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    Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the intervening decision in Mellouli v. Lynch, 135 S. Ct 1980 (2015), under which Respondent was no longer inadmissible because of his convictions for possession of drug paraphernalia. The decision was issued by issued by Member Edward Grant.

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    Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    583 views4 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the intervening decision in Mellouli v. Lynch, 135 S. Ct 1980 (2015), under which Respondent was no longer inadmissible because of his convictions for possession of drug paraphernalia. The decision was issued by issued by Member Edward Grant.

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    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the intervening decision in Mellouli v. Lynch, 135 S. Ct 1980 (2015), under which Respondent was no longer inadmissible because of his convictions for possession of drug paraphernalia. The decision was issued by issued by Member Edward Grant.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    583 views4 pages

    Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings sua sponte in light of the intervening decision in Mellouli v. Lynch, 135 S. Ct 1980 (2015), under which Respondent was no longer inadmissible because of his convictions for possession of drug paraphernalia. The decision was issued by issued by Member Edward Grant.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
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    The respondent, a lawful permanent resident, filed a motion to reopen his immigration case based on a Supreme Court decision that affected the removability of his criminal conviction.

    The respondent was originally charged and convicted in 2010 of possession of drug paraphernalia in a Florida state court.

    Originally, the Immigration Judge and BIA found the respondent removable based on the determination that his 2010 conviction prevented him from accruing the required 7 years of continuous residence for a waiver of inadmissibility.

    U.S.

    Department of Justice

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office ofthe Clerk

    5107 leesburg Pike, Suite 2000


    Falls Church, Virgm1a 22041

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Abrusley, Luke H. OHS/ICE Office of Chief Counsel - ORL
    Luke Abrusley Law 3535 Lawton Road, Suite 100
    Po Drawer 1299 Orlando, FL 32803
    Oakdale, LA 71463

    Name: KIRLEW, VIVROY A 058-906-861

    Date of this notice: 11 /30/2017

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

    Sincerely,

    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Grant, Edward R.

    Usertea m: Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index

    Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
    U.S. Department of Justice

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office of the Clerk

    5 /07 Leesburg Pike, Suite 2000


    Falls Church, Virginia 22041

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    KIRLEW, VIVROY OHS/ICE Office of Chief Counsel - ORL
    LPDC 3535 Lawton Road, Suite 100
    P.O. BOX 560 Orlando, FL 32803
    TROUT, LA 71371-0000

    Name: KIRLEW, VIVROY A 058-906-861

    Date of this notice: 11/30/2017

    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. § 1292.5(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,

    DCWU- ct1IVt.)
    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Grant, Edward R.

    Userteam:

    Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
    U.S. Departmep.t o( Justice Decision of the Board of Immigration Appeals
    Executive Office for Immigration Review

    Falls Church, Virginia 22041

    File: A058 906 861 - Orlando, FL Date:

    In re: Vivroy KIRLEW


    NOV 3 0 2017

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    IN REMOVAL PROCEEDINGS

    MOTION

    ON BEHALF OF RESPONDENT: Luke H. Abrusley, Esquire

    APPLICATIONS: Reopening; remand; stay of removal

    This case was last before us on January 14, 2015, when we entered a final administrative
    order dismissing the respondent's appeal. On June 13, 2017, the respondent submitted the instant
    motion to reopen and remand pursuant to 8 C.F.R. § 1003.2. He requests a stay of removal. The
    Department of Homeland Security (DHS) has not responded to the motion. The motion will be
    granted.

    The record reflects that the respondent, a native and citizen of Jamaica, was granted lawful
    permanent resident status on September 10, 2006, was arrested and charged with possession of
    drug paraphernalia on December 16, 2009, and was convicted on January 19, 2010, in a Florida
    state court of possession of drug paraphernalia. On July 18, 2011, the respondent was issued a
    Notice to Appear and charged with removability as an alien convicted of a controlled substance
    ·

    violation.

    On August 15, 2013, the Immigration Judge found the respondent to be removable as charged,
    and pretermitted his application for a waiver of inadmissibility under section 212(h) of the
    Immigration and Nationality Act, 8 U.S.C. § l 182(h), upon finding that the respondent's
    2010 conviction cut off the period of lawful residency required for statutory eligibility for the
    waiver. On appeal, we agreed with the Immigration Judge and, citing Matter of Martinez­
    Espinoza, 25 I&N Dec. 118 (BIA 2009), we concluded that the respondent cannot demonstrate
    seven years of continuous lawful residence immediately preceding the issuance of his 2011 Notice
    to Appear to be eligible for a section 212(h) waiver.

    The respondent now seeks reopening and a remand based on his assertion that his conviction
    for possession of drug paraphernalia is no longer an inadmissible offense pursuant to Mellouli v.
    Lynch, 135 S.Ct 1980 (2015), and his claim that his legal residency can be reinstated. See Motion
    at 2. He contends that reopening sua sponte is warranted.

    The decision of the Court in Mellouli v. Lynch, 135 S.Ct at 1980, abrogated Matter of
    Martinez-Espinoza, 25 I&N Dec. at 118, by holding, in part, that our interpretation of the federal
    removal statute under which convictions for paraphernalia possession trigger removal whether or
    not they necessarily implicate a federally controlled substance, was not entitled to deference under

    Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)
    · A058 906 861
    .
    .

    Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct.
    2778, 81L.Ed.2d 694 (1984).

    The respondent's motion has been filed out of time. See section 240(c)(7)(C)(i) of the Act,
    8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § l003.2(c)(2) (with limited exceptions, a motion to reopen
    must be filed within 90 days of the date of entry of a final administrative order). Further, the

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Court's decision in Mellouli v. Lynch, 135 S.Ct at 1980, was issued on June l, 2015, more than
    two years before the respondent filed the instant motion. However, in view of the totality of the
    circumstances presented here, we will reopen these proceedings sua sponte and remand the record
    to the Immigration Judge for further proceedings and the entry of a new decision. See 8 C.F.R.
    § l003.2(a). In remanding, we intimate no opinion regarding the respondent's claims regarding
    his eligibility for relief from removal. Accordingly, the motion will be granted. The respondent's
    stay request is moot.

    ORDER: The motion to reopen is granted, and the record is remanded to the Immigration
    Judge for further proceedings and the entry of a new decision.

    Cite as: Vivroy Kirlew, A058 906 861 (BIA Nov. 30, 2017)

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