% 9 W

EDUARDO A. MASFERRER, ESQUIRE

MASFERRER & ASSOCIATES, P.C.
6 BEACON STREET, SUITE 815
BOSTON, MA 02108
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oardof !mmigrationAppeals
Ojceof theC|erk
J07Leesburg Pike, Suite 000
Falls Church, Vrginia 04
OHS/ICE Ofice of Chief Counsel - BOS
P .0. Box 8728
Boston, MA 02114
Name: ALVAREZ TRONCOSO, FRANCISCO A057-287-860
Date of this notice: 1/6/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Pael Members:
Pauley, Roger
W M N ,
.F
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Francisco Jose Alvarez Troncoso, A057 287 860 (BIA Jan. 6, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
ALVAREZ TRONCOSO, FRANCISCO
20 BRADSTON STREET
At057 287-860
BOSTON, MA 02118
U.S. Department of Justice
Executive Offce fr Immigation Review
8oardof !mmigationAppeals
Ojceof theC|erk
J07Leesburg Pike, Suite 000
Fals Churc, Vrginia 04
OHS/ICE Ofice of Chief Counsel BOS
P.O. Box 8728
Boston, MA 02114
Name: ALVAREZ TRONCOSO, FRANCISCO A057-287-860
Date of this notice: 1/6/2011
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 afirms 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.
Enclosure
Panel Members:
Pauley, Roger
8 WM. . f WW PWW *
incerelv.
DC CO
Donna Car
Chief Clerk
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Cite as: Francisco Jose Alvarez Troncoso, A057 287 860 (BIA Jan. 6, 2011)
: '
a
. U.S. Department of Justce
'
Executive Ofce fr Immigration Review
Decision of te Board oflmmigation Appeals
Falls Church, Virginia 22041
File: A057 287 860 - Boston, M Date:
R P0 JII
f re: FRNCISCO JOSE ALVAREZ TONCOSO a.k.a. Francisco Alvarez Troncoso
a.k.a. Tony Motana a.k.a. Francisco Troncoso
I RMOVAL PROCEEDIGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Eduardo A. Masferrer, Esquire
CHARGE:
Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -
Convicted of controlled substance violation
APPLICATION: Remand, termination
The respondent, a native and citizen of the Dominican Republic, who was admitted to the
United States as an immigant on or about August 30, 2005, fled a timely appeal of an Immigration
Judge s September 28, 2010, decision, sustaining the charges of removabilit against him; denying
his request fr a continuance while awaiting action fom the Massachusetts state courts on his motion
fr a new trial; and ordering his removal to the Dominican Republic. While the respondent's appeal
was pending befre the Board, the respondent fled a motion to reopen and remand tis matter to the
Imigration Court fr fher proceedings based on new, material, and previously unavailable
evidence. The respondent's request is premised on the claim that the conviction which frs the
basis fr the gounds of removal has been vacated. Specifcally, the respondent has presented
evidence that on November 23, 2010, the Milfrd District Cour, Milfrd, Massachusets, ganted
the respondent's Motion to Withdraw Guilty Plea and Order a New Trial.1 We observe that the
respondent's motion was properly sered on the Department of Homeland Security ("DHS"), and
the DHS as yet ha fled no opposition or other response to this motion, and the motion is deemed
unopposed. See 8 C.F .R. I 003 .2(g)(3 ).
The Board in Matter of Pickring, 23 I&N Dec. 621 (BIA 2003), rev'd on other gounds,
Pickring v. Gonales, 465 F.3d 263 (61 Cir. 2006), held that if a court vacates a conviction based
upon a procedural or substantive defct in the underlying proceedings, there is no longer a conviction
fr immigation puroses. However, B alien remains convicted of a removable ofense when the
predicate conviction is vacated simply fr rehabilitative puroses or to aid te alien in avoiding
adverse imigration consequences and not because of any procedural or substantive defct in the
original conviction Id at 624; see also Saleh v. Gonales, 495 F.3d 17, 25 (2d Cir. 2007) Goining
and citing to the decisions of the various circuits in support of the Board's decision in Pickring that
The record refects that the respondent had been convicted on June 8, 2006, fr the ofense of
Drug Possession Class B, to wit: Cocaine, in violation ofMAss. GEN. LA ws Ch. 94C, 34 (Exh. 3).
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Cite as: Francisco Jose Alvarez Troncoso, A057 287 860 (BIA Jan. 6, 2011)
. .. p,
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A057 287 860
if a court vacates an alien's criminal conviction solely on the basis of immigration hardships or
rehabilitation, rather tha on the basis of a substantive or procedural defct in the underlying criminal
proceedings, the conviction is not eliminated fr immigration purposes and will continue to sere
as a valid fctual predicate fr a charge of removability despite its vacatur); see also
Matter of Chavez-Martinez, 24 I&N Dec. 272 (BIA 2007) (in order fr immigration consequences
to be eliminated, alien's conviction cannot be vacated solely fr immigration puroses).
In the matter befre us, however, it is clear that the criminal court judge's rling, granting the
respondent's Motion to Withdraw Guilt Plea and Order a New Trial, was based on a procedural and
substative defct in the plea entered by the respondent at his criminal tial. Specifcally, the
respondent maintains that he was provided inefective assistance of counsel, and that his plea was
not kowingly, voluntarily, or intelligently made, in violation of state and federal due process. See
Henderson v. Morgan, 426 U.S. 637, 644-45 (1976); Commonwealth v. Foster, 368 Mass. 100, 102
(1975). Therefre, the Massachusetts criminal cour's action was premised upon what it perceived
to be a procedural defct in the underlying proceedings, rather than some frm of post-conviction
relief. See Rumierz v. Gonzales, 456 F .3d 31, 34-35 (I 51 Cir. 2006) (a vacated conviction is no longer
a "conviction" within the meaning of the immigration laws only "if a court with jurisdiction vacates
[the] conviction based on a defect in the underlying criminal proceedings."); Herrera-lnirio v. INS,
208 F .3d 299 (151 Cir. 2000).
The question here is whether there is now a conviction fr a "controlled substance" violation,
or any conviction rendering the respondent not only removable but also precluding his eligibility fr
relief, or whether the proceedings should be terminated. Consequently, in view of the fregoing, the
respondent's motion will be granted, and the record will be remanded to Immigration Cour fr
frther proceedings, in order to enable the Immigration Judge to consider the new evidence ofered
by the respondent relating to his removability under section 237(a)(2)(B)(i) of the Act,
8 U.S.C. 1227(a)(2)(B)(i), and to determine whether the respondent can now establish his
eligibility fr relief fom removal, or whether the proceedings should be terminated.
Accordingly, the record will be remanded to the Immigration Cour fr frther proceedings
consistent with the fregoing opinion, and the entry of a new decision.
ORDER: The record is remanded to the Immigration Court fr fher proceedings consistent
with this opinion, and the entr of a new decision.
FOR THE BOARD
'"
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Cite as: Francisco Jose Alvarez Troncoso, A057 287 860 (BIA Jan. 6, 2011)
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JAN-11-2011 15:27 US IMMIGRATION CT BTON
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This is a memoranum of the COWT`O Decision and orders entered on

Thi! memoradu ia BOJ1 for the

coDVenienCG O CDB parties. The oral or witte Findings, Deciaion
and Orders is ehe official opinion in thia OBBO. ( ) Both parties
l Wivcd issUncc of 0 OX OXJ deciion 1 the CDO.
=espqndent w8B GYBO EV from the Oiced BTCB to

i ) in a:entia e

( BOGB applicati ZOZ NX DEPAT W1W and
.
respondent WW ordered rGmove to , in the
altertive to
Respondent' O for NOLU1 VT WBB util
, upon potin9 a voluntar departure bnd in the BOWC
O

to DHS within five DU1D0DD dys XOM the date O CD1B

order, with an BJCHXDBCO OX0X of reovl to

W2 Responden,t shall present CO OHB wiehin

) thirty dys } sity dy from the C O thi Order, &1J
necesEar travel documente ;OY VO1UDCBZ QG@B$CUZ.
J Resondenc1s

aplication OY PX waE ( ) grated <- >denied

( ) _withdawn with prejudice. .
{ ) sjecc co CDQ P C uder the IN secCion 207(a) (5).
( > RespOndent kowingly filed #YW aslu application.

Rspondento applicBtion OI H11HOWJ of removal uner
seccion 24l(b} (3} W0 ( ) granted ( ) denied ( ) withdrawn witb
prejudice. .
cspondcnt'S application for WWJ of remoal uder the Tortue
convention was {. )

grted ) 0PC ( ) wthorw H11D prejudice.

Resondent o application for DEFER of removal uder the orcure
Convention was l ) granted ( } denied ( ) withdraw with prejudice.
c l Respndent's application for CCELTION of :emoval uder section
( ) 203 (b)" `O MPy ( ) 240A(a) { ) 240A(b) (l) ( ) 240A(b) (2)
O the IA. was (. ) granted ( ) denied ( ) wiedraw wit prejudice.
If grated, it w OXB$O CDdC the HU issue all a:p ropriate docuets
necessar to give effect to VD1B order. Resondent l ) 1s l >is not
suject to the P C under I ection"240A(e).
aespondant1s application fo H&YB W0O CD0 IN section
was ( ) granted ( ) cem.-d ( . ) witb:aw or
) other ( ) The Onditions imsed Oy
: Bection 2b on the repondent'D peranent reDident otatua were remoed.
Respondent ` s application for of.status uder section

of the ( ) IN ( ) NACA ( ) was .

( ) granted C > denied H4TD0T0% with prejudice. JT ganted,
it was ordered that ObU issue 0J appropriate.documents necessary to
give effect to this Orerv

LbU N&B1 057-287-

860 RVUt PVZ TONCObO, UbUO
l Resndent's otatuo was RSCIE pursuant to. the J section 246.
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JAN-11-2011 16:27 US IMMIGRATION CT BSTON 6176654495 ... ees
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-Reepondent' S motion to wTHDR his <plication for edission HB
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.respont ails to aid b

y
a
y
of
the conditions

directed b
y
the district director' of Hb then the
BJCOZCC XCZ of removal BDJJ becoae.. imdiately effective witht
fUer notice or proceedings: the respondent shall be remoc'd from
-
.
th o:ted

St4tes to _@g,

Resondent was AMITTE

as a util
B condition of adissin, CDO rcponet
odercd to post $ bond.
+

0G9 W0 ( ) TERITED ( .) with ) withot p;ejucice
( )

AMlXSTTXVLY CLOSE; .

j Respondent :was orally acsed of the LIMITATION o dicretioJr

: relief ad con
9
qence for filure to depart as orde:ed.
E ] :fyo- fail 'eo NOJUC0X1J_ dep<rt wUBD a BB rqired, y shll
b suject to. civil money penaley of t least$1,000, but not more th
$5,000, a be ineligible for period of 10 years for a UCW
' re;ief. ude: J
\
sections 21,0f, 2408,. 45, .an 248 (I section 240B(d)).
[ ) 'r1

you Je uQe: a :final otder of removal, ad if yu H1&U&& fail

OZ ZUO CO 1) ;-.depar.t .wher1 and as reqired, ") mae timl
y
aplication
i good fwit tor B docuents necessar for. OGZCUZG,'OI 3) present
yourslf for removal CW JN0 D place
.
reqired, or, if U

<0DQ1Z0
to or take any

aceion 4esi9nea to prevent o;:hme O deartue, you

BD111 suject to O3V1J money pn1t
y
.
.
of. up to '$500 tor each dy uder
8ch violtion. (:NA section 2

7-D (a)) = :f you are remoale BWT

- . ' .

to I 237 (a), then you shel.l :\ter

)e tred ud/or imrb:oned for up.
to 10 yei1. (IN 1ection 243 (a). (l)).
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