Scribd Logo
Upload

Welcome to Scribd!

  • Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    303 views3 pages
    Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020) (rejects DHS argument that conviction remained valid for immigration purposes because state court order vacating conviction was drafted by respondent’s attorney) (Morris)

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020) (rejects DHS argument that conviction remained valid for immigration purposes because state court order vacating conviction was drafted by respondent’s attorney) (Morris)

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    303 views3 pages

    Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020) (rejects DHS argument that conviction remained valid for immigration purposes because state court order vacating conviction was drafted by respondent’s attorney) (Morris)

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Flag for inappropriate content
    of 3

    U.S.

    Department of Justice

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office ofthe Clerk

    5107 leesburg Pike, Suue 2000


    Falls Church, Virgm,a 2204/

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Mark, Eric M DHS/ICE Office of Chief Counsel - ELZ
    Law Office of Eric M. Mark 625 Evans Street, Room 135
    201 Washington St. Elizabeth, NJ 07201
    Newark, NJ 07102

    Name: FEARON, GARY MAURICE A 046-845-833

    Date of this notice: 4/17 /2020

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

    Sincerely,

    Donna Carr
    Chief Clerk

    Enclosure
    Panel Members:
    Morris, Daniel

    Hun,Jd ) I
    Userteam: Docket

    For more unpublished decisions, visit


    www.irac.net/unpublished/index

    Cite as: Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020)
    U.S. Department of Justice Decision of the Board of Immigration Appeals
    Executive •Office for Immigration Review
    I

    Falls Church, Virginia 22041

    File: A046-845-833 - Newark,NJ Date:


    APR 1 7 2020
    In re: Gary Maurice FEARON

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    IN REMOVAL PROCEEDINGS

    APPEAL AND MOTION

    ON BEHALF OF RESPONDENT: Eric M. Mark,Esquire

    ON BEHALF OF DHS: Dominic A. Saglibene


    Assistant Chief Counsel

    APPLICATION: Termination; cancellation of removal under section 240A(a) of the Act

    The respondent,a native and citizen of Jamaica,appeals the Immigration Judge's October 30,
    2019, decision denying his application for cancellation of removal under section 240A(a) of the
    Immigration and Nationality Act, 8 U.S.C. § 1229b(a). During the pendency of the appeal, the
    respondent filed a motion to terminate proceedings. The Department of Homeland Security
    ("DHS") opposes termination and has not responded to the appeal.

    We review the findings of fact, including the determination of credibility, made by the
    Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § I 003. l (d)(3)(i). We review
    all other issues, including issues of law, discretion, or judgment, under the de novo standard.
    8 C.F.R. § 1003. l (d)(3)(ii).

    The DHS charged the respondent with removability as an alien 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 relating to a controlled substance (Exh. 1). See section 237(a)(2)(B)(i) of the Act,8 U.S.C.
    § l 227(a)(2)(B)(i). In 2009,the respondent was convicted of possession of a controlled dangerous
    substance with intent to distribute,to wit: marijuana,in violation of New Jersey law (IJ at 1; Exh.
    2). The respondent conceded the charge of removability as to section 237(a)(2)(B)(i), and the
    Immigration Judge sustained that charge (IJ at 1; Exh. 1).

    With his motion to terminate, the respondent has submitted new evidence that, on March 4,
    2020, the Superior Court of New Jersey vacated his 2009 conviction on constitutional grounds
    (Respondent's Mot. at 2, Exh. A). Because the state criminal court vacated the respondent's
    conviction on the basis of a procedural or substantive defect in the underlying criminal
    proceedings, the conviction is eliminated for immigration purposes. See Matter of Thomas and
    Thompson, 27 I&N Dec. 674,690 (A.G. 2019). Despite the DHS's contentions in its opposition
    to the respondent's motion that the state court's order appears to be drafted by the respondent's
    counsel,the record indicates that whether the respondent's counsel drafted the order does not affect

    Cite as: Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020)
    A046-845-833

    the order's validity. 1 As such, the sole pending charge of removability under section
    237(a)(2)(B)(i) of the Act cannot be sustained. Accordingly, the DHS cannot meet its burden by
    clear and convincing evidence that the respondent is removable pursuant to section
    212(a)(2)(A)(i)(II) of the Act. See section 240(c)(3) of the Act. Thus, termination is appropriate.

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    In light of our disposition, we need not reach the respondent's appeal of the Immigration
    Judge's decision regarding his eligibility for relief, as that appeal is now moot. Matter ofJ-G-,
    26 I&N Dec. 161, 170 (BIA 2013) (citing INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating
    that "courts and agencies are not required to make findings on issues the decision of which is
    unnecessary to the results they reach")). Accordingly, the following order will be entered.

    ORDER: The removal proceedings are terminated.

    1
    If the DHS has evidence showing that the state court's order was not, in fact, signed by the judge
    identified on the order and properly filed with the appropriate court, the DHS may file such
    evidence along with a motion to reconsider with the Board.

    Cite as: Gary Maurice Fearon, A046 845 833 (BIA April 17, 2020)

    You might also like