U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5/07 leesb11rg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - NEW

P .0. Box 189 8

Newark, NJ 07 101

Bronx, NY 10451

Name: GERMAN, FRANCISCO ALBERTO

A 0 45-320-817

Date of this notice: 11/21 /2014

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

DoYUtL ca.;vu
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Francisco Alberto German, A045-320-817 (BIA Nov. 21, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Davila, Carlos Manuel

A New Beginning for Immigrant's Rights.
Inc.
305 East 149 th Street, 2 nd Floor

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - NEW

P.O. Box 18 98
Newark, NJ 0 7101

NEWARK, NJ 0 7105

Name: GERMAN, FRANCISCO ALBERTO

A 04 5- 320-81 7

Date of this notice: 11 /21 /2014

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.S(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.
Sincerely,

DcnrtL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam:

Cite as: Francisco Alberto German, A045-320-817 (BIA Nov. 21, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

GERMAN, FRANCISCO ALBERTO

A04 5-320 -81 7
ICE/ ESSEX COUNTY J AIL
3 54 DOREMUS AVENUE

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A045 320 817 - Newark, NJ

Date:

NOV .212014

In re: FRANCISCO ALBERTO GERMAN a.k.a. Francisco German

APPEAL
ON BEHALF OF RESPONDENT:

Carlos Manuel Davila, Accredited Representative

APPLICATION: Continuance

The respondent, a native and citizen of the Dominican Republic, has appealed from the
Immigration Judge's decision dated July 14, 2014. The Immigration Judge found the respondent
removable as charged. The respondent requested no relief other than a continuance. On appeal,
the respondent challenges the denial of a continuance. The record will be remanded.
This Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3)(i);

Matter of R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002).

This Board reviews questions of law, discretion, and judgment, and all other issues raised in an

Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

On August 7, 2013, the respondent was convicted of Criminal Sale of a Controlled Substance
(Cocaine) in the Third Degree, in violation of New York law. Evidence of the conviction was
entered into the record (Exh. 2). The respondent requested a continuance to enable him to pursue
a late appeal of his New York conviction under New York Penal Law section 460.30.

The

respondent indicated that the Appellate Division for the Second Department accepted his motion
for a late appeal. The Immigration Judge denied the requested continuance (l.J. at 2-3; Tr. at 1622).
On appeal, the respondent challenges denial of the continuance. The respondent argues that,
once accepted for late appeal, the appeal is indistinguishable from a timely appeal, and asserts

that the Immigration Judge and this Board errs in finding otherwise. See Matter of Cardenas

Abreu, 24 l&N Dec. 795 (BIA 2009). We note that, on May 24, 2010, the United States Court of

Appeals for the Second Circuit found, in an unpublished decision, that the Board "abused its

discretion" when issuing its decision in Matter of Cardenas-Abreu, supra. In Abreu v. Holder,
378 Fed. Appx. 59 (2d Cir. 2010), the Court found that a late-reinstated appeal" . .. is equivalent
to any other direct appeal for the purposes of finality."
In light of this, this Board will remand the record to the Immigration Court for additional
fact-finding as to whether direct appellate review has been exhausted as to the respondent's
criminal conviction, and whether or not these removal proceedings against the respondent should
be terminated.

Cite as: Francisco Alberto German, A045-320-817 (BIA Nov. 21, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

!'

....

Ao4 s 320

811

Accordingly, the following order will be entered.

ORDER:

The record is remanded to the Immigration Judge for further proceedings

consistent with the foregoing opinion and entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Francisco Alberto German, A045-320-817 (BIA Nov. 21, 2014)

. '.'i$.

-.j'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
970 BROAD STREET,
NEWARK,

NJ

Davila,

Inc.

Carlos Manuel

305 East 149th Street 2nd Floor

Bronx,

NY

10451

IN THE MATTER OF
GERMAN,

DATE:

FILE A 045-320-817

Jul 23,

2014

FRANCISCO ALBERTO

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL,
MUST BE MAILED TO:

ATTACHED DOCUMENTS,

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
5107 Leesburg Pike,
FALLS CHURCH,

VA

Suite 2000

20530

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3)
SECTION 1252B{c) (3)
8 U.S.C.

OF THE IMMIGRATION AND NATIONALITY ACT,

SECTION 1229a{c) {6}

TO REOPEN,

8 U.S.C.

IN DEPORTATION PROCEEDINGS OR SECTION 240(c) {6),

IN REMOVAL PROCEEDINGS.

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
970 BROAD STREET,
NEWARK,

NJ

ROOM 1200

07102

OTHER:

COURT CLERK
IMMIGRATION COURT
CC:

SETH BRUGGER,

970 BROAD STREET,

NEWARK,

NJ,

FF

ASSISTANT CHIEF COUNSEL

ROOM 1300

07102

.
'

:t

.. ,

Immigrant & Refugee Appellate Center | www.irac.net

A New Beginning for Immigrant's Rights.

ROOM 1200
07102

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEWARK, NEW JERSEY
DETAINED FACILITY
){

-------------------------------------- -------

REMOVAL PROCEEDINGS

Francisco Alberto GERMAN,

A045-320-817,

(DETAINED)

Respondent.
----------------------------------------------

){

On behalf of Respondent
Carlos Davila, Esq.
New Beginning for Immigrant's Rights
d
305 East 149th Street, 211 Fl.
Bronx, NY 10451

On behalf of DHS
Seth Brugger, Esq.
Assist. Chief Counsel
Newark, NJ, ICE

RESPONDENT'S REQUEST FOR CONTINUANCE AND DHS'S

REQUEST ISSUE ORDER OF REMOVAL

The court was recently assigned this matter after the prior Immigration Judge ("IJ")
handling the matter left the bench. On July 10, 2014 the matter appeared on the court's docket
for a hearing. The respondent in open court requested that the above captioned matter be
continued to await the outcome of a pending post-conviction collateral attack upon his criminal
conviction. The Dep't of Homeland Security ("DHS"), Immigration and Custom Enforcement
("ICE") objects to the continuance request and request to issue an order of removal. For the
reasons stated below, the request to continue will be denied.
After listening to oral arguments from the parties and reviewing the respondent's written
motion contained in the Record of Proceedings, the court took the matter under advisement to
issue a written determination.
On July 10, the respondent during a master calendar proceeding conceded to the truth of
the factual allegations contained in the Notice to Appear ("NTA"), with the exception of
paragraph 4. Exh. 1. Based upon Exhibits 2A to 2D, the court found the factual allegations in
paragraph 4 sustained and found the respondent removable from the United States ("US")
p ursuant to 237(a)(2)(B)(i) and 237 (a)(2)(A)(iii) of the Immigration and Nationality Act
("INA").
Thereafter, the respondent requested that the matter be continued as respondent was
awaiting the results of a motion seeking leave to set aside his current criminal conviction, which
formed the grounds for his removal proceedings. The respondent was convicted in the Supreme

Immigrant & Refugee Appellate Center | www.irac.net

July 14, 2014

In the matter of

.,

.
.,

Court of the State of New York, County of New York on June 12, 2013 of the crime of criminal
sale of a controlled substance in the 3d degree under NYS Penal Law 220.29 (01 ), to wit:

cocaine. Exhs 1 & 2A to 2 .

The court took the matter under advisement to issue a decision.

DISCUSSION

The decision to grant or deny a continuance is within the broad discretion of the Immigration
Judge, if good cause is shown, and that decision will not be overturned on appeal unless it appears
that the respondent was deprived of a full and fair hearing. See Matter ofPere:-Andrade, 19 I& N
Dec. 433 (BIA 1987); 8 C.FR 1003.29, 1240.6.
The DHS-ICE argues that the respondent is pursuing a collateral attack on his convictions and
that it does not affect the finality of his criminal conv ction for federal immigration purposes. Thus,
the OHS-ICE objects to the grant of a motion to continue. See Matter ofMadrigal, 2 I I& N Dec.
323, 327 (BIA 1996) (stating that collateral attacks upon an alien's conviction do not operate to
negate the finality of the conviction unless and until it is overturned). The court recognizes that the
respondent presented substantial arguments and evidence regarding his attack on his criminal
convictions. However, it is the opinion of the court that the respondent's efforts are collateral given
that he must meet certain special circumstances to obtain leave of the court for an appeal. The
respondent did not exercise his right to a direct appeal in his criminal matter. NY Crim. Pro. Law
450.10. At this point in time the respondent's effort to overturn his conviction, which is essentially
seeking permission from the court to be excused from the time limitation set forth in NY Crim Pro
Law 450.10 to pursue an appeal, is collateral. See NYS Crim. Pro. Law 460.30(1). As such, the
respondent's recent request to the state appeal court is essentially speculative.
The respondent has been detained and his removal proceedings have been ongoing to the extent
that he was given no less than three prior continuances. The prior the Immigration Judge in this
matter granted respondent prior continuances for the purpose of seeking post-conviction relie The
OHS opposes any further continuances. Therefore, the respondent has not established that the
denial of his continuance request compromised the fairness of his removal proceedings. The
respondent's convictions remains undisturbed, as he has yet to show that he has prevailed in his
collateral criminal proceedings.
In light of the above, it is the finding of the court that the respondent did not demonstrate good
cause for a continuance. See 8 C.FR. 1003.29, 1240.6.
The respondent has not requested any other forms of relief from removal. The respondent at
a hearing admitted to the truth of the factual allegations contained in paragraphs I to 3 of the

Notice to Appear. Based upon Exhibits 1 & 2A to 2 contained in the Record of Proceedings, the
2

Immigrant & Refugee Appellate Center | www.irac.net

While the respondent concedes that he did not file a timely direct appeal within 30 days
from entry of his sentence, he argues that given the showing of certain circumstances, he is able
to seek leave of the court to file a late notice of appeal. The respondent further argues that his
motion is in essence a direct appeal because it was timely under the NYS statute and met the
special circumstances requirements.

.
'

court found the factual allegations in paragraph 4 sustained by OHS-ICE. Thus, the court finds
that the respondent is removable from the US pursuant to 237(a)(2)B)(i) and 237(a)(2)(A)(iii)
of the Immigration and Nationality Act, as amended.
Accordingly, the following orders will be entered.

IT IS ORDERED that the respondent's request for a continuance is denied;

IT IS FUTHER ORDERED that the respondent having failed to seek any other forms of
relief before the court other than the continuance, the respondent shall be removed from the
United States to the Dominican Republic pursuant to 237(a)(2)B)(i) and 237(a)(2)(A)(iii) of
the Immigration and Nationality Act, as amended.

- - - T-:::::i.-
-In ud e

Immigrant & Refugee Appellate Center | www.irac.net

ORDER