U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: PALMER, RICHARD AUSTIN

A 061-494-802
Date of this notice: 6/9/2016

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

DawtL cll/lA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure

Panel Members:
Guendelsberger, John
Kendall-Clark, Molly
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Richard Austin Palmer, A061 494 802 (BIA June 9, 2016)

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Link, Richard Joseph

Law Office of Richard Link
6 Greig Street
Rochester, NY 14608

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A061 494 802 - Buffalo, NY

Date:

.JUN O 9 20f6

In re: RICHARD AUSTIN PALMER

APPEAL
ON BEHALF OF RESPONDENT: Richard Joseph Link, Esquire
ON BEHALF OF DHS: Michele Henriques
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude

APPLICATION: Termination
The respondent appeals from the Immigration Judge's December 1, 2015, decision denying
his motion to terminate these removal proceedings. See Matter of G-N-C-, 22 I&N Dec. 281
(BIA 1998) (discussing Immigration Judge's obligation to weigh the merits of a motion to
terminate filed by the Department of Homeland Security after a charging document is filed and
jurisdiction has vested with the Immigration Court). The Department of Homeland Security has
offered a statement of non-opposition to this appeal. The appeal will be sustained and the
proceedings will be terminated.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. See 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other
issues, including whether the parties have met the relevant burden of proof, and issues of
discretion. See 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was charged with removability pursuant to the above-listed charge. Prior to
the commencement of these proceedings, the criminal court granted the respondent's motion to
withdraw his guilty plea to the underlying offense. See Motion Tabs A-C. The Immigration
Judge denied the respondent's unopposed motion to terminate the removal proceedings, finding
that "it appears that the vacatur was entered solely [sic] for the basis of avoiding immigration
consequences and not vacated on the merits of the (underlying) charge." See Immigration
Judge's Decision at 3.
In Matter of Pickering, 23 l&N Dec. 621 (BIA 2003), the Board held that if a criminal court
vacates an alien's conviction for reasons solely related to rehabilitation or immigration
hardships, rather than on the basis of a procedural or substantive defect in the underlying
criminal proceedings, the conviction is not eliminated for immigration purposes. Both parties to
these proceedings argued before the Immigration Judge that the respondent's attorney in his
Cite as: Richard Austin Palmer, A061 494 802 (BIA June 9, 2016)

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IN REMOVAL PROCEEDINGS

A06 1 494 802

criminal case rendered ineffective assistance of counsel when advising him of the immigration
consequences of a guilty plea. See Transcript of the Proceedings at 6-8, 16, 19-20. On appeal,
the respondent asserts that the vacatur was based on ineffective assistance of counsel and both
parties argue that termination of the removal proceedings would not contravene the holding in
Matter ofPickering, supra.

ORDER: The appeal is sustained.

FURTHER ORDER: The motion to terminate the removal proceedings is granted and the
proceedings are terminated.

2
Cite as: Richard Austin Palmer, A061 494 802 (BIA June 9, 2016)

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While the December 18, 2013, decision of the criminal court resulted in the vacatur of the
respondent's conviction to enable him to replead and avoid the immigration consequences of his
initial plea agreement, upon review of the evidence before the Immigration Judge, it is clear that
the vacatur was based, at least in part, on the finding that the respondent's defense attorney
rendered ineffective assistance by providing the respondent with incorrect advice regarding the
risk of removal arising from his December 7, 2012, plea agreement. See Padilla v. Kentucky,
559 U.S. 356, 369 (20 10). The criminal court's October 18, 20 13, decision vacating the
conviction was not entered "solely" to enable the respondent to avoid the immigration
consequences of his conviction. The criminal court's decision was also entered to correct a
procedural defect in the criminal proceedings whereby the respondent was provided improper
legal advice regarding the immigration consequences of his guilty plea prior to entering the plea.
Accordingly the respondent's appeal will be sustained, and the motion to terminate will be
granted.

\.-.....

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

PALMER, Richard Austin

A# 061-494-802

IN REMOVAL PROCEEDINGS

Respondent

CHARGES:

INA 237(a)(2)(A)(i)

MOTIONS:

Motion to Terminate

Crime of Moral Turpitude

ON BEHALF OF DHS
Michelle Henriques, Esq.
Assistant Chief Counsel
130 Delaware Avenue, Suite 203
Buffalo, New York 14202

ON BEHALF OF RESPONDENT
Richard J. Link, Esq.
The Law Office of Richard Link
6 Greig Street
Rochester, New York 14608

DECISION AND ORDER OF THE IMMIGRATION JUDGE

IT IS ORDERED that the charge of removability pursuant to INA 237(a)(2)(A)(i) is
SUSTAINED. The Respondent's motion to terminate is DENIED. HAVING FOUND THAT
Respondent has not put forth any alternative basis for relief from removal; IT IS FURTHER
ORDERED that Respondent be REMOVED to Jamaica.
I.

FACTS AND PROCEDURAL IDSTORY

Richard Austin Palmer ("Respondent") is a 25-year-old native and citizen of Jamaica. He

was admitted to the United States as a lawful permanent resident at Philadelphia, Pennsylvania
on February 28, 2011. On December 7, 2012, he was convicted in Chemung County Court,
Elmira, New York, for Assault in the third degree, committed on or about December 4, 2011, in
violation of section 120.00 Sub. 1 of the New York State Penal Law ("NYPL"). The Department
of Homeland Security ("DHS") issued Respondent a Notice to Appear (''NTA''), alleging that
Respondent is removable pursuant to INA 237(a)(2)(A)(i).
On October 18, 2013, the Chemung County Court granted Respondent's motion to vacate
the plea to Assault in the third degree. That same day, Respondent plead guilty to Attempted
Assault in the third degree, in violation of section 110/120.00, Sub. 1 of the NYPL, with a
conviction backdate of February 1, 2013.
1

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In the Matter of:

The Court indicated that it has no evidence that the vacatur complies with the relevant
case law. The Court requested a copy of the plea colloquy. Respondent explained that the
criminal case was not conducted by jury trial. Respondent further explained that the attorney on
the criminal case negotiated for a "364-day" sentence, which he erroneously believed would
"save" his client from deportation consequences. The Court indicated that requesting a vacatur
for the purpose of circumventing immigration consequences will not be a valid basis to terminate
proceedings. DHS stated that Respondent agreed to the plea because he was informed (albeit,
erroneously) that he would not be deported because of the 364-day sentence. DHS concluded
that this could be considered ineffective assistance of counsel. DHS then explained that the
attorney for the criminal case corrected his mistake by getting the charge reduced to attempted
assault.
The Court stated that this is considered a "design to evade immigration laws" of the
United States. DHS clarified what is relevant is the initial plea, because Respondent would not
have accepted the plea, on the advice of counsel, if he knew it would make him removable. DHS
indicated that it was a "definite error" on the part of counsel for the initial plea. The Court
indicated it needed to review a copy of the plea colloquy. The Court warned that this does not
appear to be an "appropriate use of the [criminal court] system" concerning the negotiation of a
364-day sentence to avoid immigration consequences. DHS stated that Respondent reached out
to an immigration attorney and yet the criminal attorney still made a mistake. DHS stated it was
satisfied with the information presented by Respondent that this matter should be terminated.
DHS explained that if Respondent did not seek the advice of immigration counsel during his
criminal matter, this case would not comport with Matter of Pickering or Matter of Rodriguez
Ruiz. The Court deferred judgment on Respondent's motion pending proof that his conviction
had been properly vacated for the purpose of removal proceedings.
On April 24, 2015, Respondent appeared before the Court, with counsel present.
Respondent again explained that he was originally convicted of assault in the third degree; the
Court stated that Respondent had previously denied that allegation. The Court then indicated it
had questions about pages 2-3 of the amended motion to terminate, dated April 6, 2015. The
Court inquired whether a DHS officer was present for Respondent's criminal proceeding; DHS
indicated that that would be unusual. The Court then indicated that, according to page 2, ,r 5 of
2

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Respondent first appeared before the Buffalo Immigration Court ("Court") with counsel
on January 16, 2015. Respondent, through counsel, conceded service of process of the NT A,
admitted factual allegations 1-3, denied factual allegations 4 and 5, and denied the charge of
removability. Respondent designated Jamaica as the country for removal should removal become
necessary. Respondent indicated he wished to terminate proceedings based the underlying
criminal charge, which is the basis for the INA 237(a)(2)(A)(i) charge, was vacated.
Respondent submitted a Certificate of Disposition to the Court at this time. DHS then explained
that Respondent was originally "written up" for assault in the third degree, Sub. 1, but
Respondent had previously provided DHS with a Certificate of Disposition for attempted assault
in the third degree, Sub. 1 (a B Misdemeanor). DHS further explained that it contacted the
criminal court for additional information regarding Respondent, and the criminal court indicated
that Respondent's conviction was reduced to the B Misdemeanor. DHS concluded that it would
also move to terminate proceedings if the vacatur complies with both Matter of Pickering and
Matter ofRodriguez-Ruiz, because the government would not be able to sustain the charge.

'.

II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A conviction that has been vacated on its merits does not constitute a conviction for
immigration purposes; however, "no effect is to be given in immigration proceedings to a state
action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a
guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute."
Matter of Pickering, 23 I&N Dec. 621, 622-23 (BIA 2003) (citing Matter of Roldan, 22 I&N
Dec. 512 (BIA 1999) and Matter ofRodriguez-Ruiz, 22 I&N Dec. 1 378 (BIA 2000)).
The Board of Immigration Appeals has held that convictions vacated under CPL Article
440 ("Art. 440") are not convictions for immigration purposes because Art. 440 "is neither an
expungement statute nor a rehabilitative statute." Rodriguez-Ruiz, 22 I&N Dec. at 1379. A New
York State court judgment pursuant to Art. 440 is entitled to full faith and credit and the Court
should not "go behind the state court judgment and question whether the New York court acted
in accordance with its own state law." Id. at 1379 -80 (citing 28 U.S.C. 1738).
Respondent's original conviction was vacated pursuant to Art. 440, which is neither an
expungement statute nor a rehabilitative statute, and it would no longer be viable for immigration
purposes; however, in reviewing Respondent's plea colloquy, it appears that the vacatur was
entered solely for the basis of avoiding immigration consequences and not vacated on the merits
of the assault charge. Pickering, 23 I&N Dec. at 621 ("[i]f a court vacates an alien's conviction
for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a
procedural or substantive defect in the underlying criminal proceedings, the conviction is not
eliminated for immigration purposes."). The plea colloquy provided by Respondent in no regard
shows that the original conviction of assault in the third degree was vacated due to procedural or
substantive defect. In fact, the Chemung County Court stated:
The Court

And other than the promise that you would be sentenced to

less than a year in the county jail, so that you would not be
deported, and that you would be required to make
restitution, other than those representations, has anyone
made any other kind of promise to get you to plead guilty?

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Respondent's amended motion to terminate, it appears that the criminal attorney purposefully
requested an altered sentence so that his client could avoid removal. The Court indicated it was
also concerned about the backdated conviction date. The Court reiterated that if the conviction
was altered for the purpose of circumventing immigration consequences, the conviction would
still stand in immigration court. DHS explained that Respondent was aware of the immigration
consequences, but relied on the erroneous advice of his counsel at the time that he would not be
subject to removal if he agreed to the 364-day sentence. DHS stated Respondent was provided
incorrect advice which would amount to ineffective assistance of counsel. Respondent stated that
the conviction was vacated based on ineffective assistance of counsel and therefore, complies
with Pickering. Respondent stated that the vacatur vindicated his Sixth Amendment right to
effective assistance of counsel. The matter was taken under advisement.

--

The Court shall enter the following orders:

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(emphasis added). Respondent's Plea Colloquy at 4 (Dec. 7, 2012). The Court would emphasize
that every reference to Respondent's 364-day sentence compromise in the plea colloquy also
discusses the avoidance of deportation, and nothing else. The Court finds that, even if the
criminal attorney provided erroneous information about the length of sentence imposed to avoid
deportation consequences, the underlying reasoning for the attorney's request for a 364-day
sentence is still solely to circumvent deportation, and there is no information provided to the
Court that if different advice was given to Respondent, he would have proceeded to trial.
Therefore, the Court finds that Respondent's charge of removability is sustained.

ORDERS
IT IS ORDERED that the charge of removability pursuant to INA 237(a)(2)(A)(i) is
SUSTAINED;

HAVING FOUND THAT Respondent has not put forth any alternative basis for relief
from removal;
IT IS FURTHER ORDERED that Respondent be REMOVED to Jamaica.

---Philip J. Montante, Jr.

U.S. Immigration Judge

Date

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IT IS ORDERED THAT the motion to terminate proceedings is DENIED.