U.S.

Department of Justice

Executive Office for Immigration Review

Board oflmmigration Appeals
q[fice of the Clerk
5/07 l.eesb11rg Pike, S11ite 2000
Falls Church. Virginia 220./ I

OHS/ICE Office of Chief Counsel - SLC

2975 Decker Lake Dr. Stop C
West Valley City, UT 84119

Name: MATA-MARTINEZ, FRANCISCO ...

A 044-108-993

Date of this notice: 10/22/2015

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

Don.n.L

t1IVu

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John
Pauley, Roger
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Francisco Manuel Mata-Martinez, A044 108 993 (BIA Oct. 22, 2015)

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

Crayk, Adam Lee

STOWELL AND CRAYK, PLLC
2225 South State Street
SALT LAKE CITY, UT 84115

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 2204 J

OHS/ICE Office of Chief Counsel - SLC

2975 Decker Lake Dr. Stop C
West Valley City, UT 84119

Name: MATA-MARTINEZ, FRANCISCO ...

A 044-108-993

Date of this notice: 10/22/2015

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,

DOWU,_ Cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Pauley, Roger
Malphrus. Garry D.

Userteam:

Cite as: Francisco Manuel Mata-Martinez, A044 108 993 (BIA Oct. 22, 2015)

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MATA-MARTINEZ, FRANCISCO MANUEL

A044-108-993
2975 DECKER LAKE DRIVE STOP A
WEST VALLEY, UT 84119

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A044 108 993 - West Valley, UT

Date:

OCT 2 2 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Adam L. Crayk, Esquire
ON BEHALF OF DRS:

P. Michael Truman
Assistant Chief Counsel

APPLICATION: Termination of proceedings

The respondent, a native and citizen of Mexico, who was previously granted lawful
permanent resident status in the United States, has appealed from the Immigration Judge's
decision dated June 15, 2015. The Immigration Judge found the respondent removable and
based on his criminal convictions, denied the respondent's motion to terminate, and ordered the
respondent removed.
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 l&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).
The Notice to Appear alleges that, on January 30, 2013, the respondent was convicted of 3
counts of Wrongful Appropriation, in violation of Utah Code 76-6-404.5, a class A misdemeanor,
and sentenced to 365 days on each count, to be served concurrently. A record of this conviction
was entered into the record of proceedings (Exh. 4). See section 240(c)(3)(B) of the Immigration
and Nationality Act, 8 U.S.C. 1229a(c)(3)(B); 8 C.F.R. 1003.41(a). The respondent was
charged with being removable for having been convicted of an aggravated felony involving
theft. 1

The term "aggravated felony" includes a theft offense (including receipt of stolen property) or
burglary offense for which the term of imprisonment is at least 1 year. See section 10l{a)(43)(G)
of the Act, 8 U.S.C. 1101(a)(43)(G). See also Gonzales v. Duenas-Alvarez, 549 U.S. 183
(2007).
1

Cite as: Francisco Manuel Mata-Martinez, A044 108 993 (BIA Oct. 22, 2015)

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

In re: FRANCISCO MANUEL MATA-MARTINEZ a.k.a. Francisco Mata Martinez

a.k.a. Manuel Mata-Martinez a.k.a. Manny

,.

A044 108 993

On April 16, 2015, the respondent filed, with the state criminal court, a motion to reduce his
convictions under Utah Code 76-3-402(1), because he had paid the fines and restitution. On
April 29, 2015, the state criminal court granted the motion and reduced the charges from class A
misdemeanors to class B misdemeanors.

First we note that, in granting the motion, the state criminal court order indicates: "These
convictions are now class B Misdemeanors in all regards, including the sentence associated
therewith, the penalties, and the fines." We therefore interpret the state court's order contrary to
the Immigration Judge, as reducing the respondent's sentence as well as the grade of his
convictions.
In Matter of Cota-Vargas, 23 I&N Dec. 849, 851-52 (BIA 2005), this Board indicated that a
criminal court's decision to reduce an alien's criminal sentence nunc pro tune is entitled to full
faith and credit by an Immigration Judge, and such reduced sentence is to be recognized as valid
for purposes of immigration law without regard to the reason for the sentence reduction. The
respondent's sentence was modified from 1 year to 6 months by the state criminal court order.
As a result, the respondent no longer has the requisite 1-year sentence. Consequently, he is not
removable under section 101(a)(43)(G) of the Act. See 8 U.S.C. 1101(a)(43)(G) (1997);
Matter of Cota-Vargas, supra; Matter of Song, 23 l&N Dec. 173 (BIA 2001) (where a criminal
court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the
sentence to less than I-year imprisonment, the alien does not have a conviction for an aggravated
felony involving theft).
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The Immigration Judge's decision dated June 15, 2015, is vacated.
FURTHER ORDER: The record will be remanded to the Immigration Judge for further
proceedings consistent with this decision.

FifR THE BOARD

2
Cite as: Francisco Manuel Mata-Martinez, A044 108 993 (BIA Oct. 22, 2015)

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On May 15, 2015, the respondent filed a motion to terminate proceedings with the
Immigration Court, contending that, because the maximum sentence for a class B misdemeanor
is 6 months, the convictions no longer constitute aggravated felonies. The Immigration Judge
denied the motion to terminate. Relying on Matter of Pickering, 23 I&N Dec. 621 (BIA 2003),
rev'd on other grounds sub nom, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), the
Immigration Judge declined to recognize the reductions from class A misdemeanors to class B
misdemeanors because the convictions were reduced due to a rehabilitation statute. In addition,
the Immigration Judge indicated that the state criminal court did not reduce the respondent's
sentence I.J. at 3-5). On appeal, the respondent challenges denial of the motion to terminate
proceedings.

. .. 'f

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2975 S. DECKER LAKE DR., #200
WEST VALLEY, UT 84119
STOWELL AND CRAYK, PLLC
Crayk, Adam Lee
2225 South State Street
SALT LAKE CITY, UT 84115
FILE A 044-108-993
IN THE MATTER OF
MATA-MARTINEZ, FRANCISCO MANUEL

\J.

DATE: Jun 15, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
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, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
,
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530

"/\..rs

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) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B (c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
2975 S. DECKER LAKE DR., #200
WEST VALLEY, UT 84119
OTHER:
COURT CL
IMMIGRAT
C

CC:
I

FF

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

r.... .....


l!f!!J

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SALT LAKE CITY, UTAH

In the Matter of:

Francisco Manuel Mata-Martinez

Respondent.

APPLICATIONS:

:.;' _5, 2015

Date of Decision: _Jl_.!;,._. _1_5_::_1
IN REMOVAL PROCEEDINGS
WRITTEN DECISION OF THE
IMMIGRATION JUDGE ORDERING
RESPONDENT REMOVED

None.

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Mike Truman
Adam L. Crayk, Esq.
Assistant Chief Counsel
2225 South State Street
2975 S. Decker Lake Dr., Stop C
Salt Lake City, UT 84115
West Valley City, Utah 84119
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I.

INTRODUCTION AND PROCEDURAL HISTORY

Respondent is a 34-year-old (DOB: 06/08/1981) male native and citizen of Mexico. (Exh.

I.) The United States Department of Homeland Security (OHS) brought these removal
proceedings against the respondent under the authority of the Immigration and Nationality Act
(INA or Act) pursuant to the filing of a Notice to Appear (NTA), which is marked in the record
as the first Exhibit. 8 C.F.R. 1003.14(a); (Exh. 1.) The NTA is dated March 09, 2015. (Id)
The original NTA contains four allegations. The allegations set forth in the NTA are: (I)
the respondent is not a citizen or national of the United States; (2) the respondent is a native of
Mexico and a citizen of Mexico; (3) on July 21, 1993, the respondent's status was adjusted to
that of lawful permanent resident under section 245 of the Act; (4) on January 30, 2013, the
respondent was convicted of three counts of Wrongful Appropriation in violation of Utah Code
1
A: 044-108-993

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File Ne: A044-108-993

section 76-6-404.5, a class A misdemeanor, and was given a concurrent sentence of 365 days.
(Exh. 1.)
The original NTA contains one charge of removability: Respondent is charged with
an alien who has been convicted of an aggravated felony as defined in section 10l(a)(43)(G) of
the Act, a law relating to a theft offense (including receipt of stolen property) or burglary offense
for which the term of imprisonment at least 1 year was imposed. (Exh. 1.)
On April 16, 2015, the respondent filed a motion with the state court to reduce his
convictions under Utah Code 76-3-402(1 ). (Resp't's Mot. to Terminate at A-11.) On April 21,
2015, the respondent admitted all of the allegations and denied the charge of removability. On
April 29, 2015, the state court granted the respondent's motion and reduced his charges from
class A misdemeanors to class B misdemeanors. (Id. at A-12, 13.) On May 15, 2015, the
respondent filed a motion to terminate removal proceedings arguing that, because his convictions
were reduced to class B misdemeanors, the maximum sentence for class B misdemeanors
automatically reduces their corresponding sentence to 180 days, making his convictions no
longer qualify as aggravated felonies for immigration purposes. (Id. at A-2-3.) In court on May
18, 2015, the DHS opposed the motion to terminate, arguing that the post-conviction reductions
did not affect the imposed sentence and that the convictions continue to qualify as aggravated
felonies for immigration purposes.
At issue in this case is whether the respondent's convictions for Wrongful Appropriation,
for which the respondent was sentenced to 365 days, still qualify as aggravated felonies after
being reduced to class B misdemeanors.
For the reasons set forth below, the Court DENIES the respondent's motion to terminate
removal proceedings and orders the respondent removed from the United States to Mexico.
II.

SUMMARY OF EVIDENTIARY RECORD

The record of proceeding comprises six (6) exhibits. All exhibits were admitted into

evidence, and the Court has considered all exhibits and evidence in the record of proceeding,
whether referred to in this decision or not.
A. Documentary Evidence Considered

Exhibit 1 is the NTA. Exhibit 2 is a packet of the respondent's conviction documents.

Exhibit 3 is another packet of the respondent's conviction documents. Exhibit 4 is another packet
2

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removability pursuant to INA section 237(a)(2)(A)(iii), as amended, "in that [the respondent is]

of the respondent's conviction documents. Exhibit 5 is the text of the Utah Wrongful
Appropriation statute, 76-6-404.5. Exhibit 6 is a copy of In Re V-Z-S-, 22 I&N Dec. 1338 (BIA
2000).
Testimony was not given; the decision in this case is made as a matter of law.
III.

STATEMENT OF LAW

A. Removability

The Act classifies an alien as removable who has committed an aggravated felony. INA
237(a)(2)(A)(iii). A conviction for Wrongful Appropriation is considered an aggravated felony
"theft offense" if the term of imprisonment is at least one year. In re V-Z-S-, 22 I&N Dec. 1338
(BIA 2000); INA 237(a)(43)(G) .
B. Vacating Convictions versus Sentence Reduction

Criminal convictions vacated due to substantive or procedural defects in the underlying

proceeding may not serve as a basis for removal, but convictions vacated or expunged through
post-conviction rehabilitative procedures may. Esparza-Recendez v. Holder, 526 Fed. Appx. 886,
888 (1 0th Cir. 2013) (citing Matter ofPickering, 23 I&N Dec. 62 1 (BIA 2003), rev 'd on other
grounds sub nom., Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). The BIA recognizes a
significant distinction between convictions vacated on the basis of procedural or substantive
defect in the underlying proceedings and those vacated because of post-conviction events. Matter
of Pickering, 23 I&N Dec. at 624.
Sentence reductions, however, are treated differently. Matter of Cota- Vargas, 23 I&N
Dec. 849 (BIA 2005). A respondent's criminal sentence is nunc pro tune entitled to full faith and
credit by immigration judges without regard to the trial court's reasons for effecting the
modification or reduction. Id ; see also Garcia-Lopez v. Ashcroft, 334 F. 840, 846 (9th Cir.
2003); Matter ofSong, 23 l&N Dec. 173 (BIA 2001). In Matter of Cota- Vargas, the respondent,
without alleging that his original sentence was substantively unlawful or procedurally defective,
sought a reduction in state court for immigration purposes. Matter of Cota-Vargas, 23 I&N Dec.
at 850. The state court granted the respondent's request and reduced his probationary period
nunc pro tune. Id. The Immigration Judge denied the respondent's motion to terminate removal
proceedings as not deportable as an alien convicted of an aggravated felony, citing Matter of
Pickering. Id The BIA, in Matter of Cota- Vargas, gave the respondent's sentence modification
A: 044-1 08-993

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B. Testimony Considered

full faith and credit and, as such, terminated removal proceedings.

In other words, there are two different components to a conviction that can be reduced or
modified: ( 1 ) the level and type of conviction and (2) the length of sentence imposed; Per
reduction is valid for immigration purposes only when due to substantive or procedural defects,
not when due to post-conviction rehabilitation. However, per Cota-Vargas and Song, a reduction
in the sentence imposed is valid for immigration purposes no matter the reason.
C. Utah Code Misdemeanor Sentence Maximums

Class A misdemeanors have a sentence maximum of one year; class B misdemeanors

have a sentence maximum of six months; and class C misdemeanors have a sentence maximum
of 90 days. Utah Code Ann. 76-3-204.
IV.

ANALYSIS

The respondent's convictions for Wrongful Appropriation continue to qualify as

aggravated felonies; and, as such, his motion to terminate is denied. The respondent argues that,
since he received a section 402 rehabilitation reduction, and since class B misdemeanors have a
maximum sentence of 180 days, the sentence for his convictions is automatically reduced from
365 days to 1 80 days. The respondent further argues that it is a "legal impossibility" for a person
to be convicted of a class B misdemeanor and have a sentence of 365 days imposed. Were this
the case, the respondent's convictions would no longer meet the 365-day-sentence requirement
in INA section 1 0l (a)(43)(G) and would no longer qualify as aggravated felonies. The
respondent cites Cota-Vargas and Song, supra, as supporting his arguments.
The respondent did not ask the trial court for, nor did he receive, a sentence reduction in
his criminal case. He asked for a conviction reduction based on rehabilitation, which, per
Pickering is not valid for immigration purposes. The issue in this case-whether or not the
respondent's convictions are aggravated felonies-does not hinge on the category of conviction
(A or B misdemeanor) but rather the length of sentence. While sentence reductions are valid for
immigration purposes no matter the reason they are given, the state court in this case did not
reduce the respondent's sentence. The state court merely changed the respondent's conviction
from a class A misdemeanor to a B misdemeanor.
The Court is unpersuaded by the respondenfs argument that his sentence of 365 days is
"legally impossible" in that conviction and sentence reductions are inherently legal fictions.
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Pickering, when modifying the level of conviction (or vacating the conviction entirely), a

Often, when a defendant receives a post-conviction reduction, he ,,vii i already have served more
time than the new reduced sentence or the corresponding sentence. The seemingly incongruous
sentence length in this case is not "a legal impossibility," as it results from the legal fiction of
A con-esponding sentence i s not automatically reduced when the class or type_ of the
conviction is reduced-as evidenced by the fact that the two types of reductions are treated
differently in immigration Jaw. If the state court had agreed to reduce the respondent's sentence,
it would have done so; but it did not. Therefore, the Court finds that the respondent's convictions
for Wrongful Appropriation, and corresponding 365-day sentence, quali fy as aggravated felonies
for immigration purposes and serves as grounds for his removabi lity.

V.

CONCLUSION
The Court finds that the sentence imposed on the respondent for his convictions for

Wrongful Appropriation was not automaticall y reduced when his convictions were reduced from
c lass A misdemeanors to class B misdemeanors. As such, the respondent was convicted of theft
crimes for which the term of imprisonment is a year or more, which are aggravated felonies and
serve as grounds for the respondent's removal. The respondent's motion to terminate is denied.
The respondent has not applied for any form of relief.
Accordingly, the following orders are entered:

VI.

ORDERS

IT IS HEREBY ORDERED: Respondent is ordered REMOVED from the United States to

Mexico, pursuant to the charge in the NTA.
Respondent has reserved appeal. The Department has waived appeal. A Notice of Appeal (Form
EOIR-26) must be received by the Board within 3 0 calendar days o he entry of this order.

JU.1 1 5 " 15
-CJ

Date Signed

DA YID ANDERSON
Immigration Judge

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE (P
/REP DHS
TO: ( ) ALIEN ( ) ALIEN C/0 CUSTODIAL OFFICER (r0\ALIEN ' S A
BY:
COURT
DATE:
STAFF______::..,L.I.--6 15 -/5"
HER
ATTACHMENTS: ( ) EOIR-33 ( ) EOIR-28 ( ) LEGAL SERVICES ST )
A: 044-108-993

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reductions.