Framm-Anton, Hedi, Esq. Attorney at Law 1300 So. Van Ness Ave ., Ste 201 San Francisco, CA 94110-4084

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. Virginia 2204/

OHS/ICE Office of Chief Counsel - SFR P .0. Box 26449 San Francisco, CA 94126-6449

Name: GRANADOS SOLANO, FELIPE A 075-540-798

Date of this notice: 11/27/2015

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

Enclosure

Panel Members: Grant, Edward R.

Sincerely,

Don.rtL C t1/Vu

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Felipe Granados Solano, A075 540 798 (BIA Nov. 27, 2015)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A075 540 798 - San Francisco, CA

In re: FELIPE GRANADOS SOLANO

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Hedi Framm-Anton, Esquire

APPLICATION: Continuance; adjustment of status

NOV 2 7 2015

The respondent, a native and citizen of Mexico, appeals from the August 27, 2014, decision of the Immigration Judge denying a continuance. The record will be remanded.

At a master calendar hearing in June 2011, the respondent informed the Immigration Judge that he was the beneficiary of an approved visa petition filed on his behalf by his United States citizen wife and was eligible to adjust status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255 (Tr. at 23-24). At a subsequent master calendar hearing in February 2014, the respondent advised the court that he had retained a criminal attorney in order to attempt to vacate his conviction for a violation of California Health and Safety Code§ 11550 (Tr. at 35). At the merits hearing before the Immigration Judge in August 2014, the respondent requested a continuance to pursue vacation of his criminal conviction (Tr. at 48).

In the August 2014 decision, the Immigration Judge acknowledged that the respondent's drug conviction had been expunged under§ 1203.4 of the California Penal Code on March 25, 2010 (Tr. at 43). However, the Immigration Judge denied a continuance based on the decision of the United States Court of Appeals for the Ninth Circuit in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) ( en bane), citing to that part of the decision holding that expungement of a state drug conviction under§ 11550 does not require the same treatment, for immigration purposes, as a federal drug conviction that has been expunged under the Federal First Offender Act (I.J. at 2; Tr. at 43). However, the Ninth Circuit held that the new rule should not be applied retroactively. Nunez-Reyes, 646 F.3d at 694. The respondent's conviction under the California Penal Code was expunged prior to the decision in Nunez-Reyes. Accordingly, we find that a remand to the Immigration Judge is warranted for a new decision.

ORDER: The record is remanded to the Immigration Judge for further proceedings and the issuance of a new decision.

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Cite as: Felipe Granados Solano, A075 540 798 (BIA Nov. 27, 2015)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA

File: A075-540-798

In the Matter of

August 27, 2014

FELIPE GRANADOS SOLANO IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGE: 212(a)(6)(A)(l4) of the Immigration and Nationality Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT: HEDI FRAMM-ANTON

ON BEHALF OF OHS: BRIDGET L. PARK

ORAL DECISION OF THE IMMIGRATION JUDGE

Removability as charged was previously conceded in this matter. Respondent

ha§.Ei declined to request voluntary departure. even after the Court-t:.aa indicated that

since there was apparently no pending motion in Santa Clara County to vacate his 1998

Cal1forn1a Health and Safety 11550 conviction for being under the influence of a

controlled substance, t-hat--it was not going to grant any further continuances.,.

and that

he did not appear to be eligible for cancellation of removal or adjustment of status

because of that drug conviction.

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Although It was learned that the drug conviction had been expunged under

Section 1203.4 of the California Penal Code on March 25, 2010.,::- -A-Ra-as the Ninth

Circuit explained in Nunez-Reyes. 646 F .3d 684, 695 (91'1 Cir. 2011) (en bane). ffi-t.l::le..eA 1

bane opiniofH·n 20·11. Federal First Offender Act and similar expungements do not

remove an 11550 conviction from an individual's record for iimmigration purposes.

A�Rfi.-as the Court was explaining to respondent.... that he was being ordered

removed ... since his counsel had indicated she did not believe he was eligible for any

other relief and respondent had declined to request voluntary departure, respondent

began to explain that he felt the situation in Mexico was dangerous, and that he had a

friend who had returned to Acapulco and within a week had been killed there, and so we

went off the record so that respondent could further discuss with his counsel withholding

of removal.

The Court ha4-also briefly explained f:}fOQ.filSecution-based and torture-:.based

relief and respondent's right to file such an application and receive a hearing about it.

+However. the respondent_-nonetheless declined to pursue this potential avenue

of relief.

ORDERW

IT IS THE ORDER of the Court that respondent be removed from the United

States to Mexico based upon the charge contained in the Notice to Appear.

The only application for relief that has been filed is an application for adjustment

of

Status, and t-he-GiHJft-w1ll be notH�9-tRat-this application IS DENIED at this time due to

the Health and Safety Code 1 1550 conviction. which renders respondent inadmissible,

and for which no waiver of inadmissibility 1s available.

A07 5-540-798 2 August27,2014

. Formatted: Superscript_

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signature

A075-540-798

Please see the next page for electronic

JOREN LYONS Immigration Judge

3 August27,2014

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I 01-

..

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//s//

Immigration Judge JOREN LYONS

lyonsj on November 25, 2014 at 3:52 PM GMT

A075-540-798 4 August27,2014

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