LOS Angeles Immigration Judge Gita Vahid-Tehrani terminated the removal proceedings of a retired, 78-year old Filipino businessman at the hearing on August 22, 2013, by granting his motion to terminate such proceedings filed on October 4, 2012.
This Author represents the Filipino respondent, who was placed in removal proceedings by the issuance and service of the original Notice To Appear (Form I-862) on August 24, 2001. His identity is withheld to protect his privacy, even as he has consented to the publication of this article.
Immigration Judge Gita Vahid-Tehrani, in her Decision and Orders of the Immigration Judge dated August 22, 2013, found that the retired Filipino businessman is not inadmissible as charged: as an arriving alien based on his conviction entered on September 9, 1991, before the effective date of IIRIRA of 1996.
Citing the Supreme Court’s decision of Vartelas v. Holder, 132 S. Ct. 1479 (March 28, 2012) and the 9th Circuit’s decision in Camins v. Gonzales, 500 F. 3d 872 (2007), Judge Tehrani ruled that the Filipino respondent cannot be charged as an arriving alien subject to inadmissibility because he is subject to the Fleuti doctrine that he cannot be regarded as arriving alien seeking admission, if his last departure was innocent, casual, and brief.
Respondent’s motion to terminate with prejudice removal proceedings:
As stated above, on October 4, 2012, the Filipino respondent, through this Author, filed his Motion To Terminate With Prejudice Removal Proceedings Due To Improvident Issuances of the Original
And Lodged Charges, pursuant to 8 C.F.R. § 239.2 (a)(6).
The original charge in the Notice To Appear (“NTA”, Form I-862) filed on August 24, 2011, charged the Filipino respondent as an inadmissible returning alien for having been convicted of a crime involving moral turpitude.
The lodged charge (Form I-261) dated March 25, 2009 withdrew the original charge and also withdrew the allegation of arriving alien, and based inadmissibility on the conviction of an aggravated felony.
But the lodged charge was then withdrawn by the Government at the hearing on October 27, 2011 because the Government’s “intervening authority” cited for the lodging of the charge (Form I-261): Camins v. Gonzalez, 500 F. 3d 372 (9th Cir. 2007) was misplaced since it applied only to a lawful permanent resident who pled guilty prior to IIRIRA’s effective date of April 1, 1997.
The Filipino respondent was convicted by a Boston jury, after he pled not guilty. Moreover, the Government, through Assistant Chief Counsel Eric Price, conceded that the Filipino respondent was eligible for cancellation of removal for a lawful permanent resident and INA Section (h) waiver for his criminal conviction.
LA Immigration Court’s decision on August 22, 2013.
It was the Government’s position that the withdrawal of the lodged charge dated March 25, 2009, resurrected the original charge filed on August 24, 2001, which charged the respondent as an inadmissible returning alien for having been convicted of a crime involving moral turpitude.
As stated above, Judge Gita Vahid-Trhrani found that the charge of inadmissibility as an arriving alien cannot be sustained because the Vartelas court held that lawful permanent residents convicted before the affectivity of IIRIA cannot be regarded as arriving aliens, if their last departure was innocent, casual, and brief.
So, the removal proceedings of the 78-year old, retired Filipino businessman was terminated after 12 years, but with a reservation of appeal by the Government to the BIA by September 23,2013.
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Roman P. Mosqueda has practiced criminal defense and Immigration law for over 20 years. He is a long-time member of the California Public Defenders Association. , and trained as a prosecutor with the Los Angeles City Attorney under the Trial Advocacy Program of the Los Angeles County Bar Association. He is also a volunteer, State-Bar trained arbitrator on attorney’s fees dispute resolution. Send comments or inquiries to [email protected] , or call (213) 252-9481 for free consultation appointment, or visit his website at www.mosquedalaw.com
