U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 2204/

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Javier, Tiffany DHS/ICE Office of Chief Counsel - NYD
BRETZ & COVEN, LLP 201 Varick, Rm. 1130
305 Broadway New York, NY 10014
Suite 100
New York, NY 10007

Name: DE JESUS ROSARIO, JESUS JA... A 056-514-289

Date of this notice: 3/31/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Jesus Javier de Jesus-Rosario, A056 514 289 (BIA March 31, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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

DE JESUS ROSARIO, JESUS JAVIER DHS/ICE Office of Chief Counsel - NYD
A056-514-289 201 Varick, Rm. 1130
BERGEN COUNTY JAIL New York, NY 10014
160 S. RIVER ST.
HACKENSACK, NJ 07601

Name: DE JESUS ROSARIO, JESUS JA... A 056-514-289

Date of this notice: 3/31/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

c
Sincerely,

J"-
._,,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

< , \

Userteam:

Cite as: Jesus Javier de Jesus-Rosario, A056 514 289 (BIA March 31, 2017)
I U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive. Office for Immigration Review

Fall Church, Virginia 22041

File: A056 514 289 - New York, NY Date:

MAR 3 1 2017
In re: JESUS JAVIER DE JESUS-ROSARIO a.k.a. Jesus Dejesus

IN REMOVAL PROCEEDINGS

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APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Tiffany A. Javier, Esquire

APPLICATION: Continuance; remand

The respondent, a lawful permanent resident, appeals the Immigration Judge's

November 15, 2016, decision denying the respondent's request for a continuance and ordering
him removed to the Dominican Republic in connection with his controlled substance-related
criminal convictions. The respondent's motion to file a late appeal challenging his convictions
was pending at the time of the Immigration Judge's decision (1.J. at 1). The respondent has
submitted evidence, which we will treat as a motion to remand. 8 C.F .R. 1003.2(c). The
motion will be granted. 1

We review the factual findings, including the Immigration Judge's credibility determination,
under a "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion,
under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii); Matter ofA-S-B-, 24 I&N Dec. 493
(BIA 2008).

The respondent has submitted evidence that, on December 8, 2016, the Appellate Division of
the Supreme Court of New York, First Judicial Department, granted the respondent's motion to
accept his appeal, and deemed the notice of appeal of his convictions timely filed. See
Respondent's Motion, tab A. The United States Court of Appeals for the Second Circuit has
concluded that a late-reinstated appeal is indistinguishable from other direct appeals concerning
finality. See Abreu v. Holder, 378 Fed.Appx. 59 (2d Cir. 2010). The Department of Homeland
Security has not filed an opposition to the respondent's appeal or motion, or otherwise disputed
that the respondent's criminal convictions are on appeal. See 8 C.F.R. 1003.2(g)(3).

Under the circumstances, we will remand the record to the Immigration Judge for additional
fact-finding as to whether direct appellate review has been exhausted as to the respondent's
criminal convictions, and whether or not these proceedings should be administratively closed
pending the outcome of the respondent's appeal of his convictions. See Matter ofMontiel,
26 I&N Dec. 555 (BIA 2015).

Accordingly, the following order will be entered.

1
Given that we are remanding the case, we need not reach the merits of the appeal at this time.

Cite as: Jesus Javier de Jesus-Rosario, A056 514 289 (BIA March 31, 2017)
 lb. I

.J. A056 514 289

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

'==>
ORTHEBOARD

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

Cite as: Jesus Javier de Jesus-Rosario, A056 514 289 (BIA March 31, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

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

File: A056-514-289 November 15, 2016

In the Matter of

)
JESUS JAVIER DE JESUS ROSARIO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: Tiffany Javier

ON BEHALF OF OHS: Carolyn Foss

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is in removal proceedings, and pleadings were done on

November 15th, 2016. Respondent admitted the six allegations. Court sustained the

four charges of removability. There were no applications for relief presented to the

court. Respondent has filed a motion for a late notice of appeal, but this motion is

currently pending. Under established court precedent, the court is not required to
continue the case to await this and the conviction at this point in time. Convictions set
forth in the NTA are final for immigration court purposes.

Accordingly, the following order will be entered: the respondent is ordered

Cl

removed to the Dominican Republic on the charges in the NTA.

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

THOMAS J. MULLIGAN
Immigration Judge

A056-514-289 2 November 15, 2016