U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesbllrg Pike. Sllite 2000 Falls Clrllrch. Virginia 22041

Williams, David W., Esq Law Offices of James G. Roche 1702 N. Main Street., Suite 201 Santa Ana, CA 92706-0000

OHS/ICE Office of Chief Counsel 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS

Immigrant & Refugee Appellate Center | www.irac.net

Name: MERCADO, EDWARD

A095-443-759

Date of this notice: 3/1/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Kendall-Clark, Molly

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Edward Mercado, A095 443 759 (BIA March 1, 2011)

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church; Virginia 22041

File: A095 443 759 - Los Angeles, CA

Date:

MAR -1 2011

In re: EDWARD MERCADO a.k.a. Eduardo Mercado a.k.a. Eduardo Mercado Barraza a.k.a. Eddie Ricardo IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

MOTION ON BEHALF OF RESPONDENT: David W. Williams, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, moves to reopen these proceedings seeking a further opportunity apply for adjustment of status. Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). Motions to reopen must be filed within 90 days of our final order. 8 C.F.R. 1003.2(c). Our final order was issued on May 27, 2009. Therefore, the instant motion, filed on July 6, 2010, is untimely. The Department of Homeland Security (DHS) has not filed a response, so it will be deemed unopposed. See 8 C.F.R. 1003.2(g)(3). The motion will be granted. In our last decision, we concluded that the respondent's 2002 conviction for possession of a controlled substance, which resulted in deferred adjudication, remains a conviction for immigration purposes under the law in the United States Court of Appeals for the Ninth Circuit. We agreed with the Immigration Judge that the respondent's first conviction in 1990 for possession of a controlled substance was accorded deferred adjudication, and would have qualified for Federal First Offender Act (FFOA) treatment. 18 U.S.C. 3607; Matter ofManrique, 21 I&N Dec. 58 (BIA 1995) (federal policy of leniency to first -time drug offenders would be extended to those aliens who had not previously been accorded first-offender treatment under any law); see also Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). The second conviction in 2002, however, would not have been afforded FFOA treatment under federal law, and we agreed that it remained a conviction under immigration law regardless of the respondent's satisfactory completion of the diversionary program. The respondent argues in his motion that he received ineffective assistance of counsel during proceedings and while the matter was on appeal. However, we need not reach this issue. Since our last decision, the Ninth Circuit has distinguished a suspended sentence, which is a predicate for a conviction under section 101(a)(48) of the Act, from "an unconditional non-incarceratory suspended sanction," concluding that the latter cannot be a predicate for a conviction for purposes of removal proceedings. Retuta v. Holder, 591 F.3d1181, 1188 (9th Cir. 2010). In the respondent's criminal proceeding for the second offense, he pied guilty, and the judge found that there was a factual basis for the defendant's plea. However, the judge deferred entry of judgment and imposed a $100 diversion restitution fee and noted a 1 day sentence of time served.

Cite as: Edward Mercado, A095 443 759 (BIA March 1, 2011)

. ..

'

A095 443 759 respondent was placed on 24 months deferred entry of judgment, which he completed satisfactorily. He was then allowed to withdraw the plea of guilty, which was set aside and the case was dismissed pursuant to section I 00.3 of the California Penal Code. Given the intervening case law, and considering the totality of the circumstances, we find that the unopposed motion presents exceptional circumstances warranting sua sponte reopening pursuant to 8 C.F.R. 1003.2(a); see Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). On remand, the parties should address the applicability of Retuta v. Holder, supra, to this case. Accordingly, the following orders will be entered.
The

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The respondent's motion to reopen is granted sua sponte. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this decision.

R THE BOARD

2
Cite as: Edward Mercado, A095 443 759 (BIA March 1, 2011)