Mugambi, Irene G., Esq.

Law Office of Irene Mugambi, P .C.

2720 N. Stemmons Frwy S. Tower
Suite 711
Dallas, TX 75207
U.S. Department of Justice
Executive Offce for Immigration Review
Board of immigration Appeals
Office ofthe Clerk
5107 /,eesburg Pike. Suite 2000
I-als Chuch. I 'irgmia 20530
OHS/ICE Office of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
Name: MARTINEZ, VICTOR MANUEL A 029-084-542
Date of this notice: 7/30/2014
Enclosed is a copy or the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Greer, Anne J.
Sincerely,
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Victor Manuel Martinez, A029 084 542 (BIA July 30, 2014)
U.S. Department of Justice
Executive Office fo'r Immigration Review
Decision ofthe Board of Immigration Appeals
Falls Church, Virginia 20530
File: A029 084 542 - Dallas, TX
In re: VICTOR MANUEL MARTINEZ
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Irene Mugambi, Esquire
CHARGE:
Date:
Notice: Sec. 212(a)(2)(A)(i)(Il), I&N Act [8 U.S.C. 1I82(a)(2)(A)(i)(II)] -
Controlled substance violation
APPLICATION: Termination
JUL 3 0 2014
The respondent appeals from an Immigration Judge's March 1, 2013, decision ordering him
removed from the United States. The appeal will be sustained and the removal proceedings will
be terminated.
The respondent, a native and citizen of El Salvador, has been a lawful permanent resident
("LPR") of the United States since 2004. In 2007, he was convicted in Texas of attempted
possession of cocaine pursuant to a plea of nolo contendere. In 2009, afer traveling abroad, the
respondent presented himself for inspection at a United States port of entry and requested
permission to enter the United States a a returing LPR. The Department of Homeland Security
("DHS") did not admit the respondent into the United States and instead charged the respondent
as an arriving alien inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(II), as an applicant for admission who has been
convicted of, or who admits having committed, a controlled substance violation.
In 2011, after the commencement of these proceedings, the respondent filed an application
fr a writ of habeas corpus with the Texas District Court which entered his 2007 conviction,
requesting leave to withdraw his plea of nolo contendere on the ground that defense counsel did
not properly advise him of his options or explain to him that his plea would result in automatic
removability. In October 20 12, that application for habeas corpus was granted, resulting in the
vacatur of the drug conviction and the commencement of a new trial. In the ensuing criminal
proceedings, the respondent was convicted upon his guilty plea to a charge of possession or use
of a criminal instrument (a wallet).
Based on the vacatur of the 2007 drug conviction upon which the removal charge was based,
the respondent moved to terminate the removal proceedings. The Immigration Judge denied that
motion, finding that the respondent's conviction remained effective fr immigration purposes
because it was vacated by the Texas court solely for immigration-related reasons. Alteratively,
the Immigration Judge held that even if the conviction was no longer a valid basis upon which to
remove him, he remained inadmissible because he had "admitted" committing the underlying
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Victor Manuel Martinez, A029 084 542 (BIA July 30, 2014)
A029 084 542
drug ofense, both when he entered the plea that resulted in the conviction and when he
responded to an immigration officer's questions during his 2009 attempt to enter the
United States as a returning LPR. We reverse.
We do not agree with the Immigration Judge's determination that the respondent's 2007 drug
conviction remains effective for immigration purposes despite its vacatur. The Texas court's
decision vacating the respondent's conviction is entitled to full fith and credit in these
proceedings, see 28 U.S.C. 1738, unless the DHS establishes that the conviction was vacated
solely for reasons related to rehabilitation or the alleviation of immigration-related hardships.
See also Exh. 6-Deferred Adjudication; Matter of Pickering, 23 l&N Dec. 621 (BIA 2003);
Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). The court's decision vacating the
respondent's conviction concluded that his 2007 plea was not knowing and voluntary because it
was made without adequate notice of all its potential immigration consequences (Exh. 5, at 5).
That decision is entitled to fll faith and credit here because it does not purport to vacate the
conviction on rehabilitative or immigration hardship grounds; rather, it focuses on a substantive
legal defect in the underlying plea process. See Matter of Adamiak, 23 l&N Dec. 878 (BIA 2006)
(affording full faith and credit to an Ohio court's decision vacating an alien's conviction on the
ground that he was not properly advised of the potential immigration consequences of his plea,
as required by Ohio law).
1
The Immigration Judge's decision also disputes the propriety of the Texas court's decision
vacating the respondent's conviction, declaring that "[t]he order issued by the criminal court and
the findings of fact therein are demonstrably false" (I.J. at 4). We note, however, that the Federal
Immigration Courts do not sit as appellate tribunals to review errors allegedly committed by state
courts with respect to matters of state law. It is well-settled that under 28 U.S.C. 1738 federal
tribunals are bound to accord full faith and credit to state courts judgments, even if the federal
tribunal is convinced that the state judgment is erroneous. See Salazar v. US Air Force,
849 F.2d 1542, 1548 (5th Cir. 1988). The Immigration Judge's opinion as to the legal
correctness of the Texas court's decision is thus irrelevant to that decision's enfrceability in
removal proceedings.
1
As the Immigration Judge indicated below, the United States Com1 of Appeals for the
Fifth Circuit has held that vacated convictions remain valid fr immigration purposes, regardless
of the reason for the vacatur. Renteria-Gonzalez v. INS, 322 F.3d 804 ( 5th Cir. 2002). However,
the Fifth Circuit has since expressed concerns over its decision in Renteria. Discipio v. Ashcrof,
369 F.3d 472 (5th Cir. 2004), vacated by Discipio v. Ashcroft, 417 F.3d 448 (5th Cir. 2005)
(granting the respondent's motion to remand to the Board in order to terminate proceedings).
Moreover, in Gaona-Romero v. Gonzales, 497 F.3d 694 (5th Cir. 2007), the Fifth Circuit noted
that following its decision in Disdpio, the goverment undertook a policy review to determine
how removal cases arising in the Fifth Circuit that involve vacated convictions should be treated.
The court observed that the goverment had concluded that it would no longer seek to have
removal decisions upheld pursuant to Renteria, but rather would request remand to the Board so
that the government could take action in accord with Pickering. Gaona-Romero v. Gonzales,
supra, at 694-95. Under the circumstances, we conclude that our decision in Pickering applies
here.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Victor Manuel Martinez, A029 084 542 (BIA July 30, 2014)
'
A029 084 542
Having determined that the respondent is not inadmissible for having been "convicted" of a
controlled substance violation, we now turn to the question whether he is inadmissible as an alien
"who admits having committed, or who admits committing acts which constitute the essential
elements of' such a violation. We conclude that he is not.
At the outset, we observe that the notice to appear charges the respondent with
inadmissibility under section 212(a)(2)(A){i)(II) of the Act based solely on the existence of his
2007 "conviction." The notice does not contain any factual allegations regarding "admissions"
the respondent may have made. Thus, it is not clear to us that the respondent had adequate notice
of the possibility that the Immigration Judge would fnd him removable on grounds other than
his alleged conviction.
Even if we assume the respondent had proper notice, however, the admissions at issue here
do not support a section 212(a)(2)(A)(i)(II) charge. The respondent's vacated 2007 conviction
arose from a plea of nolo contendere, not a plea of guilty. Under Texas law, a defendant pleading
nolo contendere does not admit the charge; rather, he merely declines to contest the evidence
against him. See, e.g., Stone v. State, 919 S. W .2d 424, 426-27 {Tex. Crim. App. 1996). Such a
plea therefore is not an admission of guilt even though it has same legal effect. See id; Brewster
v. State, 606 S.W.2d 325, 329 (Tex. Crim. App. 1980).
Finally, although the respondent "admitted" during his 2009 questioning by an immigration
oficer that he had been convicted of cocaine possession in Texas (Exh. 2, at unnumbered p.11 ),
that admission was not to the essential elements of an ofense but only to the fact of a conviction,
which, as noted above, was subsequently vacated on the merits. As such, the respondent's
admission did not establish the respondent's inadmissibility under section 212(a)(2)(A)(i)(II) of
the Act.
In light of the foregoing, we conclude that the respondent is not inadmissible to the
United States under section 212(a)(2)(A)(i)(II) of the Act. No other removal charges are pending
against the respondent, and therefre the following order will be entered.
ORER: The appeal is sustained, the Immigration Judge's decision is vacated, and the
removal proceedings are terminated.
O R .
3
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Victor Manuel Martinez, A029 084 542 (BIA July 30, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
File: A029-084-542
In the Matter of
March 1, 2013
VICTOR MANUEL MARTINEZ IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGE: Section 212(a)(2)(A)(i)(ll) - controlled substance violation.
APPLICATION: None.
ON BEHALF OF RESPONDENT: IRENE G. MUGAMBI
ON BEHALF OF OHS: HEIDI J. GRAHAM
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 44-year-old male, native and citizen of El Salvador, who
adjusted to lawful permanent resident status on July 14, 2004. A Notice to Appear was
issued on October 10, 2009, charging the respondent with removability under the
above-cited section. During a Master Calendar, the respondent admitted allegations 1
through 4, denied allegation no. 5 and denied removability. The primary issue before
the Court is the issue of removability.
The following exhibits have been marked and admitted: Exhibit No. 1 is the
Notice to Appear. Exhibit No. 2 is the conviction record submitted by the Government
on March 16, 2011, and the attachment to that, also part of Exhibit No. 2, is the Q&A
1
;
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
taken at the airport in connection with the respondent's application for admission as a
returning resident. Exhibit No. 3 is an application for a writ that was in connection with
the respondent's criminal conviction. That application was made to the sentencing
court. Exhibit No. 4 is supporing documents submitted by the respondent, including
tabs A through D. Exhibit 5 is documents submitted by the respondent on October 10,
2012. That does include tabs A and B. Then Exhibit No. 6 is additional records related
to the criminal case. All of those documents are admitted into the record.
The respondent was provided an opportunity to testify. However, the issue here
is principally a legal issue, not a factual issue, and the respondent did not testify on the
issue of removability. The issue in the case is whether the respondent has a conviction.
The respondent is a lawful permanent resident. He was convicted on April 24, 2007, of
attempted possession of cocaine, committed on February 11, 2006. On October 10,
2009, the respondent applied for admission at the DFW Airport as a returning resident.
He was, instead, placed under removal proceedings with the issuance of a Notice to
Appear on October 10, 2009.
On June 23, 2011, the sentencing court issued an order vacating the conviction
and on June 4, 2012, the criminal court reconvicted the respondent in connection with a
crime that he committed on February 11, 2006, to the lesser offense of possession of a
criminal instrument, the instrument being a wallet. The issue in the case is whether or
not the respondent is removable as charged, and I find that he is.
Section 212(a)(2)(A)(i)(ll) of the Act renders inadmissible an alien who has been
convicted of or who admits committing acts, which constitute the essential elements of
any law or regulation of a state, United States or a foreign country relating to a
controlled substance. I would find the respondent meets this criteria for more than one
reason, the first being that I would find the respondent has admitted committing the
offense or has admitted the essential elements of the offense. At this point, I would
A029-084-542 2 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
refer to two pieces of evidence. Exhibit No. 2 is the Q&A taken at the airport. In this
Q&A, the respondent admits that, in connection with the conviction on April 24, 2007,
that he did, indeed, possess what he referred to as a bag of cocaine. In addition to that,
when the respondent pied to the offense on April 24, 2007, and this is also contained in
Exhibit No. 2, the respondent stated judicial facts before a judicial officer; to wit, "I admit
ang judicially confess that I committed the offense of attempted possession of a
controlled substance on February 11, 2006, exactly as alleged in the charging
instrument. I affirm that my plea and judicial confession are freely and voluntarily made,
not influenced by any consideration of fear, persuasion or delusive hope of pardon or
parole." That is contained in Exhibit No. 2. Because this admission was made before a
judicial officer, I would consider it to be highly reliable. Therefore, for these two
reasons, I find that the respondent has admitted to committing the offense or has
admitted to committing the essential elements of the offense. In addition to that, I would
also find that, not only has he admitted committing the offense, but he has, in fact, been
convicted of the offense. On this point, I would rely on the Board's decision in Matter of
Pickering, 23 l&N Dec. 621 (BIA 2003), wherein the Board held that if a criminal vacates
a conviction solely to alleviate the Immigration hardships, rather than on the basis of a
procedural orf substantive defect, the conviction is not eliminated for Immigration
purposes. In this case, I would find ample evidence that this conviction was vacated
solely for Immigration purposes. Exhibits 3, 4 and 5 contain the application for the writ
and the order vacating and other documents in connection with the way that this
conviction was vacated. The application for the writ is based exclusively on Immigration
purposes. It repeatedly cites to Immigration, specifically cites to the Supreme Court's
decision in Padilla and includes an affidavit from the respondent's Immigration attorney
and, therefore, it is very clear that this was done for Immigration purposes. Also the
conviction that he was eventually convicted of, possession of a wallet, seems to be
A029-084-542 3 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
specifically designed to avoid the Immigration consequences of the illegal conduct,
which the respondent committed. Particularly important, I would find the repeated
references in the application for the writ to the Supreme Court's decision in Padilla.
That was a 2010 case, so it was not in effect at the time the respondent pied in 2007.
The Supreme Court has recently held, in the case of Chaidez v. United States. {That
case was decided on February 20, 2013, and does not have a citation yet because of its
recency.l The Supreme Court has held that the Padilla case does not apply to
convictions that occurred prior to the issuance of the Padilla decision. Therefore,
Padilla has no applicability to this case and yet it is quite abundant that the criminal
court relied heavily on the Padilla case in its decision to vacate this conviction. That
was not a proper reliance. Consequently, I would find that the criteria stated in the
Pickering case has been met. This is a valid conviction for Immigration purposes and it
was vacated solely for Immigration consequences. I would further point out that the
order vacating the conviction does not cite to any procedural error that was committed,
other than an alleged failure to give Immigration warnings. Additionally, because the
record in this case clearly shows that the respondent was given the warnings that are
referred to in the Padilla case, not only the tier one warnings, but was also give tier two
warnings. The order issued by the criminal court and the findings of fact therein are
demonstrably false. In this case, quoting from Exhibit No. 2, the plea agreement, the
court admonition to the defendant states as follows: "If you are not a citizen of the
United States, a plea of guilty or nolo contendere may .end, under current Federal
Immigration rules, is almost certain to ..result in your deportation." That was the
admonition given to the respondent in 2007. Consequently, when the criminal court
issued the order vacating the sentence in 2011, that court made false statements in its
finding of fact. Specifically, referring to Exhibit No. 5, page 4, Findings of Fact No. 2,
the respondent was, indeed, advised of the consequences of an unadjudicated
A029-084-542 4 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
probated sentence. Therefore, findings of fact cannot possibly be supported, and I
would again note that the criminal court eeci!Ged to no procedural errors made. There
is a recitation that a procedural error was made, but there is no description of that error.
Consequently, I would find that the court was referring to the Immigration consequences
as a collateral consequence of plea. That is the only possible conclusion, which can be
made. So for all of these reasons, I think there is ample evidence that this easily meets
the standard set forth in Pickering case. In addition to that and for a completely different
reason, I would find that this still constitutes a conviction, even if it did not fall within the
Pickering case. The reason for that is that the Fifth Circuit has issued three different
decisions, which they have held that a conviction remains valid for Immigration
purposes, notwithstanding that it has been vacated by a criminal cour. The first case is
Renteria v. INS, 322 F.3d 804 (5th Cir. 2003), the second case is Discipio v. Ashcroft,
417 F.3d 448 (2005), and the third case is Maldonado v. Gonzales, 491 F.3d 284
(2007). Together these three cases, I think, make abundantly clear the position of the
Fifh Circuit, that these convictions remain valid for Immigration purposes, regardless of
why they were vacated. So therefore, for all of these reasons, I would find the charge
has been sustained by clear and convincing evidence. The respondent is removable as
charged under Section 212(a)(2)(A)(i)(ll).
The respondent was provided an opportunity to apply for relief from removal, and
declined to do so. The respondent was given a specific continuance for that purpose
and still declined to do so. The respondent was also given an opportunity to designate
a country of removal and also declined to do that. Therefore, the Cour will designate
El Salvador as the country of removal, that being the country of nativity and citizenship.
And as the respondent has sought no relief, the following order will be entered:
A029-084-542 5 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
ORDER
It is ordered the respondent be removed from the United States to El Salvador on
the charge contained in the Notice to Appear.
signature
A029-084-542
Please see the next page for electronic
R. WAYNE KIMBALL
Immigration Judge
6 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
/Isl/
Imigration Judge R. WAYNE KIMBALL
kimallr on May 10, 2013 at 3:51 PM GMT
A029-084-542 7 March 1, 2013
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t