U.S.

Department of Justice

, Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 leesburg Pike. Suite 2000

Falls Church, V1rg1ma 2204/

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

Citrin, Mark OHS/ICE Office of Chief Counsel - KRO
Mark Citrin, P.A. 18201 SW 12th St.
11900 SISCAYNE BLVD STE 506 Miami, FL 33194
NORTH MIAMI, FL 33181

Name: HERRERA, ALBEIRO A 038-768-362

Date of this notice: 3/27/2019

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Albeiro Herrera, A038 768 362 (BIA March 27, 2019)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A038-768-362 - Miami, FL Date: MAR 2 7 2019

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

In re: Albeiro HERRERA

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Mark Citrin, Esquire

APPLICATION: Reopening

The Board dismissed the respondent's appeal on November 6, 2018, and he filed a timely
motion to reopen on January 24, 2019. Section 240(c)(7) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). The Department of Homeland Security (OHS)
has not responded to the motion. We will reopen the case, and tenninate these proceedings without
prejudice.

The respondent was found subject to removal under section 237(a)(2)(B)(i) of the Act, 8 U.S.C.
§ 1227(a)(2)(B)(i), as an alien convicted of a controlled substance violation, other than a single
offense involving possession for one's own use of 30 grams or less of marijuana.

This was based on a December 4, 2008, Florida conviction for cannabis possession of20 grams
or less, and a July 5, 2015, Florida conviction for cannabis possession of20 grams or less.

Evidence is presented that, on December 27, 2018, the criminal court granted the respondent's
post-conviction motion, and vacated the 2015 plea and judgment as "constitutionally infirm."
(Respondent's Mot. at 3-8, Exh). The respondent had argued in the post-conviction motion that
the plea was invalid, and he was not questioned as to the voluntariness of his plea. Id The criminal
charge is now pending.

The respondent's 2015 conviction is no longer valid for immigration purposes, and cannot
support the charge of removability. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006) (holding
that a conviction vacated pursuant to a state statute for failure of the court to advise the respondent
of the possible immigration consequences of a guilty plea is no longer a valid conviction for
immigration purposes); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003); see al:io
Matter ofMarquez Conde, 27 I&N Dec. 251 (BIA 2018) (modifying the decision in Pickering to
give it nationwide application); Matter ofJ.M Acosta, 27 I&N Dec. 420, 428-29 (BIA 2018).

As the respondent argues, as his remaining 2008 conviction is for possession of marijuana
under 30 grams, he is no longer subject to removal as charged under section 237(a)(2)(B)(i) of the
Act (Respondent's Mot. at 5).

Cite as: Albeiro Herrera, A038 768 362 (BIA March 27, 2019)
A038-768-362

· The respondent's motion to reopen will, therefore, be granted, and the proceedings will be
terminated.
ORDER: The respondent's motion to reopen is granted.

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

FURTHER ORDER: These removal proceedings are terminated without prejudice.

2
Cite as: Albeiro Herrera, A038 768 362 (BIA March 27, 2019)