.

Huq, Raquiba, Esq.

Legal Serices of New Jersey
U.S. Department of Justice
Executive Ofce fr I igation Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leebur Pike, Suite ZOOO
Falls Churc1, Vrginia 21041
OHS/ICE Ofice of Chief Counsel - NEW
P.O. Box 1898
100 Metroplex Dr. at Plainfield Ave., Ste. 402
Edison, NJ 08818
Newark, NJ 07101
Name: MOSCHILLO, ANIELLO A011 521-320
Date of this notice: 6/17/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Car
Chief Clerk
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Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011)
"
U.S. Department of Justice
Executive Ofce fr Imgation Review
Decision of the Board of Imigration Appeals
Falls Curch Virginia 22041
File: AOl 1 521 320 - Newark, NJ Date:
JUN 17 ZOU
I re: ANIELLO MOSCHILLO a.k.a. Giovanni Giovatto a.k.a. Tony Laureana a.k.a.
Nicholas Lore a.k.a. Tony Lureana a.k.a. Atonio Sabata a.k.a. Neil Sabata
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Raquiba Huq, Esquire
The respondent appealed fom the Febra 15, 2011, oral decision of the higation Judge,
which denied his request fr a continuance; fund him removable; detenined that he did not
demonstrate eligibility fr any relief fom removal; and ordered him removed fom the United
States to Italy. 1 The record will be remaded.
The Immigation Judge fund that the respondent was removable as charged, as convicted of
an aggavated flony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii),
in conjunction with section 101(a)(43)(B) of the Act, 8 U.S.C. 110l(a)(43)(B), and
as convicted of a controlled substance violation under section 237(a)(2)(B)(i) of the Act.
As substantiated by conviction documents, the respondent has a New Jersey conviction fr
"maufcture/distribute/dispense a controlled dangerous substance," cocaine. The conviction
documents show that the respondent pied guilty, and was adjudicated guilty by guilty plea, on
March 24, 1994. However, he filed to appear fr his scheduled sentencing on May 27, 1994, was
re-arested in 2008, and ultimately was sentenced to imprisonment of 5 years in March 2008. The
record refects that he was admitted to the United States as a lawfl penanent resident on or about
December 6, 1959.
On appeal, the respondent argues that the Immigation Judge should have ganted him a fher
continuance so that he could pursue post-conviction relief ("PCR") because he entered a defctive
guilty plea due to inefective assistance fom criminal counsel, in view of Padi a v. Kentuck,
559 U.S._, 130 S.Ct. 1473, 2010 WL 1222274 (Mach 31, 2010). At his fnal removal hearing
on Febrary 15, 2011, he acknowledged that the criminal court had rled unfvorably on his PCR
petition and indicated that he wished to appeal that decision. See Tr. at 52; I.J. at 2.
1 The proceedings befre the Imigration Judge in this matter were completed in Newark,
New Jersey through video conference pursuant to section 240(b)(2)(A)(iii) of the Imigation and
Nationality Act, 8 U.S.C. 1229a(b)(2)(A)(iii).
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Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011)
AOl I 521 320
We fnd that the Immigration Judge approprately went frard with the proceedings without
affrding the respondent an additional continuance. The decision to gant or deny a continuance is
within the discretion of the Immigration Judge, and good cause must be shown fr a continuance. See
Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1997); Matter of Sibrn, 18 I&N Dec. 3 54 (BIA
1983); 8 C.F.R. 1003.29. In this case, the Immigation Judge ganted eight previous continuances
spanning over 11 months, fom March 1, 2010, until April 14, 2010; fom April 14, 2010, until
May 12, 2010; fom May 12, 2010, until September 7, 2010; fom September 7, 2010,
until October 7, 2010; fom October 7, 2010, until October 14, 2010; fom October 14, 2010, until
December 8, 2010; fom December 8, 2010, until Januar 6, 2011; and fom Januar 6, 2011,
until Febrar 15, 2011. These continuances were given so that the respondent could pursue PCR.
The frst continuance also was given so that the respondent could locate an immigation attorey to
represent him, and he was represented by counsel begnning with the second hearing on April 14,
2010. We agree that a ninth continuance was not warated, under the circumstances of this case.
Concering the validity of the respondent's conviction, the fct that he may be pursuing PCR in
the fr of a collateral attack on that conviction in state criminal court does not afect its fnality fr
fderal immigation purposes. See Matter of Adetiba, 20 l&N Dec. 506 (BIA 1992). The respondent
has presented no evidence with this appeal that any attack on his conviction has resulted in any
vacatur. I Padilla v. Kentuck, supra, the United States Supreme Court rled that a lawyer
representing an alien in connection with a guilty plea to a criminal ofense has a constitutional
duty to advise the alien about the risk of deportation arising fom the conviction. However, the
respondent's speculation that his conviction might be invalid, including in light of Padilla v.
Kentuck, supra, does not change the fnality fr immigation puroses of such conviction, unless
and until it were to be overed by the criminal court. See Matter of Ponce de Leon, 21 I&N Dec.
154 (A.G. 1997; BIA 1997, 1996). He thus stands convicted of the New Jersey cocaine trafcking
cnme.
Consistent with the respondent's appellate assertions, however, we fnd that the
Immigation Judge should have allowed him to apply fr a waiver of inadmissibility under section
212(c) of the Act, 8 U.S.C. 1182(c). The section 212(c) waiver was largely eliminated by the
Illegal Imigation Refr and Imigant Responsibility Act of 1996 ("I"), Division C of
Pub. L. No. 104-208, 110 Stat. 3009-627. IISv. St. Cyr, 533 U.S. 289 (2001), the United States
Supreme Court held tat section 212(c) relief remains available, despite its repeal, only fr aliens
who ( 1) have convictions that were secured throug plea ageements prior to April 24, 1996, (2) have
a "lawful unrelinquished domicile of 7 consecutive years," and (3) are not deemed ineligible fr a
waiver fr having sered more than 5 years of incarceration fllowing a conviction fr a aggavated
flony. Id. at 326 (addressing the retroactive efect ofI and the Atiterorism and Efective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, on the availability
of section 212(c) relief; see also 8 C.F.R. 1212.3(. The respondent is a lawfl peranent
resident who appears to have a lawfl unrelinquished domicile exceeding 7 consecutive years.
He was fund removable based on the New Jersey drg traffcking conviction that is a
2
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Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011)
AOI l 521 320
aggavated felony. This conviction is pursuant to the March 24, 1994, plea ageement, which pre
dates April 24, 1996. He has not sered more than 5 years in prison fllowing that conviction.
Based on the present record, he appears to be statutorily eligible fr section 212(c) relief even in
view ofI and IS v. St. Cyr, supra.
Accordingly, we will remand the record. On remand, the respondent may submit an application
fr a section 212(c) waiver befre the hnmigration Judge. Both the respondent and the DHS may
introduce any and all available evidence that is relevant to the respondent's statutory and
discretionar eligibility fr relief.
ORER: The record is remanded to the hmigration Court fr frther proceedings and fr the
entr of a new decision, consistent with this opinion.
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Cite as: Aniello Moschillo, A011 521 320 (BIA June 17, 2011)
. '.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRATION COURT
Newark, New Jersey
File No.: A 011 521 320 February 15, 2011
In the Matter of
MOSCHILLO, ANIELLO IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 2 37 {a} ( 2) (A) (iii), Immigration and
Nationality Act; Section 237 (a) (2) (B) {i),
Imigration and Nationality Act.
APPLICATIONS: Continuance.
ON BEHALF OF RESPONDENT:
Margaret Cargioli
Legal Services of New Jersey
100 Metroplex Drive, Suite 4 02
Edison, New Jersey 08818
ON BEHALF OF OHS:
Alan Wolf
Senior Attorney
Department of Homeland
Security
Newark, New Jersey
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 69-year-old male, native and citizen of
Italy, who was admitted to the United States at New York, New
York December 6, 1959 as an inigrant. On March 14, 2008, he was
convicted in the Superior Court of New Jersey, Bergen County of
manufacture, distribute, dispense cocaine in violation of New
Jersey Statutes 2 {c) :35-5(a) (1), and 2(c) :35-5(b) (2). Respondent
admitted the truthfulness of the factual allegations contained on
the Notice to Appear {Exhibit l} and conceded removability
pursuant to Section 237 {a) (2) (A) (iii} of the Immigration and
1
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Nationality Act (Act), and pursuant to Section 237(a) (2) (B) (i) of
the Act. Based upon respondent's admissions, removability has
been established by clear and convincing evidence.
Because the respondent declined to designate a country of
removal, the Court, pursuant to Section 241 (b) (2) of the Act,
designated Italy should such action become necessary.
Rather than applying for any relief from removal, respondent
requested continuances to pursue post-conviction relief related
to his conviction for manufacture, distribute, dispense cocaine.
The Court granted numerous continuances for that expressed
purpose, including from May 12, 2010 to Septemer 7, 2010, from
September 7, 2010 until October 7, 2010, from October 7, 2010 to
October 14, 2010, from October 14, 2010 to November 4, 2010, from
November 4 to January 6, 2011, from January 6, 2011 to January
27, 2011. The Court was closed on January 27, 2011 due to
weather; the matter was reset to February 15, 2011, which, in
effect, gave the respondent additional time to pursue his post
conviction relief. Indeed, his post-conviction relief was
adjudicated by an order dated January 31, 2011 in the Superior
Court of New Jersey, Bergen County, a copy of which is in the
record. As acknowledged by his counsel, the post-conviction
relief motion was denied.
At the hearing on February 15, 2011, respondent's counsel
sought additional continuances to appeal this decision, opining
that the public defender who assisted him felt it was wrong and
A 011 521 320 2 February 15, 2011
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had a good chance of success on appeal. The Government, as they
had for almost all of the previous continuances, opposed a
further continuance for appeal of the denial of post-conviction
relief arguing that the respondent had a reasonable time to
pursue post-conviction relief as evidenced by the fact that a
decision on the relief was actually issued and that further time
was inappropriate.
Considering the entirety of the record, the Court concludes
s
the respondent ha. not established good cause to further continue
f
his case to appeal the denial of his post-conviction relief
motion. As noted, he has had some months to pursue post-
conviction relief. Unfortunately, it was not successful, as
evidenced by the order denying it. However, the result of any
appeal is speculative and the adjudication of an appeal is as
collateral to these proceedings as was the original motion for
post-conviction relief. Under these circumstances, the Court
cannot consider good cause has been established to further
continue the case for appeal of denial of the post-conviction
relief motion, and that motion is denied.
Respondent was given an opportunity to file applications
based on any fear of being persecuted or tortured upon return to
Italy. The Court was informed on May 1?, 2010 that he did not
wish to pursue those options. This was reaffirmed at the hearing
on February 15, 2011. The respondent does not appear eligible
for any relief from removal, and he has not requested any relief
A 011 521 320 3 February 15, 2011
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from removal. Therefore, although he has certainly been a
resident for a long time, the Court has no choice but to order
that he be removed to Italy on the charges contained in the
Notice to Appear.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the
United States to Italy on the charges contained in the Notice to
Appear.

ARG T R. REIHENBERG
Imigration Judge
A 011 521 320 4 February 15, 2011
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- 'r
CERTIFICATE PAGE

\
I hereby certify that the attached proceeding before
JUDGE MARGARET R. REICHENBERG, in the matter of:
MOSCHILLO, ANIELLO
A 011 521 320
Newark, New Jersey
is an accurate, verbatim transcript of the recording as provided by
the Executive Office for Immigration Review and that this is the
original transcript thereof for the file of the Executive Office
for Immigration Review.
April l, 2011
{completion date)
By submission of this CERTIFICATE PAGE, the Contractor certifies
that a Sony BEC/T-147, 4-channel transcriber or equivalent and/or
CD, as described in Section C, paragraph C.3.3.2 of the contract,
was used to transcribe the Record of Proceeding shown in the above
paragraph.
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