U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Sulle 2000

Falls Church. V1rgm1a 22041

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Canton, Michael William OHS/ICE Office of Chief Counsel - DAL
Miley & Brown, P.C. 125 E. John Carpenter Fwy, Ste. 500
705 Ross Avenue Irving, TX 75062-2324
Dallas, TX 75202-2007

Name: NGUYEN, THANH HOANG A 042-647-333

Date of this notice: 8/11/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Kelly, Edward F.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Thanh Hoang Nguyen, A042 647 333 (BIA Aug. 11, 2017)
. .,.

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

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A042 647 3331 -Dallas, TX Date:

AUG 11 2111
In re: THANH HOANG NGUYEN

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Michael William Canton, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Vietnam, appeals from the Immigration Judge's
decision dated January 6, 2017, which denied the joint motion to reopen removal proceedings.
The Department of Homeland Security (OHS) has not replied to the respondent's arguments on
appeal. The appeal will be sustained, proceedings will be reopened, and the record will be
remanded.

We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The record shows that the respondent was admitted to the United States as a lawful
permanent resident on June 13, 1990 (Exh. 1). An Immigration Judge ordered the respondent
removed on January 9, 1998. On December 12, 2016, the respondent and the OHS filed ajoint
motion to reopen proceedings to afford the respondent the opportunity to seek relief under the
former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c).
Considering the totality of the circumstances, we conclude that reopening is warranted so that
the respondent has the opportunity to file an application for relief under section 212(c) of the
Act. The motion, which was filed jointly with the OHS to reopen proceedings pursuant to
8 C.F.R. 1003.23, is timely and is not required to include a completed application for relief.
See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026-27 (BIA 1997). The respondent appears
to be eligible to seek section 212(c) relief, and the Immigration Judge provided no analysis for
his conclusion that the respondent did not warrant a favorable exercise of discretion (l.J. at 4, 6).
Accordingly, the following orders will be entered.

ORDER: The appeal is sustained, and proceedings are reopened.

1 Although the Immigration Court records reflect this alien number, the correct alien number is
as listed on the Notice to Appear, which is 042 627 333 (Exh. 1). The error is noted in thejoint
motion at issue here (Joint Motion to Reopen to Seek Section 212(c) Relief at 2).

Cite as: Thanh Hoang Nguyen, A042 647 333 (BIA Aug. 11, 2017)
t A042 647 333

.FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

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Cite as: Thanh Hoang Nguyen, A042 647 333 (BIA Aug. 11, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATIER OF: ) IN REMOVAL PROCEEDINGS

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)
NGUYEN, Thanh Hoang ) A 042-647-333
)
RESPONDENT )

CHARGES: Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), as

amended, in that, at any time after admission, you have been convicted of
two crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct.

Section 237(a)(2)(C) of the Act, as amended, in that, at any time after

admission, you have been convicted under any law of purchasing, selling,
offering for sale, exchanging, using, owning, possessing, or carrying in
violation of any law, any weapon, part or accessory which is a firearm or
destructive device (as defined in section 921(a) of Title 18, United States
Code).

APPLICATIONS: Motion to Reopen; Special Motion to Seek INA 212(c) relief

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT

Michael W. Canton OF HOMELAND SECURITY:
Miley & Brown, P.C. Office of Chief Counsel
705 Ross Avenue 125 E. John Carpenter Freeway, Suite 500
Dallas, Texas 75202-2007 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I. Factual and Procedural History

The Respondent is a native and citizen of Vietnam. Ex. 1. He entered the United States at

Seattle, Washington on or about June 13, 1990, as a lawful permanent resident (LPR). On March

7, 1996, Respondent pied guilty in a Texas court to the offense of Burglary of a Motor Vehicle in

violation of Texas Penal Code 30.04 and was sentenced to 365 days in jails probated to 24

months. Joint Mot. to Reopen, Tab B at 8. On July 9, 1997, Respondent was placed on probation

by a Texas court for 10 years in accordance with a nonadjudication of guilt plea for four counts

1
of A:ggravated Robbery with a Deadly Weapon in violation of Texas Penal Code 29.03. Id. Tab

C at 22, 33, 43, 53. On July 21, 1997, Respondent's probation for the Burglary offense was

revoked, and he was sentenced to 180 days in jail. Id. Tab B at 9, 11. After successfully

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completing his probation term for the four Aggravated Robbery charges, the Texas court

dismissed all four charges with no finding of guilt on July 9, 2007.

As a result of Respondent's convictions in 1997, the former Immigration and Nationality

Service (the Government) issued him a Notice to Appear (NTA), charging him with removability

pursuant to INA 237(a)(2)(A)(ii) and 237(a)(2)(C) on July 22, 1997. Ex. 1. On January 9,

1998, Respondent was found removable as charged and was ordered removed to Vietnam. Since

January 9, 1998, the Government has been unable to remove Respondent to Vietnam, and thus,

Respondent still resides in the U.S.

On December 12, 2016, Respondent, through counsel, filed a joint motion to reopen to

seek INA 212(c) relief. The Court construes Respondent's motion as alleging three bases for

1
reopening: former INA 212(c), new form of relief, and sua sponte relief. The Government

joined in Respondent's motion to reopen. Nonetheless, the Court will deny Respondent's motion

as set forth below.

II. Applicable Law and Analysis

1. Special Motion for 212(c) relief

Respondent seeks to reopen his case to seek discretionary relief under former INA

212(c). Certain LPRs may file special motions to reopen seeking discretionary relief under

2
212(c) as permitted by 8 C.F.R. 1003.44. The applicant has the burden of establishing

eligibility for relief under 212(c) and must establish that (I) he was a LPR and is now subject

1 In accordance with the practice manual, the Court analyzes motions as to content not form.
2 Regulation 8 C.F.R. 1003.44 was enacted in 2004 in response to the Supreme Court's holding in INS v. St. Cyr,
533 U.S. 289 (2001).

3
to a final order of deportation or removal; (2) he pled guilty or nolo contendere to an offense
.

rendering him deportable or removable before April 1 , 1997; (3) he had "seven consecutive years

of lawful unrelinquished domicile,, in the U.S. before the date of the final removal order; and (4)

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he is otherwise eligible to apply for 212(c) relief ''under the standards that were in effect at the

time his plea was made, regardless of when the plea was entered by the court.,, 1003.44(b); see

also 8 C.F.R. 1212.3. An applicant may file one special motion to seek relief under 212(c) on

or before April 26, 2005. 1003.44(h). In addition, the motion must "contain the notation

'special motion to seek section 212(c) relief,, and include a completed copy of the Form 1-191

application and supporting documents. 1003.44(f). The Immigration judge may grant or deny

an application for relief under 212(c) in the exercise of discretion. 8 C.F.R. 1212.3(e).

Here, the Court finds that Respondent failed to comply with the procedural requirements

to file a special motion to reopen to seek 212(c) relief. First, he failed to label his motion with

the notation "special motion to seek 212(c) relief.,, Second, he failed to submit a copy of the

Form 1-191 application along with the motion.

Even if Respondent had complied with the procedural requirements to file a special

motion to reopen to seek 212(c) relief, this Court would still deny the special motion because it

is untimely filed. Section 1003.44 states that a motion to reopen to seek 212(c) relief had to be

filed by April 26, 2005. Respondent filed the present motion on December 12, 2016, over a

decade later. Multiple circuit courts have upheld the 1003.44 April 26, 2005 deadline. See,

Arias-Gomez v. Keisler, 250 Fed. App , x 368 (2d Cir. 2007) (stating motion filed eleven months

after the deadline in 1003.44 was untimely and the Board of Immigration Appeals (the Board)

did not abuse its discretion in denying it as so); Omar v. Lynch, 814 F.3d 565 (1st Cir. 2016)

3 This was later expanded to cover applicants who were also found guilty by jury trial. See Matter ofAbdelghany, 26
I. & N. Dec. 254, 266-69 (BIA 2014) (citing Varte/as v. Holder, 132 S. Ct. 1479, 1491 (2012)).

3
(holing the Board did not abuse its discretion in denying special motion under 212(c) as time

barred); Tapia Luna v. Holder, 659 F.3d 753 (9th Cir. 2011) (stating the deadline in 1003.44

for motions to reopen based on the Supreme Court decision St. Cyr is constitutional).

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Respondent states 'in his motion that he was still on probation for the four aggravated

robberies on April 26, 2005 and, thus, implies that is why he did not file this motion before the

deadline. To the extent Respondent is implicitly arguing that the April 26, 2005 deadline for

filing special motions to reopen should be equitably tolled because he was on probation, his

argument fails. Equitable tolling may apply only when a litigant has established that he has

diligently pursued his rights and that "some extraordinary circumstance stood in his way and

prevented timely filing." Lugo-Resendez v. Lynch,, 831 F.3d 337, 344 (5th Cir. 2016). Here,

Respondent did not file this motion on or before the April 26, 2005 deadline or within a

reasonable time after he successfully completed his probation for the four counts of aggravated

robbery. Respondent completed his probationary period in 2007, and the Texas court entered a

finding of no guilt on July 9, 2007. However, it still took Respondent more than nine years to file

this motion. Thus, this Court finds Respondent did not diligently pursue his rights. Respondent

also failed to establish "some extraordinary circumstance" prevented him from timely filing the

special motion. Consequently, the deadline for 5.ling a special motion to reopen to seek 212(c)

relief will not be tolled.

Finally, to the extent Respondent may be statutorily eligible to apply for 212(c) relief,

he has not established that he warrants a favorable exercise of discretion. Accordingly,

Respondent's special motion to reopen to seek 212(c) relief is denied.

4
 2. New Form of Relief

Respondent's motion may also be construed as a request that his case be reopened

pursuant to INA 240(c)(7) so that he may apply for new discretionary relief in the form of

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212(c) relief.

A motion to reopen shall state new facts and evidence to be presented at a re-opened

hearing. 8 C.F.R. 1003.23(b)(3); Matter ofS-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007). The

evidence must be material, and the respondent must show that it was unavailable and could not

have been discovered before or presented at the previous hearing. Id. Any motion to reopen for

the purpose of acting on an application for relief must be accompanied by the appropriate

application for relief and all supporting documents. Id The motion must be filed within 90 days

of the date of entry of a final administrative order of removal, unless it is jointly filed and agreed

upon by all parties. 8 C.F.R. 1003.23(b)( l ), (4)(iv). Any motion to reopen for the purpose of

acting on an application for new relief must be accompanied by the appropriate application for

relief and all supporting documents. 8 C.F.R. 1003.23(b)(3). This includes making "a prima

facie showing that there is a reasonable likelihood that the relief sought would be granted at the

reopened hearing." Ramos v. Lynch, 622 F. App'x. 432, 433 (5th Cir. 2015) (quoting Marcello v.

INS, 694 F.2d 1033, 1035 (5th Cir. 1983)). Where the ultimate relief is discretionary, the

respondent must show that a favorable exercise of discretion is warranted. See INS v. Doherty,

502 U.S. 314, 323 (1992).

Although Respondent's motion to reopen was filed approximately 19 years after the final

order of removal, the Court finds that is not time barred since it was jointly filed by Respondent

and the Government. See 8 C.F.R. 1003.23(b)( l ). However, the Court finds that even though

Respondent's motion to reopen was timely filed under 8 C.F.R. 1003.23, he is not entitled to

5
J

212(c) relief because he did not properly or timely request such relief under 8 C.F.R. 1003.44,

as discussed in detail above. Respondent would also not be entitled to a favorable exercise of

discretion for 212(c) relief. Accordingly, Respondent's motion to reopen based on new relief is

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denied.

3. Sua Sponte

An immigration judge may reopen proceedings sua sponte in exceptional circumstances

warranting the exercise of such limited discretionary authority. See, e.g., Matter ofG-D-, 221. &

N. Dec. 1132, 1133-34 (BIA 1999) (sua sponte authority should be used "sparingly, treating it

not as a general remedy for any hardships created by enforcement of the time and number limited

in the motions regulations, but as an extraordinary remedy reserved for truly exceptional

situations"). Considering the totality of the circumstances, the Court finds Respondent has not

presented a truly exceptional situation that would warrant the extraordinary remedy of sua sponte

reopening. Thus, the Court declines to exercise its sua sponte authority to reopen proceedings.

ORDER

IT IS HEREBY ORDERED that Respondent's Motion to Reopen to Seek 212(c) Relief is

DENIED.

Date: 1//20/ 'f

Dallas, Texas Daniel H. Weiss
Immigration Judge