U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike. Suite 2000 Falls Church, Virginia 20530

BERGIN, DENIS PATRICK LAW OFFICES 24 JEWEL ROAD P.O. BOX 316 HOLBROOK, MA 02343

OHS/ICE Office of Chief Counsel BOS P .0. Box 8728 Boston, MA 02114

Immigrant & Refugee Appellate Center | www.irac.net

Name: VENTURA-ARIAS, MARTEN LOR ...

A 057-144-173

Date of this notice: 11/18/2013

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

DorutL ct1/VJ.)
Donna Carr

Chief Clerk

Enclosure Panel Members: Holmes, David B.

lucasd Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Marten Lorenzo Ventura-Arias, A057 144 173 (BIA Nov. 18, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A057 144 173 - Boston, MA

Date:

tlOV 18 2013
In re: MARTEN LORENZO VENTURA-ARIAS IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: Denis P. Bergin, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The respondent filed a timely motion to reopen on October 4, 2013, after the Board dismissed his appeal on September 23, 2013. The Department of Homeland Security (the "DHS") has not responded to the motion, which will be granted. The respondent, a native and citizen of the Dominican Republic, was found subject to removal based on an April 13, 2010, Massachusetts conviction for trafficking in cocaine. Evidence is presented that, on September 16, 2013, a state court Special Magistrate ordered that the respondent's motion to withdraw his guilty plea was allowed. The motion was based on evidence that the primary chemist who tested sarriples in the respondent's criminal case had been accused of serious misconduct in the laboratory, and that the respondent's criminal plea was not knowing and voluntary because he was unaware of these grounds to challenge the drug testing. The Board finds that the evidence presented establishes that the underlying conviction which served as the basis for the respondent being subject to removal has been vacated due to a defect in the criminal proceeding.
If a court with jurisdiction vacates a conviction based on a defect in the

underlying criminal proceedings, the respondent no longer has a "conviction" within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8U.S.C.I101(a)(48)(A). See Matter ofAdamiak, 23 I&N Dec. 878 (BIA 2006)(conviction vacated pursuant to Ohio law for a guilty plea is no longer a valid convicion for immigration purposes). failure of the trial court to advise the alien defendant of the possible immigration consequences of

As the respondent is no longer .subject to removal from the United States based upon the charges against him, removal proceedings against the respondent are terminated.

FOR THE BOARD

Cite as: Marten Lorenzo Ventura-Arias, A057 144 173 (BIA Nov. 18, 2013)
,, fJ4JfaL