CASES FROM THE BOARD OF IMMIGRATION APPEALS

In re Corso

In this unpublished decision, the Board granted the respondent’s motion to reopen and ordered the deportation proceedings against him to be terminated. 

The respondent was initially ordered deported in 1998 based on conviction of an aggravated felony.  The Board denied the appeal.  A few months later, the respondent filed a motion to reopen the case before the Board, on the basis that he was taking actions to have the sentence for his criminal conviction reversed.  This motion was denied.  The court that convicted the respondent did change his sentence, reducing it to 10 months, citing family circumstances, so the respondent filed another motion to reopen. 

A person is allowed only one motion to reopen in deportation proceedings, and in this case it had already been used.  However, the Board is able to reopen a case on its own, when such action would be in the interests of justice.  Because the new facts presented by the respondent went directly to the issue of his deportability, the Board decided to reopen the case and reconsider its decision. 

In the initial criminal trial, the respondent was found guilty of conspiracy to commit robbery, and sentenced to one year and a day.  Under the immigration laws, this is considered a crime of violence and because the sentence was for at least one year, it is also an aggravated felony.  After the sentence was reduced, it was no longer an aggravated felony and the respondent was no longer deportable.  The INS made the argument that the criminal court did not have jurisdiction to reduce the sentence because it was to avoid immigration consequences.  The Board rejected this argument, stating that it would not look behind the court’s order to examine the reasons for the order, especially in this case, where the court gave a reason for the reduction that was not related to immigration. 

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In re Beckford

In this case the Board dismissed the respondent’s motion to reopen, finding that it was not filed within the specified period of time and that there were no exceptional circumstances that would warrant reopening the case outside the regulatory time frame.

The respondent, a citizen of Jamaica and permanent resident of the US since 1972, was convicted in 1996 in Connecticut of possession of a controlled substance with intent to sell.  The INS placed him in removal proceedings in 1997, claiming he was an aggravated felon because of his conviction, and therefore deportable.  The Connecticut court documents did not specify what substance he was found to have possessed, but when asked by an Immigration Judge if he had been found guilty of possession of narcotics with intent to sell, the respondent answered yes.  Based on this response, the IJ ordered him deported. 

For a person to be deported on the basis of a drug-related state court conviction, the offense must also constitute a controlled substance offense under federal law.  The Connecticut court documents did not provide enough information to determine this, but the crime the respondent admitted committing – possession of narcotics with intent to sell – is a federal drug offense.  (Not all controlled substances are narcotics).  Despite the uncertainty as to what substance the respondent had possessed, the IJ ordered him deported based on his admission that it was narcotics.  The respondent’s appeal to the Board was dismissed.

Six months later, the respondent filed a motion to reopen before the Board.  INS regulations require such a motion to be made within 90 days after the Board’s first decision, although in some cases the Board will, in its discretion, grant a motion filed after the required period if an “exceptional situation” is present.  The Board found no such situation existed here, even though the respondent’s attorney repeatedly failed to attend his immigration hearings, and despite the lack of clarity as to his conviction.