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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 22041

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Stevens, Mark OHS/ICE Office of Chief Counsel - WAS
Murray Osorio PLLC 1901 S. Bell Street, Suite 900
4085 Chain Bridge Road Arlington, VA 22202
Suite 201
Fairfax, VA 22030

Name: KHAN, AYAZ A 071-801-450

Date of this notice: 10/12/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
O'Connor, Blair
Wendtland, Linda S.
Cole, Patricia A.

. ' . '.:'

Userteam: Docket

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Cite as: Ayaz Khan, A071 801 450 (BIA Oct 12, 2017)
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 22041

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KHAN,AYAZ OHS/ICE Office of Chief Counsel - WAS
A071-801-450 1901 S. Bell Street, Suite 900
U.S. MARSHALL$, E. DIST VA Arlington,VA 22202
401 COURTHOUSE SQUARE
ALEXANDRIA, VA 22304

Name: KHAN,AYAZ A 071-801-450

Date of this notice: 10/12/2017

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.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,

DOYUtL caAAJ
Donna Carr
Chief Clerk

Enclosure

Panel Members:
O'Connor, Blair
Wendtland, Linda S.
Cole, Patricia A.

U serteam:
-.:;

Cite as: Ayaz Khan, A071 801 450 (BIA Oct 12, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A07 l 801 450 - Arlington, VA Date:

OCT 12 2017
In re: Ayaz KHAN

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mark Stevens, Esquire

ON BEHALF OF OHS: Collin Schueler


Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Pakistan, appeals the Immigration Judge's June 6, 2016,
decision denying his motion to reopen. The Department of Homeland Security has filed a brief in
opposition to the respondent's appeal. The respondent's appeal will be sustained and the record
remanded.

The record reflects that, on February 2, 2010, the respondent pled guilty to misdemeanor
assault and battery in violation of Va. Code 18.2-57. In addition, on March 19, 2010, he pled
guilty to misdemeanor assault on a family member in violation of Va. Code 18.2-57.2. Based
on these violations, the Immigration Judge found the respondent removable pmsuant to section
237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii), as an alien
convicted of two or more crimes involving moral turpitude, pmsuant to the third step in
Matter ofSilva-Trevino, 24 I&N Dec. 687 (A.G. 2008) ("Matter ofSilva-Trevino f') (II at 1).1 On
July 6, 2011, the Immigration Judge denied the respondent's application for relief and ordered him
removed (U at 1).

On August 21, 2015, the respondent filed a motion to reopen, asserting that his convictions no
longer constituted crimes involving moral turpitude pmsuant to Prudencio v. Holder, 669 F.3d 4 72
(4th Cir. 2012) and Descamps v. United States, 133 S. Ct. 2276 (2013). The Immigration Judge
denied the respondent's motion on the basis that it was untimely and was not filed within a
reasonable period after the change in law (II at 2-3). The Immigration Judge further determined
that the respondent did not warrant sua sponte reopening (U at 3-4).

We agree with the Immigration Judge's determination that the respondent's motion to reopen
was untimely (IJ at 2). With certain exceptions, a motion to reopen must be filed no later than
90 days after the final administrative order. See section 240(c)(7)(C)(i) of the Act, 8 U.S.C.
1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b). Here, the respondent filed his motion on
August 21, 2015,. approximately 4 years after his removal order.

1 The respondent was also charged under section 237(a)(2)(A)(iii) and (E) (i).

Cite as: Ayaz Khan, A071 801 450 (BIA Oct 12, 2017)
Nevertheless, upon de novo review, we conclude that sua sponte reopening is appropriate in
this matter. In Prudencio v. Holder, 669 F.3d at 482, the Fourth Circuit invalidated the third step
provided in Matter ofSilva-Trevino I, stating that an adjudicator may consider "only the conviction
itself, and not any underlying conduct." See also Matter of Silva-Trevino, 26 l&N Dec. 826
(BIA 2016) (clarifying that the categorical and modified categorical approaches apply to crimes

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involving moral turpitude). Based on this fundamental change in law, the respondent is no longer
removable pursuant to section 237(a)(2)(A)(ii) of the Act. See Matter ofSejas, 24 l&N Dec. 236
(BIA 2007) (concluding that an offense under Va. Code 18.2-57.2 is not categorically a crime
involving moral turpitude); see also Descamps v. United States, 133 S. Ct. 2276 (concluding that
the modified categorical approach may not be applied to an indivisible statute). As such, the
respondent has established exceptional circumstances warranting reopening of his case. See
Matter of J-J-, 21 l&N Dec. 976 (BIA 1997).

Based on the foregoing, we will sustain the respondent's appeal and reverse the
Immigration Judge's decision denying his motion to reopen. Since the Immigration Judge did not
address the charge under 237(a)(2)(E)(i) of the Act, the record will be remanded for consideration
of the respondent's removability pursuant to that ground of removability. 2 Accordingly, the
following order will be entered.

ORDER: The respondent's appeal is sustained, the proceedings are reopened, and the record
is remanded for further proceedings in accordance with this opinion.

FOR THE BOARD

2 We agree with the respondent's argument that the Immigration Judge should not have
alternatively found in his decision denying reopening that the respondent is removable under
section 237(a)(2)(E)(ii) of the Act, since that ground of removability has not been charged.

2
Cite as: Ayaz Khan, A071 801 450 (BIA Oct 12, 2017)
...

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
1901 South Bell Street, Suite 200
Arlington, VA 22202

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IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS
)
KHAN,Ayaz, ) File No.: A 071-801-450
)
Respondent. )

APPLICATION: Motion to Reconsider.

APPEARANCES

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:


Mark Stevens,Esq. Collin Schueler,Esq.
Murray Osorio PLLC Assistant Chief Counsel
4085 Chain Bridge Road,Suite 201 U.S. Department of Homeland Security
Fairfax,VA 22030 1901 South Bell Street,Suite 900
Arlington,VA 22202

ORDER AND DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL IDSTORY

This matter is before the Court pursuant to Respondent's motion to reconsider,filed July 7,2016.
Respondent is a forty-six-year-old native and citizen of Pakistan. On June 29, 2010, the
Department of Homeland Security ("OHS") served Respondent with a Notice to Appear
("NTA"), charging him with removability pursuant to INA 237(a)(2)(E)(i), (a)(2)(A)(ii), and
(a)(2)(A)(iii). See NTA. The Court sustained the charge under INA 237(a)(2)(A)(ii) and
dismissed the charge under INA 237(a)(2)(A)(iii). On March 25, 2011, Respondent filed an
Application for Cancellation of Removal for Certain Permanent Residents. On July 6, 2011, the
Court denied his application for relief and ordered him removed to Pakistan. On August 21,
2015, Respondent filed a motion to reopen his removal proceedings, requesting the Court
exercise its sua sponte power in light of clear legal error. On October 14, 2015, OHS filed an
opposition to Respondent's motion, arguing the Court did not commit any legal error, any
change in law is not retroactive, and Respondent does not merit an exercise of the Court's sua
sponte authority. On June 6, 2016, the Court denied Respondent's motion. For the following
reasons, the Court denies Respondent's motion to reconsider.
'

Il. DISCUSSION

A motion to reconsider must state the reasons for reconsideration by specifying the errors of fact
or law in the Court's prior decision. INA 240(c)(6)(C); 8 C.F.R. 1003.23(b)(2). Such a
motion requests the Court reexamine the original decision in light of additional legal arguments,
a change in the law, or an argument or aspect of the case that was overlooked. Matter of Cem
20 I&N Dec. 399, 402 n.2 (BIA 1991). A party may not submit new evidence with a motion to

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reconsider. Id. at 402-03. The Board of Immigration Appeals has clarified that a motion to
reconsider does not permit parties to raise additional legal arguments unrelated to issues
previously raised or arguments that "could have been raised earlier." Matter of 0-S-G-, 24 l&N
Dec. 56, 58 (BIA 2006). Ultimately, the decision to grant or deny a motion to reconsider is
within the Court's discretion. 8 C.F.R. 1003.23(b)(l)(iv).

In his motion, Respondent does not allege any error of law or fact, merely requesting "equitable
tolling of the deadline for a motion to reopen." Resp't Mot. at 2 (July 7, 2016). He again argues
that the decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008) was "wrongful
government conduct," making it impossible to file a motion until 2015. As the Court previously
noted, Respondent did not file his motion to reopen in a timely manner because the true change
in law occurred in 2012 in Prudencio v. Holder, 669 F.3d 472, 476 (4th Cir. 2012). OHS Br.
(July 22, 2016); Resp't Br. at 3. Contrary to Respondent's assertion, he did not diligently pursue
his case, as he waited years after Prudencio before taking action.

Finally, as the Court discussed extensively in its June 2016 decision, Respondent has not
established he merits sua sponte reopening. He remains removable from the United States, he
did not diligently pursue his immigration case, and he has a substantial and violent criminal
history. Respondent has eighteen arrests and ten criminal convictions. See OHS Br. Because
Respondent failed to establish any error of fact or law in the Court's previous decision, the Court
must deny his motion to reconsider.

Accordingly, the Court enters the following order.

ORDER

It Is Hereby Ordered that Respondent's motion to reconsider be


DENIED.

APPEAL RIGHTS: Both parties have the right o appeal the decision in this case. Any appeal
is due at the Board of Immigration Appeals on or before thirty calendar days from the date of
service of this decision.