Wednesday, August 4, 2010

BIA generally extends full faith and credit to state-court decisions which vacate or modify, nunc pro tunc, criminal convictions.

BIA decision extending full faith and credit to a Georgia vacatur.

Decision of the Board of Immigration Appeals
IN REMOVAL PROCEEDINGS APPEAL

File:    A044 512 066 - Atlanta, GA   
In re: MOBUTO KIZUNGAa.k.a. Joseph Mobuto Kizunga

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:    Termination of proceedings JUL 292010
Decision of the Board of Immigration Appeals IN REMOVAL PROCEEDINGS APPEAL
File:    A044 512 066 - Atlanta, GA In re: MOBUTO KIZUNGA a.k.a. Joseph Mobuto Kizunga

CHARGE:
Notice:    Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony

APPLICA TION:    Termination of proceedings JUL 29, 2010

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's September 17,2008, decision, terminating proceedings. The respondent, a native and citizen of the Democratic Republic of the Congo and a lawful permanent resident of the United States, opposes the appeal.    The appeal will be dismissed.

We review findings of fact, including the determination of credibility, under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008).

We adopt and affirm the Immigration Judge's decision. Matter of Burbano, 20 I&N Dec. 872, (BIA 1994).    The Immigration Judge terminated proceedings, reasoning that the respondent had presented sufficient evidence that his state court criminal convictions for domestic violence and interfering with a 911 call had been vacated and were no longer convictions for immigration purposes. The DHS argues that the Georgia state court, in vacating the convictions, acted ultra vires, and that the respondent is removable as an alien who has been convicted of an aggravated felony.

This Board generally extends full faith and credit to state-court decisions which vacate or modify, nunc pro tunc, criminal convictions. Matter of Cota- Vargas, 23 I&N Dec 849 (BIA 2005) (a court's decision to reduce or modify an alien's criminal sentence nunc pro tunc); Matter of Song, 23 I&N Dec. 173 (BIA 2001) (order changing the length of imprisonment such that the crime no longer qualified as an aggravated felony); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) (conviction vacated pursuant to section 440 of the New York criminal procedure law). In this case, the state court action is entitled to full faith and credit. According to the document, a judge of the A044 512 066 state court of Carroll County and an assistant solicitor of that county agreed with the respondent that his conviction had been obtained after his Sixth Amendment right to counsel was violated and that his plea had not been entered into in a knowing and voluntary fashion. We are not convinced by the DHS arguments that the judge and the assistant solicitor were acting ultra vires. We do not dispute the possibility that the document was not fully compliant with particular details of Georgia procedure, but we cannot conclude that any such irregularities were so significant as to preclude us from extending full faith and credit.

The following order shall be issued. ORDER: The DHS's appeal is dismissed.
Case Link download

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1 Comments:

Blogger jack said...

Thank you for this entry. I’m an immigration lawyer and this is very useful information for me.

August 4, 2010 at 3:31 PM  

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