces of marijuana. The section of law relied upon by the
Government, and set forth in the conviction record, Penal Law Section 221.15, relates
to a possession of a substance having two ounces or more of marijuana. The Court
would note that approximately 28 grams of marijuana equal one ounce so that a
conviction for two ounces or more would be for a conviction of more than 30 grams of
marijuana.
Based upon the respondent's testimony relating to the portions of the conviction
record that seem to relate to his arrest and then sentence served, along with the fact
that it is a court certified conviction record in the respondent's name, the Court finds that
that document establishes by clear and convincing evidence that the respondent has
been convicted as charged. Also, as stated earlier, given the weight of marijuana
necessary to be found guilty on that charge of New York State law, the Court finds that
the respondent is removable from the United States as charged by the Government.
The respondent is statutorily ineligible to seek cancellation of removal pursuant
to Section 240A(a) of the Act because he has not yet been a permanent resident of this
country for seven years. In a previous hearing it was determined that the respondent's
first entry into the United States occurred on September 3, 2010. Therefore, the

A061-494-852

April 20, 2016

Jill

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The respondent testified briefly to the effect that it was his belief that he pied

respondent has failed to qualify under the Act because he does not have sufficient

The attorney for the respondent then requested additional time to consult with his
client as to whether or not his client would be seeking voluntary departure. Since
removability had been contested and tried, the respondent is only eligible to seek
voluntary departure at the completion of the hearing. INA Section 101(f)(3) of the Act
would show that the respondent is unable to show good moral character because of his
criminal conviction. He is, therefore, ineligible for voluntary departure.
Based upon the foregoing, the following orders of the Court shall enter:
ORDER
ORDERED the respondent's request for a continuance is hereby denied;
FURTHER ORDERED the respondent's application for cancellation of removal is
hereby denied;
FURTHER ORDERED the respondent's application for voluntary departure is
hereby denied;
FURTHER ORDERED that the respondent is hereby ordered removed from the
United States to Jamaica.

Please see the next page for electronic

signature

A061-494-852

-J.@

JOHN B. REID
Immigration Judge

April 20, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

continuous residence in the United States.

/Isl/
Immigration Judge JOHN B. REID

A061-494-852

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reidj on June 6, 2016 at 11:29 AM GMT

April 20, 2016