U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, V1rg1ma 22041

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Little, Anna Cecelia OHS/ICE Office of Chief Counsel - ELZ
Attorney at Law 625 Evans Street, Room 135
426 Route 36, Suite 3 Elizabeth, NJ 07201
P.O. Box 382
Highlands, NJ 07732

Name: L , C E A -304

Date of this notice: 1/12/2017

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

Sincerely,

DOYUtL ctl/VL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Greer, Anne J.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: C-E-L-, AXXX XXX 304 (BIA Jan. 12, 2017)
 ' '

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 304 - Elizabeth, NJ Date:

JAN 1 2 2017
In re: C E L

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Anna C. Little, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony (as defined in section 10l(a)(43)(B))
(sustained)

Sec. 237(a)(2)(B)(i), l&N Act [ 8 U.S.C. 1227(a)(2)(B)(i)] -

Convicted of controlled substance violation (sustained)

APPLICATION: Dismissal of section 237(a)(2)(A)(iii) charge; remand; cancellation of

removal; asylum; withholding of removal; Conventipn Against Torture

The respondent, a native and citizen of Haiti, is a lawful permanent resident of the
United States. In a decision entered on February 16, 2016, an Immigration Judge found the
respondent removable as charged based on counsel's prior concession of removability before
a different Immigration Judge. In a separate decision issued on the same date, the
Immigration Judge held that the respondent did not satisfy his burden of proving eligibility for
asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").
See 8 C.F.R. 1240.8(d). The respondent's appeal of these decisions will be sustained and the
record will be remanded.

The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R.
1003.l(d)(3)(i). We review issues of law, discretion, or judgment de novo. 8 C.F.R.
1003.l(d)(3)(ii).
It is undisputed that on October 10, 2008, the respondent was convicted of possession
of a controlled dangerous substance with intent to distribute within 1,000 feet of school
property in violation of section 2C:35-7 of the New Jersey Statutes Annotated (''NJSA")
(Tr. at 12-13; Exh. 2). While acting pro se, the respondent filed a motion to terminate, arguing
that NJSA 2C:35-7 is not an aggravated felony under the categorical approach. See Moncrieffe
v. Holder, 133 S.Ct. 1678, 1683 (2013). The respondent then retained counsel of record, who
conceded removability as charged during a hearing on September 2, 2015 (Tr. at 12-13).

Cite as: C-E-L-, AXXX XXX 304 (BIA Jan. 12, 2017)
 ,

304

Subsequently, the case was transferred to the current Immigration Judge. During the hearing
on January 26, 2016, the Immigration Judge notified counsel that the record contains a motion to
terminate filed by the respondent while he was acting pro se (Tr. at 26-27). Counsel indicated
that she had no prior knowledge of the motion and that the respondent would be eligible for
cancellation of removal should the charge under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), be dismissed (Tr. at 26-31). The Immigration

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Judge then continued the proceedings so the respondent could move to withdraw counsel's
concession of removability and request adjudication of his motion to terminate (Tr. at 31-38).
The respondent filed the motion February 2, 2016, and the Department of Homeland Security
filed an opposition on February l 0, 2016. The Immigration Judge concluded that the respondent
was bound by counsel's prior concession of removability.

On appeal, the respondent does not challenge the finding that he is removable under section
237(a)(2)(B)(i) of the Act. The respondent asserts that he should be permitted to withdraw
counsel's concession of removability pursuant to section 237(a)(2)(A)(iii) of the Act given that
he had previously filed a motion to terminate, which was not adjudicated by the prior
Immigration Judge or brought to counsel's attention before she conceded removability. In
addition, the respondent argues that the section 237(a)(2)(A)(iii) charge should be dismissed and
he should not be barred from receiving relief on the basis of an aggravated felony conviction
because NJSA 2C:35-7 is categorically not an aggravated felony.

An alien is generally bound by "a distinct and formal admission made before, during, or even
after a proceeding by an attorney acting in his professional capacity." Matter of Velasquez,
19 I&N Dec. 377, 382 (BIA 1986). This applies to any admission made as a "reasonable tactical
decision" by an attorney, and we presume pleadings to be reasonable tactical decisions absent
evidence to the contrary. Id; see also Strickland v. Washington, 466 U.S. 668, 689 (1984). In
this case, the record does contain such evidence to the contrary. To wit, at the time counsel
conceded removability, she was unaware that the respondent had previously filed a motion to
terminate, which the prior Immigration Judge did not adjudicate (Tr. at 26-31). Therefore, we
hold that the respondent has established circumstances that warrant setting aside counsel's
concession of removability. See Matter of Velasquez, supra, at 382-83.

With respect to the issue of removability under section 237(a)(2)(A)(iii) of the Act, we note
that the Supreme Court has rendered an intervening decision on the question of a statute's
divisibility that we have held is fully applicable in immigration proceedings. See Mathis v.
United States, 136 S. Ct. 2243 (2016); Matter of Chairez, 26 I&N Dec. 819 (BIA 2016). In this
regard, the United States Court of Appeals for the Third Circuit, in whose jurisdiction this case
arises, has held that NJSA 2C:35-7 is not an aggravated felony under the categorical approach
and is not divisible in any way permitting resort to the modified categorical approach.
Chang-Cruz v. Att'y Gen. of U.S., No. 14-4570, 2016 WL 4446063 (3d Cir. Aug. 24, 2016)
(unpublished) (citing Mathis v. United States, supra, at 2256-57). Pursuant to Mathis and
Chang-Cruz, the respondent's conviction under NJSA 2C:35-7 was not for an aggravated
felony. Therefore, we will sustain the appeal and reverse the holding that the respondent is
removable under section 237(a)(2)(A)(iii). Therefore, we will remand the record to permit the
respondent to apply for any form of relief that may now be available to him. See 8 C.F.R.
1240.8(d). In this regard, the Immigration Judge should reevaluate her prior conclusions

Cite as: C-E-L-, AXXX XXX 304 (BIA Jan. 12, 2017)
concerning the respondent's eligibility for asylum, withholding of removal, and CAT protection
in light of the holding that he has not been convicted of an aggravated felony.

Accordingly, the following order is entered.

ORDER: The appeal is sustained, the section 237(a)(2)(A)(iii) charge is dismissed, and the

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record is remanded for further proceedings and the entry of a new decision consistent with this
opinion.

Cite as: C-E-L-, AXXX XXX 304 (BIA Jan. 12, 2017)