DE JESUS PLATON

Cite as 29 I&N Dec. 7 (BIA 2025) Interim Decision #4086

Matter of Leobardo DE JESUS-PLATON, Respondent

Decided by Board January 17, 2025 1

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The evidence of post-conviction relief under section 1473.7 of the California Penal Code

that the respondent submitted in support of his motion to remand does not demonstrate that

his conviction was vacated for a procedural or substantive defect in the underlying criminal

proceedings and not for reasons of rehabilitation or immigration hardship.

FOR THE RESPONDENT: Arnold S. Jaffe, Esquire, Santa Barbara, California

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge,

CREPPY and CLARK, Appellate Immigration Judges.

CREPPY, Appellate Immigration Judge:

The respondent, a native and citizen of Mexico, appeals the Immigration

Judge’s decision dated December 19, 2019, which found that the respondent

was ineligible for cancellation of removal for having been convicted of a

crime involving moral turpitude (“CIMT”). Section 240A(b)(l)(C) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(l)(C) (2018).

While the appeal was pending with the Board, the respondent submitted a

supplementary filing showing that his sole conviction had been vacated

under section 1473.7 of the California Penal Code and requesting a remand. 2

The Department of Homeland Security (“DHS”) did not file a response brief.

The respondent’s motion to remand will be denied and the appeal will be

dismissed.

Initially, the Immigration Judge determined that the respondent’s 2012

California conviction for making criminal threats in violation of section 422

of the California Penal Code is a CIMT for which a 1-year sentence may be

imposed and made the respondent ineligible for cancellation of removal. See

1

Pursuant to Order No. 6186-2025, dated January 31, 2025, the Acting Attorney General

designated the Board’s decision in Matter of De Jesus-Platon (BIA Jan. 17, 2025), as

precedent in all proceedings involving the same issue or issues. See 8 C.F.R.

§ 1003.1(g)(3) (2025). Editorial changes have been made consistent with the designation

of the case as a precedent.

2

The motion to accept a supplemental brief will be granted.

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Cite as 29 I&N Dec. 7 (BIA 2025) Interim Decision #4086

Latter-Singh v. Holder, 668 F.3d 1156, 1163 (9th Cir. 2012); see also INA

§ 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2018). The Board

affirmed the decision of the Immigration Judge, and the respondent filed a

petition for review with the United States Court of Appeals for the Ninth

Circuit. The Ninth Circuit issued a remand order based on a change in law

under section 18.5 of the California Penal Code, which changed the

maximum penalty in the State of California for county jail confinement not

to exceed 364 days. The Board in turn remanded to the Immigration Court

to determine the respondent’s eligibility for cancellation of removal in light

of the change in California law.

After the Board’s remand, the Board published Matter of Velasquez-Rios,

which held that the amendment to section 18.5 of the California Penal Code

did not affect the applicability of section 237(a)(2)(A)(i)(II) of the INA,

8 U.S.C. § 1227(a)(2)(A)(i)(II), to a conviction for a CIMT for which a

sentence of 1 year or longer may be imposed. 27 I&N Dec. 470, 473

(BIA 2018), aff’d, 988 F.3d 1081 (9th Cir. 2021). On December 19, 2019,

the Immigration Judge issued a new decision holding that the respondent

remained ineligible for cancellation of removal. The respondent appealed

the decision of the Immigration Judge and filed a brief with the Board

challenging the applicability of Matter of Velasquez-Rios to his case. We

review these legal issues de novo. 8 C.F.R. § 1003.1(d)(3)(ii).

We affirm the Immigration Judge’s decision based on Matter of

Velasquez-Rios, 27 I&N Dec. at 473, determining that section 18.5 of the

California Penal Code does not make the respondent eligible for cancellation

of removal. As found by the Immigration Judge, the maximum possible

sentence the respondent could have received for his offense at the time of his

conviction was imprisonment for 1 year. Thus, under section

237(a)(2)(A)(i)(II) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i)(II), which calls

for “a backward-looking inquiry into the maximum possible sentence” for

the respondent’s conviction, the respondent has been convicted of a CIMT

for which a sentence of 1 year or longer could have been imposed at the time

of his conviction. Matter of Velasquez-Rios, 27 I&N Dec. at 472. We

recognize the amendments to section 18.5 of the California Penal Code,

which apply the law retroactively to convictions in California, but those

amendments do not affect the applicability of section 237(a)(2)(A)(i)(II) of

the INA. We therefore conclude that the respondent remains ineligible for

cancellation of removal for having been convicted of a CIMT with a

maximum possible sentence of 1 year or longer.

The respondent argues that Matter of Velasquez-Rios violates the Tenth

Amendment to the United States Constitution as well as principles of

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federalism. The United States Court of Appeals for the Ninth Circuit has

concluded that Matter of Velasquez-Rios does not violate the Tenth

Amendment and does not impermissibly interfere with State authority. See

Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1089 (9th Cir. 2021) (affirming

Matter of Velasquez-Rios and holding that the amendments to section 18.5

of the California Penal Code do not apply retroactively for purposes of

section 237(a)(2)(A)(i)(II) of the INA). The Ninth Circuit affirmed that the

Federal government maintains primacy over immigration law and that

Federal immigration law “cannot be altered or contradicted retroactively by

state law actions.” Id. We agree that Matter of Velasquez-Rios does not

impermissibly interfere with a State’s right to define their criminal law

jurisprudence.

The respondent further argues that Matter of Velasquez-Rios preempts

State law authority. However, as determined by the court in Velasquez-Rios

v. Wilkinson, there is no issue of preemption because Matter of

Velasquez-Rios “presents no conflict between state and federal law.” 988

F.3d at 1088. Matter of Velasquez-Rios “has no bearing on whether

California may, for purposes of its own state law, retroactively reduce the

maximum sentence available for misdemeanor convictions.” Id. We thus

conclude that Matter of Velasquez-Rios presents no preemption issue relative

to the California statute.

The respondent argues that Matter of Velasquez-Rios is inconsistent with

Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005), and Matter of Song,

23 I&N Dec. 173 (BIA 2001). Those cases, however, involved nunc pro tunc

sentence modifications from a State court, which is not at issue in the instant

case. See Velasquez-Rios, 988 F.3d at 1088. Additionally, those cases were

overruled by the Attorney General. See Matter of Thomas and Thompson,

27 I&N Dec. 674, 686 (A.G. 2019) (explaining that full faith and credit

principles were not implicated in vacated conviction cases because an

Immigration Judge is interpreting the definition of “conviction” under the

INA, not “reevaluating or otherwise questioning the validity of the

state-court judgment.”).

The respondent also argues that the Board’s reliance on McNeill v.

United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968

(9th Cir. 2016), is misplaced. In Velasquez-Rios v. Wilkinson, the court

recognized that these cases were not directly controlling because they dealt

with criminal sentencing statutes. 988 F.3d at 1087. Nevertheless, the court

found the reasoning in those cases persuasive. Id. at 1086–87. We find the

respondent’s argument that these cases are inapposite for the instant case to

be unavailing.

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The respondent argues that Latter-Singh v. Holder, 668 F.3d at 1163, is

no longer controlling authority and that his conviction is not categorically for

a CIMT. We disagree. We find that the court’s decision in Latter-Singh,

which concluded that section 422 of the California Penal Code was a CIMT,

to be controlling authority in the Ninth Circuit. In Flores-Vasquez v.

Garland, the court explained that section 422 was categorically a CIMT

because it requires both an evil or malicious intent and the infliction of actual

substantial harm on another. 80 F.4th 921, 928 (9th Cir. 2023) (citing

Latter-Singh, 668 F.3d at 1162). The respondent does not meaningfully

distinguish his case from Latter-Singh. We affirm that the respondent’s

conviction is for a CIMT.

The respondent further argues that he did not have a conviction prior to

the enactment of section 18.5 of the California Penal Code because his

sentence was not completed at that time. Neither the Board nor the INA

requires that an individual have completed their criminal sentence before he

can be considered to have been convicted of a crime. See INA

§ 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (2018); Matter of S. Wong,

28 I&N Dec. 518, 520 (BIA 2022), aff’d, Wong v. Garland, 95 F.4th 82

(2024), vacated by No. 24-92, 2024 WL 4654950 (Nov. 4, 2024); Matter of

J. M. Acosta, 27 I&N Dec. 420, 432 (BIA 2018); Matter of Punu, 22 I&N

Dec. 224, 225–27 (BIA 1998);. We further conclude that the fact that the

respondent was convicted for a CIMT more than 16 years after entering the

United States does not affect his eligibility for cancellation of removal. See

Matter of Ortega-Lopez, 27 I&N Dec. 382, 398 (BIA 2018) (holding that an

applicant is ineligible for cancellation of removal if the applicant has been

convicted of a CIMT for which a sentence of 1 year or more may be imposed,

regardless of whether the applicant meets the immigration prerequisites for

inadmissibility or deportability).

During the pendency of the respondent’s appeal, the State court granted

the respondent’s petition for post-conviction relief pursuant to

sections 1016.5 and 1473.7 of the California Penal Code and permitted the

respondent to withdraw his guilty plea to the sole conviction making him

ineligible for cancellation of removal. Controlling precedent in this

jurisdiction holds that section 1473.7(a)(1) “provides a vehicle to vacate a

conviction to address a substantive or procedural error that renders a

conviction ‘legally invalid’ [and] does not permit a state court to vacate a

conviction to alleviate any immigration consequences arising from the

conviction or sentence.” Bent v. Garland, 115 F.4th 934, 940 (9th Cir. 2024)

(emphasis omitted). The respondent’s new evidence in support of a remand,

however, states that his conviction was vacated pursuant to section 1473.7

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generally and not subsection 1473.7(a)(1) specifically. 3 The new evidence

submitted by the respondent does not show specifically which statutory

subsection applies to the respondent’s case.

We consider the respondent’s new evidence of post-conviction relief in

support of a remand under the standard for motions to reopen. See Matter of

Coelho, 20 I&N Dec. 464, 471 (BIA 1992) (applying the standards for

motions to reopen to motions to remand). We determine that the

respondent’s new evidence is material and was previously unavailable.

8 C.F.R. § 1003.2(c)(1) (2025). However, because the respondent’s new

evidence did not establish the statutory subsection applicable to the vacatur

in his case, we conclude that the respondent did not meet his burden for

showing prima facie eligibility for cancellation of removal. See Matter of

Azrag, 28 I&N Dec. 784, 787 (BIA 2024); Matter of Chavez, 24 I&N Dec.

272, 274 (BIA 2007); Matter of L-O-G-, 21 I&N Dec. 413, 420 (BIA 1996)

(discussing the standard for a prima facie showing); see also Pereida v.

Wilkinson, 592 U.S. 224, 233 (2021) (holding that a respondent has the

burden of showing that he has not been convicted of a disqualifying crime).

Here, the respondent does not submit the motion for vacatur or other

evidence that may reflect the applicable statutory subsection and underlying

reasoning. See Matter of Dingus, 28 I&N Dec. 529, 536 (BIA 2022).

The respondent’s evidence does not demonstrate that his conviction was

vacated for a procedural or substantive defect in the underlying criminal

proceedings and not for reasons of rehabilitation or immigration hardship.

See Matter of Thomas and Thompson, 27 I&N Dec. 674, 689–90 (BIA 2019);

Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003), rev’d on other

grounds by 465 F.3d 263 (6th Cir. 2006); cf. Nath v. Gonzales, 467 F.3d 1185

(9th Cir. 2006) (holding that the government bears the burden in the context

3

Section 1473.7 of the California Penal Code provides three reasons for vacatur:

(a) A person who is no longer in criminal custody may file a motion to vacate a

conviction or sentence for any of the following reasons:

(1) The conviction or sentence is legally invalid due to prejudicial error damaging

the moving party’s ability to meaningfully understand, defend against, or

knowingly accept the actual or potential adverse immigration consequences of a

conviction or sentence. A finding of legal invalidity may, but need not, include a

finding of ineffective assistance of counsel.

(2) Newly discovered evidence of actual innocence exists that requires vacation

of the conviction or sentence as a matter of law or in the interests of justice.

(3) A conviction or sentence was sought, obtained, or imposed on the basis of race,

ethnicity, or national origin in violation of subdivision (a) of Section 745.

Cal. Penal Code § 1473.7 (2025).

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of removability). We thus decline to remand the respondent’s case on this

basis.

ORDER: The respondent’s appeal is dismissed.

FURTHER ORDER: The respondent’s motion for a remand is denied.

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