Immigration Appeals Decisions

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: NABELLA ALECTUS, BENEFICIARY OF A VISA PETITION FILED BY ELIFAITE ALECTUS, PETITIONER
File: A089 993 879 – California Service Center

October 29, 2009

IN VISA PETITION PROCEEDINGS

APPEAL

ON BEHALF OF PETITIONER: Pro se

ON BEHALF OF DHS:
Vanita Cheung
Assistant Chief Counsel

ORDER:
The petitioner appeals from the California Service Center (CSC) Director’s denial of the visa petition. On appeal, counsel for the Department of Homeland Security (DHS) has requested that the matter be remanded to the Director for further consideration. Accordingly, the decision of the Director denying the visa petition is vacated. It is ordered that this matter be remanded to the Director for further consideration and the entry of a new decision.

Ana L. Mann
FOR THE BOARD

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: GERDA LAFERIER, BENEFICIARY OF A VISA PETITION FILED BY JEANNETTE OCCEAN, PETITIONER
File: A089 266 745 – Vermont Service Center

October 29, 2009

IN VISA PETITION PROCEEDINGS

APPEAL

ON BEHALF OF PETITIONER: Pro se

ON BEHALF OF DHS:
Mary H. Burford
Office of the Chief Counsel

APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa
The United States citizen petitioner has appealed from the February 15, 2008, decision by the Vermont Service Center Director (“Director”) of the United States Citizenship and Immigration Services of the Department of Homeland Security (“DHS”). In that decision, the Director denied the visa petition filed by the petitioner on behalf of the beneficiary as her sister under section 203(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(4). The petitioner appealed from that decision. The appeal will be dismissed.

In a notice dated August 23, 2007, the Director instructed the petitioner to submit additional evidence in support of the visa petition, detailing the forms of evidence that might be acceptable.

We find that the Director correctly determined that the petitioner failed to respond adequately to the request for additional evidence in the aforementioned notice and thus failed to establish the claimed relationship between herself and the beneficiary.

The visa petition reflects that it was filed on May 31, 2007, and that the beneficiary was born on December 2, 1950.

The August 2007 notice noted that the petitioner had filed visa petitions for this beneficiary, Gerda Laferier, and for two other beneficiaries, Gertrude Laferiere and Junior Menos Laferiere. The notice further pointed out that, with the visa petitions for Gerda Laferier and Gertrude Laferiere, the petitioner had submitted birth certificates showing that the two women were born to the same mother only 3 months apart. The birth certificate for Gertrude Laferiere lists her birth date as March 6, 1951. Further, the father’s name was listed as “Justin Laferier” on the translated birth certificate for Gerda but as “Justin Laferiere” on the birth certificate for Gertrude. The notice therefore asked the petitioner to explain both the apparent contradiction in the birth dates and the discrepant spelling of the father’s last name.

In responding to the notice on October 22, 2007, the petitioner failed to provide the requested explanations and submitted only another birth certificate for the present beneficiary, for which the spelling of the father’s surname in the English translation has been changed to “Laferiere.”

We agree with the Director that the petitioner did not submit sufficient documentation to demonstrate compliance with the statutory and regulatory requirements pertaining to the alleged sibling relationship, in response to the August 2007 notice. On appeal, the petitioner has submitted yet another copy of the translated birth certificate for the beneficiary showing the father’s last name as “Laferiere,” but she still has not provided the requested explanations regarding the birth certificates’ inconsistencies, as discussed in the notice. We observe that the unexplained inconsistencies cast doubt upon the authenticity of the beneficiary’s birth certificate and diminish its probative value. Consequently, the evidence proffered by the petitioner is insufficient to establish that she and the beneficiary share a common mother.

The petitioner may, of course, file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is entitled to the status sought, that of her sister, under the immigration laws.

Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

Frederick D. Hess
FOR THE BOARD

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: IBRAGIM URUSOV
File: A097 702 451 – Baltimore, MD

October 29, 2009

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:
Lena Nevsky, Esquire

ON BEHALF OF DHS:
Kellie Santos-DeJesus
Assistant Chief Counsel

APPLICATION: Reopening
This matter was last before the Board on June 11, 2008, when we dismissed the respondent’s appeal from the Immigration Judge’s denial of his motion to reopen and rescind the in absentia order of removal that was entered on February 28, 2007. The respondent has now filed a second motion to reopen, in which he alleges, for the first time, that his prior attorney submitted a falsified motion to reopen alleging a lack of notice of the proceedings, whereas the real reason that the respondent was not present when his case was called on February 28, 2007, is that he had arrived 1/2-hour late for his scheduled 8:00 a.m. hearing. He submits an affidavit stating that he arrived at 8:30 a.m. and sat in the courtroom for approximately an hour while court was still in session, and only afterwards was told that his case had been called earlier and that an in absentia order had been entered against him ( Motion, Exh. A). The Department of Homeland Security opposes the motion. The record will be remanded.

Although the present motion has been properly filed with the Board, since the Board entered the last decision in this case, we find it appropriate to remand this motion to the Immigration Court for adjudication, as the adjudication of the motion involves the resolution of various factual issues that are best addressed by the Immigration Judge in the first instance. The respondent urges that equitable tolling of the motions time and number limits is warranted, because his attorney did not inform him of the nature of the first motion he filed, made false claims in that motion, and did not inform the respondent of the Board’s June 2008 decision, despite the respondent’s numerous efforts to obtain that information from him. Matter of Lozada, 19 I&N Dec. 637 (Bia 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). The respondent urges that his initial motion, which was filed within 30 days of the in absentia order, would have been approved if the correct facts had been presented to the Immigration Judge.

In addition, although the United States Court of Appeals for the Fourth Circuit has not ruled on the issue of whether an alien who appears late for a hearing while the court is still in session has failed to appear, a number of Circuits have ruled or indicated that a late appearance under those circumstances will not generally be considered a failure to appear that is subject to a showing of exceptional circumstances for the failure to appear. See, e.g., Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003); Abu Hasirah v. Dept of Homeland Security, 478 F.3d 474 (2d Cir. 2007); Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005); Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008); Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999). Thus, the factual question of whether the respondent was present in the courtroom at the Immigration Court on the date of his scheduled hearing while the Immigration Judge was still on the bench may be a crucial factual issue to decide before determining the standard that will apply for reopening his case. Accordingly, the record will be remanded for adjudication of the motion to reopen, and the automatic stay that applies to motions to reopen in absentia removal orders will apply to that pending motion. 8 C.F.R. § 1003.23(b)(4)(ii).

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.

Frederick D. Hess
FOR THE BOARD

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: FRANCIS KWAME TANDOH, BENEFICIARY OF A VISA PETITION FILED BY ALEXIS DE ANNE FUDGE, PETITIONER
File: A099 144 289 – Columbus, OH

October 29, 2009

IN VISA PETITION PROCEEDINGS

APPEAL

ON BEHALF OF PETITIONER:
James Ddumba, Esquire

ON BEHALF OF DHS:
Betty J. Konen
Associate Regional Counsel

APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa
The petitioner has appealed from the decision of the Field Office Director of the Department of Homeland Security (DHS) dated January 22, 2009, denying the visa petition that was submitted on behalf of the beneficiary, the petitioner’s spouse.

In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove the required elements by a preponderance of the evidence. See Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989).

Where the bona fides of a marriage are challenged, the petitioner must present documentary or testimonial evidence to show that it was not entered into for the primary purpose of evading the immigration laws. [FN1] See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). However, we note that the failure to produce affirmative evidence of the bona fides of the marriage, by itself, is not sufficient to establish that the marriage is a sham marriage. Compare 8 C.F.R. § 204.2(a)(1)(iii)(B), (D) with 8 C.F.R. § 204.2(a)(1)(ii).

The parties were married on December 31, 2007. The visa petition was filed on March 4, 2008. The Department of Homeland Security Citizenship and Immigration Services (USCIS), held separate interviews of the petitioner and the beneficiary on December 1, 2008, to determine the bona fides of the marriage. See Lutwak v. United States, 344 U.S. 604 (1953); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of McKee, 17 I&N Dec. 332 (BIA 1980). Notes from the interview are in the record of proceedings. See 8 C.F.R. § 204.2(a)(1)(ii).

Before a decision denying a visa petition can be issued, a notice of the Director’s intent to deny the visa petition (NOID) must be sent to the petitioner explaining the reasons for the denial, along with copies of all documents that contain derogatory information. The petitioner must be afforded an opportunity to review all derogatory information and documents considered by the Director. In addition, the petitioner must be afforded an opportunity to rebut the derogatory evidence and to present evidence in support of the visa petition prior to the issuance of the adverse decision. See 8 C.FR. § 103.2(b)(16)(i), (ii); Matter of Cuello, 20 I&N Dec. 94, 96-98 (BIA 1989); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988).

The Director sent a NOID to the petitioner on December 2, 2008, identifying some discrepancies from the interview. The petitioner responded to the NOID on December 31, 2008, providing explanations for the discrepancies. On January 22, 2009, the Director denied the visa petition, concluding that the petitioner failed to prove the existence of a bona fide marital relationship.

During the interviews, there were inconsistencies between the answers of the petitioner and the beneficiary. For example, the petitioner said the beneficiary has never met her aunt, while the beneficiary said that he has. The petitioner said that, before the parties began living together in 2008, the beneficiary lived with an uncle in Virginia. However, the beneficiary said he had lived with a friend and did not consider that person to be an uncle, but did consider him to be his best friend. The petitioner said that, about a month before the interview, the beneficiary had driven alone to Virginia using Eric’s car. However, the beneficiary said that he went with Eric, who had driven, because the beneficiary does not have a license. The petitioner was unaware that beneficiary’s father has been deceased for over 5 years. In addition, it is noted that there is a 17-year age difference between the parties, they had only met each other 6-7 times from their first meeting to the day they married, only two people (the beneficiary’s associates) attended the marriage ceremony, and the beneficiary has not met any of the petitioner’s family members.

The petitioner has failed to adequately explain these discrepancies or address these concerns. Though the petitioner has offered some documentary evidence of the bona fides of the marriage, this evidence does not overcome the concerns raised by the interview answers. Consequently, we concur that the petitioner has failed to prove the bona fides of the marriage.

The petitioner may, of course, file a new visa petition on the beneficiary’s behalf that is supported by competent evidence that the beneficiary is entitled to the status sought under the immigration laws.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Charles K. Adkins-Blanch
FOR THE BOARD

FN1. Evidence to establish the bona fides of a marriage includes proof of joint ownership of property, proof of joint tenancy of a common residence, proof of commingling of financial resources, birth certificates of children born of the petitioner and the beneficiary, and affidavits of others having knowledge of the bona fides of the marital relationship. See 8 C.F.R. § 204.2(a)(1)(iii)(B).

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: FRANCISCO ROMO BRITO, BENEFICIARY OF A VISA PETITION FILED BY SHEABER HARIEL, PETITIONER
File: A099 306 674 – New York, NY

October 29, 2009

IN VISA PETITION PROCEEDINGS

APPEAL

ON BEHALF OF PETITIONER:
Reverend John J. Garkowski, Esquire

ON BEHALF OF DHS:
Jason Raphael
Associate Regional Counsel

APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa
The petitioner appeals from the February 11, 2008, decision of the District Director for the Department of Homeland Security, Citizenship and Immigration Services (“DHS”), denying the petition filed on behalf of the beneficiary as the spouse of a United States citizen. The appeal will be dismissed.

The petitioner bears the burden of establishing the beneficiary’s eligibility for benefits in this matter. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). We agree with the District Director that the petitioner failed to meet his burden of proof due to the numerous discrepancies that arose at the interview which are material to the petitioner’s shared life with the beneficiary. The general claim on appeal that the discrepancies are minor or have been adequately explained is not supported by the record of the interview. Therefore, the decision of the District Director is affirmed pursuant to this Board’s authority under 8 C.F.R. § 1003.1(e)(5).

The petitioner submits additional documentary evidence on appeal. However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, this Board will not accept evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The petitioner may file a new visa petition on the beneficiary’s behalf that is supported by consistent and reliable evidence that the petitioner’s marriage to the beneficiary is bona fide and has not been entered into for the sole purpose of procuring an immigration benefit for the beneficiary. The following order will be entered.

ORDER: The appeal is dismissed.

Frederick D. Hess
FOR THE BOARD

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: NOORIA GARDIZY
File: A028 962 322 – San Francisco, CA

October 29, 2009

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:
Frank P. Sprouls, Esquire

APPLICATION: Reopening

ORDER:
The respondent is a native and citizen of Afghanistan. She has resided in the United States since the 1980s and was a lawful permanent resident for many years. On March 17, 2004, the Immigration Judge pretermitted the respondent’s application for cancellation of removal and ordered her removed based on two theft convictions. On January 24, 2005, the Board issued its final administrative decision in this proceeding.

On December 2, 2005, the Board denied a motion to reopen, which was based on ineffective assistance of counsel, as well as changed country conditions. On May 20, 2009, the Ninth Circuit denied in part and granted in part the petition for review with respect to the motion, and remanded the record for further proceedings related to the respondent’s arguments involving changed country conditions. Gardizy v. Holder, No. 05-76969, 2009 WL 1396834 (9^th Cir. May 20, 2009). [FN1]

On August 27, 2009, the respondent filed another motion to reopen. The respondent argues, inter alia, that she still has a well-founded fear of future persecution based on her gender. In support of her motion, she has attached additional background information on the treatment of women in Afghanistan.

The most recent motion, as well as the motion we must reconsider on remand, are clearly untimely. 8 C.F.R. § 1003.2(c). However, the time and number limitations do not apply to a motion to reopen based on changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii)(time and number limits do not apply to motions to reopen “[t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality … if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”).

The motion will be granted. The respondent has not demonstrated changed country conditions or circumstances since the time of her 2004 hearing before the Immigration Judge with respect to the treatment of women in Afghanistan. However, after residing in the United States for so many years, a large part of the time as a lawful permanent resident, it appears that the respondent has adopted Western styles and attitudes. Further, according to her cancellation of removal application, she was divorced in the United States, and has several United States citizen children. Such changes may result in much worse circumstances for the respondent if she returns to Afghanistan. Further, she may have a claim of a well-founded fear of persecution on account of the fact that she is a woman who has adopted Western customs (a political statement). Accordingly, the motion to reopen is granted and the record remanded for further proceedings in accordance with this decision, including any available relief.

Frederick D. Hess
FOR THE BOARD

FN1. We note that the Ninth Circuit expressed serious concerns about current counsel’s representation. On remand, the Immigration Judge may wish to address these issues directly with the respondent so that she understands the significance of the problems.

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: BILLIE NOBLE LOBAHANOW A.K.A. OMAR ABDI ROBLE
File: A024 882 353 – Bloomington, MN [FN1]

October 29, 2009

IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:
William Ford, Esquire

ON BEHALF OF DHS:
Darrin E. Hetfield
Assistant Chief Counsel

APPLICATION: Custody redetermination
The respondent has appealed the July 9, 2009, decision of an Immigration Judge denying the respondent’s request for custody redetermination. The appeal will be dismissed.

The respondent is charged as an alien in removal proceedings under section 237(a)(2)(A)(iii) of the Act based upon his February 26, 1991, conviction in the Superior Court of California, Santa Barbara County, for the offense of Sale or Transportation of a Controlled substance, namely cocaine, in violation of California Health and Safety Code section 11352(a). The DHS charged the respondent as subject to removal under section 237(a)(2)(A)(iii) for committing an aggravated felony as defined in section 101(a)(43)(B) of the Act.

This Board held in Matter of Joseph II, 22 I&N Dec. 799 (BIA 1999), that for purposes of determining the custody conditions of a lawful permanent resident under section 236 of the Act, a lawful permanent resident will not be considered properly included in a mandatory detention category when an Immigration Judge or this Board finds that it is substantially unlikely that the DHS will prevail on a charge of removability specified in section 236(c) of the Act. In this case, the record does not support a finding that it is substantially unlikely that the DHS will prevail on appeal regarding the charge of removal.

The respondent is subject to mandatory detention provisions contained in section 236(c)(1) if he was convicted of an “aggravated felony” or convicted of an offense resulting in a specifically enumerated removal charge, and was released from criminal custody, after the expiration of the Transition Period Custody Rules (TPCR) on October 8, 1998. See Matter of West, 22 I&N Dec. 1405 (BIA 2000). As noted previously, the respondent has been convicted of conduct that falls within the definition of an “aggravated felony.” The record further establishes that the respondent was released from criminal custody after October 8, 1998, as a result of his conviction in the Hennepin County District Court at Minneapolis, Minnesota, on August 2, 2002, for the offense of Assault in violation of Minnesota Statute 609.224. he is subject to the mandatory detention provisions of section 236(c) of the Act. See Matter of West, supra; Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007). Accordingly, the Immigration Judge properly concluded that he lacks jurisdiction over the respondent’s custody redetermination.

ORDER: The appeal is dismissed.

John Guendelsberger
FOR THE BOARD

FN1. The bond memorandum inadvertently lists the hearing location of the Immigration Court as Bloomington, California, when it should read Bloomington, MN.

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: FLORENCE NJERI KINYA, BENEFICIARY OF A VISA PETITION FILED BY REGINALD TYRONE NEWBURN, PETITIONER
File: A075 533 715 – Los Angeles, CA

October 29, 2009

IN VISA PETITION PROCEEDINGS

APPEAL

ON BEHALF OF PETITIONER:
Ronald S. Sugarman, Esquire

ON BEHALF OF DHS:
Lucinda Love
Associate Regional Counsel

APPLICATION: Petition to classify status of alien relative for issuance of immigrant visa
In a decision dated February 19, 2009, the Field Office Director (“Director”) of the Department of Homeland Security (“DHS”) denied the visa petition filed by the United States citizen petitioner for the beneficiary as his wife under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1 151(b). The petitioner appealed from that decision. The record will be remanded.

In denying the petition in the February 2009 decision, the Director correctly determined that, since the parties’ marriage occurred while the beneficiary was in removal proceedings and since the beneficiary did not reside outside the United States for a two-year period beginning after the date of the marriage, the petitioner is required to demonstrate eligibility for the bona fide marriage exemption, and the “clear and convincing” evidentiary standard applies to this case. See sections 204(g) and 245(e)(2) and (3) of the Act, 8 U.S.C. §§ 1154(g) and 1255(e)(2) and (3); 8 C.F.R. §§ 204.2(a)(1)(iii) and 245.1(c)(8)(iv) (2009). The record reflects that the visa petition was filed on October 7, 2008; that the petitioner and beneficiary married in Santa Ana, California on April 25, 2006; and that the beneficiary was placed into removal proceedings on August 31, 1998. [FN1]

Next in the February 2009 decision, the Director stated that the petitioner failed to request a bona fide marriage exemption and failed to submit “clear and convincing” evidence that the parties’ marriage is bona fide. However, the record contains an October 2, 2008, request for a bona fide marriage exemption that was submitted by the petitioner with the visa petition, as the DHS acknowledges in its appellate response brief. Further, the record also contains both a Request for Evidence (“RFE”) that was sent to the petitioner by the DHS on November 12, 2008, and the petitioner’s December 9, 2008, response to the RFE. The RFE asked the petitioner to provide additional documents in support of the parties’ marital bona fides, specifying that such documents could include, but were not limited to, joint utility bills, joint property ownership documents, joint insurance documents, joint lease agreements, joint bank and credit account statements, and joint tax returns. With his response, the petitioner forwarded copies of joint utility bills, joint automobile insurance policy documents, a joint rental agreement, and affidavits.

We find that a remand is necessary in this case. The Director’s February 2009 decision does not discuss the petitioner’s October 2008 request for the bona fide marriage exemption, the DHS’s November 2008 RFE, or the petitioner’s December 2008 response to the RFE. The petitioner furnished documentation in support of his marital bona fides with his December 2008 response, and he is entitled to have his evidence evaluated fully. The documentary evidence, while probative, is not voluminous, and the petitioner should be given the opportunity to submit further evidence. Such evidence may include joint financial documents, affidavits, and testimony spanning all the years of the parties’ marriage. See Lutwak v. United States, 344 U.S. 604 (1953); Matter of Phillis, supra; 8 C.F.R. § 204.2 (2009). The parties now will have been married more than three years and will have had a more substantial period within which to accumulate evidence. On remand, both the petitioner and the DHS may submit any and all available relevant evidence. [FN2]

ORDER: The record is remanded to the DHS for further consideration and for the issuance of a new decision, consistent with this opinion.

Frederick D. Hess
FOR THE BOARD

FN1. The petitioner apparently was sent a copy of a February 19, 2009, denial decision pertaining to other parties. As the petitioner has noted, the copy that he received contains incorrect information in its first two paragraphs, with regard to the date and place of filing for the visa petition, the date and place of marriage for the parties, the date of initiation of the beneficiary’s removal proceedings, and the venue in the removal case. However, we find these errors to be harmless. The record contains a copy of the Director’s February 19, 2009, decision pertaining to the current petitioner and beneficiary, and the two denial decisions are identical except for the aforementioned information.

FN2. An earlier visa petition was filed by the petitioner under a different alien registration number for the beneficiary, A089 585 810, which petition was denied on January 18, 2007. In her removal proceedings, the beneficiary appealed to this Board from an Immigration Judge’s April 23, 2007, decision denying her motion to reopen concerning a July 12, 2002, removal order issued in absentia, and we reopened and remanded that removal case on March 21, 2008.

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

IN RE: CRUZ ANTONIO AMAYA GOMEZ A.K.A. CRUZ ANTONIO AMAYA A.K.A. CRUZ ANTONIO GOMEZ
File: A041 447 567 – Houston, TX

October 29, 2009

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:
David F. Ramirez, Jr., Esquire

In a decision dated July 16, 2009, an Immigration Judge found the respondent removable and ordered him removed from the United States to El Salvador.

The record reflects that the respondent waived appeal. He was represented by counsel at his removal hearing. The transcript of the hearing on July 16, 2009, includes the respondent’s testimony that he accepted the removal order and did not want to appeal with regard to any issue. See Tr. at 2-5. In addition, the Immigration Judge noted the appeal waiver at the bottom of his memorandum decision. The respondent filed a Notice of Appeal on August 14, 2009, and a brief on October 13, 2009. We find that the respondent has not made an effective argument that his decision to waive appeal was not a knowing and intelligent one, by means of his appellate contentions. Thus, the Immigration Judge’s decision became administratively final upon the respondent’s waiver of the right to appeal, and the Board lacks jurisdiction over the case. See Matter of Shih, 20 I&N Dec. 697 (BIA 1993). For these reasons, we will return the record to the Immigration Court without further action. [FN1]

ORDER: The record is returned to the Immigration Court without further Board action.

Roger A. Pauley
FOR THE BOARD

FN1. The record contains a copy of the June 12, 2009, decision by the District Director of the Department of Homeland Security (“DHS”), which denied the respondent’s application for a certificate of citizenship (Form N-600). Any appeal by the respondent from that decision should have been filed with the DHS.