Duong, Hanh H.

Law Ofce of Hanh Duong

13370 Branch View Ln Ste. 160
Dallas, A75234
Name: NGYEN, SON HOANG
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Executive Ofce fr Immigation Review
8oarof IigratiooAppea/s
uceoft/ec/erk
5107 leeb11r Pke, S11ite 2000
Fall Ch11rch. Vrinia 12041
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, A75062-2324
A 097-683-305
Date of this notice: 5/16/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
|D0l M0DU0f5.
NBDUB, CSB L.
Sincerely,
DC c O
Donna Carr
Chief Clerk
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Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)
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File: A097 683 305 - Dalas, Teas
mre: SON HOAG @
I ROVA PROCEEIGS
APPEA
Date:
ON BEHALF OF RESPONENT: Hnh H. Duong , Esquire
APPLICATON: Reopening
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The respondent, a natve and citizen of O has fled a timely appeal of a Immigton
Judge's April 19, 2012, orde, denying his moton to repen. The rerd will be remande to the
Immigation Cour fr fher procedings in accordace with this opinion, and the entry of a new
decision.
The Boad reviews a Immigation Judge's findings of fac, including fndings a to the
creibility of testmony, under the "clely eroneus" sdard. See 8 C.F.R. {1003. l(d)(3)(i);
Mater of R-S-H-, 23 l&N De. 629 (BIA 2003); Matr of S-H-, 23 I&N De. 462 (I 2002).
The Boad reviews questons of law, discreton ad judgent in a appeal of a Immigtion
Judge's deision de novo. See 8 C.F.R {1003.l(d)(3)(ii).
To the eent that the Immigation Judge premised his denial of the respondent's moton H
reope on the failure to present evidence that the 2009 Teas convicton fr attempted pssession
of cocane been vacted, we fnd that it was corey deided and prope under the
circmsces.1 However, subseuent to the fling of his appeal of the Immigation Judge's
decision, the respondent has presented evidence that his 2009 Texas cnviction fr at empted
possession of cocaine has ben vacte by the Texa sentencing cour. Specaly, the
respondent ofered the cpy of a order dae November 3, 2011, issue by the 195
t
District
Cour, Dallas County, Te, pursat Ha applicaton fr a Wrt of Habea Cors, setng aide
and vacaing the repondent's 2009 Tes cnvicton fr at empte possession of ccaine on
constitutiona due process gounds.
We consider the paricular circumstaces of this case presents an "exceptional situation" that
warats the exercis of our sa sonte ahorty to reopen these proe ngs, as a matter of
discreton. See Mat er of G-D-, 22 l&N Dec. 1132, 1133-34 (I 1999) (sag that "as a
general matte, we invoke our sonte athorty sparingly, teating it not as a general remey
We note, however, that the Immigation Judge also referenced unspeife aguments ofered by
te Deparment of Homeland Seurity (''DHS") in oppositon to the responden's moton to
reopen, as the basis fr his denial of the motion. Ordinarily, checking of a box in a frm orde
with a general satement of aeement wth the reasons stated in opposition to the moton, without
identifing those reasons, prvides insufcient basis for adeuae review by the Boad. See
8 C.F.R. 1240.12.
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Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)
A097 683 305
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fr ay hadships creted by enforcement of tme ad number limits in the motons regulations, but
as an extraordina remedy resere fr tly exceptonal situations,,). Conseuently, we fnd it
apprpriate to repen these removal proceings sa snte. See id
The Boad in Matter of Pickring, 23 I&N De. 621 (IA 2003), held a cour vacaes a
convicion based upon a prceural or substantive defect in the underlying proceings, there is no
longer a cnviction fr immigation purposes. The United Staes Cour of Apeals fr the Fifh
Circuit, the jurisdiction wherein this case arises, has held that vacated cnvictions remain valid for
immigaton puroses, regadless of the reson for the vacr. See Rentera-Gonlez v. IS,
322 F.3d 804 (5th Cir. 2003). However, the cour since exresse concer over its deision
in Rntera. See Disciio v. Ashcof, 369 F.3d 472 (5th Cir. 2004), vace by
Discipio v. Ashcof, 417 F.3d 48 (5th Cir. 2005) (antng rspondent's moton to rd to the
Boad in order to terinate procedings). Morever, we cnsider that in
Gaon-Romero v. Gnles, 497 F.3d 694, 694-95 (5th Cir. 2007), the cour note that, fllowing
its deision in Discipio v. Ashcrof, spra, the goverent underook a policy review to deerine
how removal cases arsing in the Fifh Circit that involve vacted cnvictions should be tete.
The cur obsere mthe govwent conclude that it would not aue that removal deisions
be upheld pmnt to Rntera, but rher would reue rd to the Boad s that the
goverent culd tae acon in acord with Pickring. See Gaon-Romero v. Gnles, spra,
at 694-95.
Conseuently, the profered evidence raises the queston as to whether or not the vacte
cnviction remains a conviction within the meaning of the immigaton laws unde curent Fifh
Circ ad Boad preet. Additional fact-fnding Hdeene its Hon the prei a
a matter of law, is reuire. See Mater of S-H-, 23 I&N De. 462, 46-65 (IA 2002). mths
regard, on remand, the Immigaton Judge will als consider the new evidence ofere by the
respondent a it relates to the issue of inadmissibilit under section 212(a)(2)(A)(i)(I) of the Act,
and to deerine whether the respondent now estlish his eligibility fr relief fom removal,
including adjustment of status baed on an approved immediate relative vis peition fled on his
behalf by his Unite Staes citizen spouse.
Acordingly, the fllowing order will be entere.
ORE: The rerd will be remande to the Immigation Cour fr fhe prce s in
acordace with this opinion and the entry of a new decision.
[
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Cite as: Son Hoang Nguyen, A097 683 305 (BIA May 16, 2013)

4 I

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DUONG ASSOCIATE PLLC
DUONG, H H
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
1100 COMMERCE ST., ROOM 404
DALLAS, TX 75242
13370 BRCH VIEW LE STE 160
DALS, TX 75234
IN THE MTTER OF
NGYEN, SON HOAG
FILE A 097-683-305
UALE TO FORWAD - NO ADDRESS PROVIDED
r .
4
t ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINA ULESS A APPEAL IS FILED WITH THE BOA OF IMIGRTION APPEAS
WITHIN 30 CALENA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS P INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEA.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMETS, P FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOAD OF IMMIGRTION APPEAS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMIGRTION JUDGE P THE RESULT
OF YOUR FAILUE TO APPEAR AT YOUR SCHEULED DEPORTATION OR REMOVA HEING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRTION P NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION.PROCEEDINGS OR SECTION 240(c) (6),
8 O..1. SECTION 1229a (c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOU MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1100 COMERCE ST., ROOM 404
DALLS, TX 75242
OTHER:
CC: MERRILL-JOHSON, MAGOT
125 E. HHY 114, STE 500
IRVING, TX, 75062
COURT =K
IMMIGRTION COURT FF
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In the Marter of:
NGYEN, SON HOAG
RESPONDENT
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U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMMIGRTION COURT
1100 COMMERCE ST., ROOM 404
DALLAS, TX 75242
Case No.: A097-683-305
Docket: DALLAS, TEXS
IN REMOVAL PROCEEDINGS
ORDER OF THE IMIGRATION JUDGE
Upon consideration of RESPONENT
Motion o Reconsider an Immigration Judge's decision
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Motion to Reopen proceedinss
:

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filed in the above entitled matter, it is hereby o+dered that the motion
) Be Granted
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| X Be Denied
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Appeal: NO APPEAL (A/I/B}
Appal Due By: Jun 8, 2011
TO:
DATE:
At
Form EOIR 2 - 2T
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( P)
n's ATT/REP _Hs
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