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Wellington v. Holder, No. 09-4111

By FindLaw Staff on October 20, 2010 1:24 PM

Petition for Review of Denial of Cancellation of Removal Denied

In Wellington v. Holder, No. 09-4111, a petition for review of the BIA's decision dismissing petitioner's appeal from the denial of her application for cancellation of removal, the court denied the petition where a Certificate of Relief or similar state rehabilitative treatment did not preclude use of the underlying offense as a basis for removal under 8 U.S.C. section 1182(a)(2)(A)(i)(II) or as a basis for ineligibility for cancellation of removal under 8 U.S.C. section 1229b(b)(1), unless the relief was related to a procedural or substantive defect in the criminal proceedings.

 

As the court wrote:  "Maxine Elizabeth Wellington ("petitioner" or "Wellington") petitions for review of a final order of removal entered by the Board of Immigration Appeals ("BIA") on September 14, 2009. Wellington argues that the BIA erred in finding her "convicted" of an offense under 8 U.S.C. § 1182(a)(2)(A)(i)(II)1 and ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). She claims that she has not been "convicted" within the meaning of § 1182(a)(2)(A)(i)(II) because she received a Certificate of Relief from Disabilities ("Certificate of Relief") from the New York court with jurisdiction over her 1995 conviction for drug possession, and because she would have qualified for relief under the Federal First Offender Act had she been prosecuted in federal court. Wellington also argues that the BIA erred in declining to address the question of whether she had accrued 10 years of continuous physical presence for purposes of cancellation of removal under § 1229b(b)(1)."

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