U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BOS

P.O. Box 8728
Boston, MA 02114

Name: MARTINEZ, WAGNER ANEUDIS

A 043-447-800

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Masferrer, Eduardo, Esq.

Masferrer & Associates, P.C.
45 Bromfield Street
5th floor
Boston, MA 02108

Date of this notice: 1/12/2016

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

DOrt.ltL Ca.M.J
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016)
...@%'.WJ

nnazwc

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A043 447 800- Boston, Massachusetts

Date:

JAN 1 2 2015

In re: WAGNER ANEUDIS MARTINEZ a.k.a. Wagner Martinez

APPEAL
ON BEHALF OF RESPONDENT: Eduardo Masferrer, Esquire
APPLICATION: Reopening
The respondent has filed a timely appeal of an Immigration Judge's August 19, 2015, decision,
denying his motion to reopen. The record will be remanded to the Immigration Court for further
proceedings consistent with this opinion and the entry of a new decision.
The respondent is a native and citizen of the Dominican Republic who was initially admitted to
the United States as an immigrant on March 31, 1992. The respondent was physically removed
from the United States on October 2, 2003, pursuant to an Immigration Judge's May 14, 2003,
decision ordering his removal on account of his 1997 Massachusetts "drug-trafficking" aggravated
felony conviction. On June 25, 2015, the respondent filed a motion to reopen with the
Immigration Court alleging that he "is no longer removable as charged [because] the underlying
criminal conviction forming the basis of his removability has been vacated . . . due to a substantive
and procedural defect in the respondent's plea." In support of the motion, the respondent
presented an order from the Boston Municipal Court, dated June 16, 2015, issued pursuant to a
2012 remand order from the Massachusetts appellate court, finding the respondent suffered
prejudice as a result of former counsel's ineffective assistance in his 1997 criminal proceedings,
and granting respondent's request to withdraw his guilty plea and motion for a new trial. The
Massachusetts criminal court's action was premised upon what it perceived to be substantive and
procedural defects in the underlying criminal proceedings, rather than some form of
post-conviction relief. See Rumierz v. Gonzales, 456 F.3d 31, 34-35 (1st Cir. 2006) (a vacated
conviction is no longer a "conviction" within the meaning of the immigration laws only "if a court
with jurisdiction vacates [the] conviction based on a defect in the underlying criminal
proceedings."); see also Herrera-lnirio v. INS, 208 F.3d 299 (1st Cir. 2000).
As argued by the respondent on appeal, a conviction vacated on constitutional grounds is void
ab initio, and therefore cannot be considered valid at the time it was rendered. See
Matter ofAdamiak, 23 l&N Dec. 878 (BIA 2006); see also Commonwealth v. Sylvain,
466 Mass. 422, 423-24 (2013) (Massachusetts Supreme Judicial Court found that a plea made
without counsel's "accurate" advice regarding the immigration consequences of a conviction,
when prejudicial, is constitutionally defective). The fact that it took over a decade for the
respondent to vindicate his rights does not undermine a finding that enforcement of a removal
order that was predicated upon a criminal conviction that was constitutionally defective at the
time it was entered, constitutes a gross miscarriage of justice sufficient to warrant reopening the
proceedings of a removed alien. Matter of Malone, 11 I&N Dec. 730, 731-32 (BIA 1966)
(finding gross miscarriage of justice where alien's deportation order was clearly not in accord
with the law as interpreted at the time of issuance); see also Bolieiro v. Holder, 731 F.3d 32, 37
Cite as: Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016)

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IN REMOVAL PROCEEDINGS

A043 447 800'

(1st Cir. 2013) (citing Perez Santana v. Holder, 731 F. 3d 50, 61 (1st Cir. 2013)) (court found in a
case involving an untimely motion to reopen, that the regulations imposing "post-departure bar"
on a motion to reopen removal proceedings following an alien's departure cannot be used to
preclude a noncitizen alien from vindicating his statutory right to a motion to reopen).

ORDER: The motion to reopen is granted and the record is remanded to the Immigration
Judge for further proceedings consistent with this opinion and the entry of a new decision.

2
Cite as: Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016)

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Consequently, we find that reopening of the proceedings is appropriate under the particular
circumstances of this case, and the record will be remanded to the Immigration Judge for further
proceedings consistent with this opinion and the entry of a new decision. On remand, the
Immigration Judge will consider the new evidence offered by the respondent relating to his
removability, as charged, and to determine whether the proceedings should now be terminated.
Accordingly, the following order will be entered.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
JFK FEDERAL BLDG., ROOM 320
BOSTON, MA 02203

IN THE MATTER OF
MATINEZ, WAGNER ANEUDIS
0202263

FILE A 043-447-800

DATE: Aug 19, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECJef1.rON OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c} (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) {3} IN DEPORTATION PROCEEDINGS OR SECTION 240(c) {6),
8 U.S.C. SECTION 1229a(c} (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
JFK FEDERAL BLDG., ROOM 320
BOSTON, MA 02203
OTHER:

CC: MAPPLEBECK, LEIGH (TAU)

JFK BLDG, ROOM 425
BOSTON, MA, 022030000

FF

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Masferrer & Associates, P.C.

Masferrer, Eduardo
45 Bromfield Street
5th floor
Boston, MA 02108

,..
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS

MARTINEZ, Wagner Aneudis,

a.k.a. Wagner Martinez,
A 043-447-800

)
)
)
)

In Deportation Proceedings
DETAINED

-R-es_p_o-nd-en-t_____________________ )
CHARGES:

Immigration and Nationality Act (INA or Act) 237(a)(2)(B)(i): Alien who,

at any time after admission, has been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a foreign country related to a controlled substance (as defined in
section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a
single offense involving possession for one's own use of thirty grams or less
of marijuana; and
INA 237(a)(2)(A)(iii): Alien who, at any time after admission, has been
convicted of an aggravated felony as defined in section 10l(a)(43)(B) of the
Act, an offense related to the illicit trafficking in a controlled substance (as
described in section 102 of the Controlled Substances Act, 21 U.S.C. 802),
including a drug trafficking crime (as defined in 18 U.S.C. 924(c))

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT

Eduardo Masferrer, Esq.
Masferrer & Associates, P .C.
43 Bromfield Street, 5th Floor
Boston, MA 02108

ON BEHALF OF DBS
Assistant Chief Counsel
Office of the Chief Counsel
15 New Sudbury Street, Room 425
Boston, MA 02108

ON THE RESPONDENT'S MOTION TO REOPEN

I. Procedural History
The Respondent, Wagner Aneudis Martinez, is a thirty-seven year old native and citizen of
the Dominican Republic. Exh. l; see Resp't's Mot. to Reopen, Tab B, p. 3 (June 25, 2015). On

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IN THE MATTER OF:

On May 14, 2003, the Respondent appeared represented at the Court. Through counsel, he
submitted written pleadings admitting to all of the NTA's factual allegations and conceding that he
was removable as charged. Exh. 2. The Respondent designated the Dominican Republic as the
country to which his removal should be directed in the event the Court ordered him removed. Id.
He indicated his intent to apply for relief from removal in the forms of a waiver of inadmissibility
under section 212(c) of the Act; and, in the alternative, requested permission to voluntarily depart
the United States in lieu of removal. See id.
During the May 14, 2003, hearing the Court found that clear and convincing evidence namely the Respondent's admissions and concessions in his written pleadings and a certified
record of conviction submitted by the government - established the Respondent's removability
pursuant to both charges in the NTA. See Exh. 5. The Court further found that the Respondent's
conviction made him ineligible for a waiver of inadmissibility and voluntary departure.
Accordingly, the Court ordered the Respondent removed to the Dominican Republic. Order of the
Immigration Judge (May 14, 2003). Although the Respondent reserved his right to appeal the
Immigration Judge's decision to the Board of Immigration Appeals (BIA or Board), he ultimately
did not appeal the decision. See id.
The Respondent was deported from the United States on or about October 2, 2003. See
Resp't's Mot. to Reopen, Tab E, p. 13. On February 9, 2015, after the Respondent was found in
the United States on or about December 20, 2011, he was indicted in the United States District
Court for the Southern District of Florida for the offense of illegal reentry after removal in
violation of ''Title 8, United States Code, Section 1326(a) and (b)(2)." Id. Pursuant to this
indictment, the Respondent was placed in federal custody, where he currently remains. Id. at Tab
B, p. 4.

1 The Homeland Security Act of 2002, as amended, transferred the enforcement, services, and administrative functions
of the INS to the Department ofHomeland Security (DHS). Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat.
2135, 2192 (Nov. 25, 2002); see also 68 Fed. Reg. 9824 (2003).

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September 30, 2002, the Immigration and Naturalization Service (INS) 1 personally served the
Respondent with a Notice to Appear (NTA). Exh. 1. The NTA alleges that the Respondent: (1) is
not a citizen or national of the United States; (2) is a native and citizen of the Dominican Republic;
(3) was admitted to the United States at San Juan, Puerto Rico on or about March 31, 1992, as an
"Immigrant (FX3);" and (4) was, on July 1, 1997, convicted in the West Roxbury (Massachusetts)
District Court for the offense of "Manufacturing, Distributing, or Dispensing a Class B Controlled
Substance, to wit: Cocaine, in violation of Chapter 94C, Section 32A of the Massachusetts General
Laws.'' Id. On the basis of these allegations, the NTA charges the Respondent as removable from
the United States pursuant to section 237(a)(2)(B)(i) of the Act, as an alien convicted of a
controlled substances offense; and pursuant to section 237(a)(2)(A)(iii) of the Act, as an alien
convicted of an illicit trafficking in a controlled substance aggravated felony. Id. The NTA
ordered the Respondent to appear at the Boston Immigration Court (Court) to show why he should
not be removed from the United States. Id.

.,
II. Respondent's Motion to Reopen

The Respondent's June 25, 2015, Motion to Reopen additionally requests that the Court
issue an order staying his removal pending the Court decision on reopening. Id. at Tab A, p. 1.
III. Standards of Law
An Immigration Judge may, upon his own motion at any time, or upon a motion of OHS or
the Respondent, reopen or reconsider any case in which he has made a decision, unless jurisdiction
is vested with the Board. 8 C.F.R. 1003.23(b)(l)(2015).
As a general matter, motions to reopen are "disfavored as contrary to 'the compelling
public interests in finality and the expeditious processing of proceedings."' Raza v. Gonzalez, 484
F.3d 125, 127 (1st Cir. 2007) (quoting Roberts v. Gonzales, 422 F.3d 3 3, 35 (1st Cir. 2005)).
Accordingly, there are procedural and substantive bars to reopening removal proceedings. See
Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010). Generally, a motion to reopen must be filed
within 90 days of the date of entry of a final administrative order of removal, deportation, or
exclusion. INA 240(c)(7)(C)(i) (2015); see INA 101(a)(47) (order of removal becomes final
upon determination by Board affirming such order, or expiration of period in which alien is
permitted to seek review by Board, whichever is earlier).
3

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On June 25, 2015, the Respondent filed a Motion to Reopen purporting to offer previously
,,
unavailable evidence "material to the issue of removability. Resp't's Mot. to Reopen, Tab A, p. 1
(June 25, 2015). Specifically, the Respondent's Motion argues that he "is no longer removable as
charged [because] the underlying criminal conviction forming the basis of his removability has
been vacated ...due to a substantive and procedural defect in the Respondent's plea." Id. A
"Memorandum of Decision on Defendant's Motion to Vacate Guilty Plea, " issued by the West
Roxbury Division of the Boston Municipal Court on June 16, 2015, and attached to the
Respondent's Motion to Reopen, details the procedural history concerning the Respondent's 1997
guilty plea to ''Distribution of a Class B substance." Id. at Tab D, p.9. According to the
Memorandum, in 2002, the Respondent filed a motion to vacate his plea, which was denied. Id. In
2010, following the Supreme Court's holding in Padilla v. Kentucky, 559 U.S. 356, 374 (2010),
that the Sixth Amendment demands that "counsel must inform her client whether his plea carries a
risk of deportation," the Respondent filed another motion to vacate his plea. See id. The judge
considering the Respondent's 2010 motion found that the Respondent's criminal defense attorney
had not properly advised the Respondent of the immigration consequences associated with his
plea. Id. However, the judge denied the Respondent's motion, finding that, due to the strength of
the Commonwealth's case against the Respondent, the Respondent suffered no prejudice as a
result of his plea. Id. The Respondent appealed this decision. Id. The Massachusetts Appeals
Court, with the benefit of a case decided by the Supreme Judicial Court of Massachusetts
clarifying Padilla's prejudice prong, remanded the Respondent's case "for a new hearing on the
[Respondent's 2010] motion for a new trial." Id. at 9-10. On remand, the judge found that the
Respondent suffered prejudice as a result of his guilty plea. Id. at 12. Accordingly, on June 16,
2015, the judge granted the Respondent's "motion to withdraw his guilty plea and obtain a new
trial." Id.

The suggestion that [the respondent's untimely] motion stands on different

statutory footing than a timely motion appears nowhere in the BIA's analysis, or in
the authorities it relied on to dismiss her appeal. If the agency wishes to articulate
a more nuanced basis for rejecting her motion based upon her motion's
untimeliness, it may do so, but we decline to supply that basis on the agency's
behalf.

Bolieiro v. Holder, 731 F.3d 32, 38 ( 1 st Cir. 2013).

Notwithstanding the post-departure bar, when a motion to reopen is filed after the removal
order has become final and after the movant has in fact been physically removed from the United
States, the imperative of finality precludes reopening except upon a showing that enforcement of
the removal order would constitute a gross miscarriage of justice. Matter ofRoman, I 9 I&N Dec.
855, 856-57 (BIA 1988) (holding that an alien may not collaterally attack a prior removal order
unless he can show that the prior order resulted in a gross miscarriage of justice). Enforcement of
a removal order constitutes a gross miscarriage of justice only if the order could not have
withstood judicial scrutiny under the law in effect at the time of its issuance or execution. Matter
of Farinas, 12 l&N Dec. 467,471-72 (BIA 1967) (finding gross miscarriage of justice where the
alien's deportation order, which was valid when entered, became invalid by virtue of controlling
circuit precedent issued prior to the execution of the order); Matter ofMalone, 11 I&N Dec. 730,
731-32 (BIA 1 966) {finding gross miscarriage of justice where alien's -deportation .order was
clearly not in accord with the law as interpreted at the time of issuance).
While the Court may reopen a case under its sua sponte power, such discretionary authority
is used sparingly as a general rule and is not meant to cure filing defects or circumvent the
regulations. See Matter ofBeckford, 22 l&N Dec. 1216 {BIA 2000); Matter ofJ-J-, 21 I&N Dec.
976 (BIA 1997). Nor is it meant to be a "general remedy for any hardships created by enforcement
4

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Federal regulations prohibit the filing of a motion to reopen following removal or departure
under a removal order. 8 C.F.R. 1003.23(b)(l ) ("A motion to reopen or to reconsider shall not
be made by or on behalf of a person who is the subject of removal, deportation, or exclusion
proceedings subsequent to his or her departure from the United States."). However, the United
States Court of Appeals for the First Circuit determined that the statute codifying the motion to
reopen procedure "does not denominate a physical presence or geographic limitation in its general
provisions." Perez-Santana v. Holder, 731 F.3d 50, 53 (1st Cir. 2013). Accordingly, finding that
the "plain meaning of the statute controls," the First Circuit held that "the [regulatory] post
departure bar cannot be used to abrogate a noncitizen's statutory right to file a motion to reopen."
Id. at 61. In its decision, the First Circuit acknowledged that the statute codifying the motion to
reopen procedure applies a 90 day filing limit to motions to reopen. Id. at 53. The First Circuit
declined to address, however, the government's argument that because untimely motions to reopen
"fall outside the statute, " such motions to reopen remain subject to the regulatory post-departure
bar. Id. at 61 (finding the government's argument to have "no effect on the outcome of [the] case,"
which concerned a timely filed motion to reopen). In a subsequent case concerning an untimely
motion to reopen, which the Board concluded was prohibited by the post-departure bar, the First
Circuit remanded to the Board, stating,

..
of the time and number limits in the motions regulations, but rather as an extraordinary remedy
reserved for truly exceptional situations." Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA
1999); see also Matter ofJean, 23 I&N Dec. 373, 380 n. 9 (A.G. 2002).
IV. Findings of Fact and Conclusions of Law

Even assuming that the regulatory post-departure bar does not preclude the Court from
considering the Respondent's Motion to Reopen, the Court will decline the Respondent's request
to reopen his proceedings under the Court sua sponte authority. See Resp't's Mot. to Reopen, Tab
B, p. 4. The Court recognizes that the Respondent's 1 997 conviction - which establishes the basis
of the Respondent's charges of removability- has been vacated on substantive grounds. See id. at
Tab D, p. 11-12. However, the Respondent's conviction was not vacated until June 2015, and the
vacatur was premised upon a 2010 Supreme Court decision. See Resp't's Mot. to Reopen, Tab D,
pp. 9-12. Despite the Respondent's attempt to have his conviction vacated in 2002, which was
either prior to or during his removal proceedings, the conviction was valid when the Immigration
Judge ordered the Respondent removed on May 14, 2003, and it remained valid when the
Respondent was removed from the United States around October 2, 2003. See Exh. 5; Resp't's
Mot. to Reopen, Tab D, p. 9 (revealing that the Respondent's 2002 attempt to have his conviction
vacated was unsuccessful). Accordingly, the Respondent's removal order, premised upon a valid
conviction, would have ''withstood judicial scrutiny under the law in effect at the time of its
issuance or execution." See Matter ofFarinas, 12 l&N Dec. at 471-72; Matter ofMalone, 11 I&N
Dec. at 731-32. The enforcement of the Respondent's removal order, therefore, does not constitute
a gross miscarriage of justice sufficient to reopen the proceedings of a removed alien. See Matter
of Roman, 19 I&N Dec. at 856-57. Based on the Court's determinations that the Respondent's
removal :order was valid when .issued and ,executed, .and consequently, that its enforcement did ,not
result in a gross miscarriage of justice, the Court finds that the Respondent's case does not present
a "truly exceptional situation." The Court will therefore decline to reopen the Respondent's
proceedings sua sponte. See Matter ofG-D-, 22 l&N Dec. at 1133-34.
Based on the foregoing, the following orders are entered:
5

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The Respondent's Motion to Reopen is untimely. The Respondent's removal order became
final on June 13, 2003. See Order of the Immigration Judge (May 14, 2003); INA
10l (a)(47)(B)(ii). The Respondent filed his Motion to Reopen more than twelve years later, on
June 25, 2015, which is well outside the 90 day filing deadline generally applicable to motions to
reopen. See Resp't's Mot. to Reopen (June 25, 201 5); INA 240(c)(7)(C)(i). The Respondent's
Motion to Reopen does not allege that any statutory exception to the 90 day filing deadline applies
in his case. See Resp't's Mot. to Reopen, Tabs A-B, pp. 1-5 (June 25, 2015). The Respondent
therefore does not have a statutory right to file a motion to reopen outside the 90 day filing
deadline established in the Act. INA 240(c)(7)(C)(i). As such, his untimely Motion to Reopen
arguably remains subject to the post-departure bar. See Perez-Santana, 731 F.3d at 61; Bolieiro,
731 F.3d at 38. The application of the bar in the Respondenfs case prohibits his Motion to
Reopen because it was filed subsequent to his October 2003 removal. See 8 C.F.R.
1003.23(b)(l ); Resp't's Mot. to Reopen, Tab E, p . 13.

.. . .

'

ORDERS
IT IS HEREBY ORDERED that the Respondent's MOTION TO REOPEN is DENIED.

8 a

Date

I S"
United States Immigration Judge

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IT IS FURTHER ORDERED that the Respondent's request to STAY REMOVAL is

DISMISSED as moot.