Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
Stanton, James A., Esq. Stanton Law Group 900 Fort Street, Suite 1110 Honolulu, HI 96813
OHS/ICE Office of Chief Counsel - HON 595 Ala Moana Boulevard Honolulu, HI 96813-4999
A 087-081-219
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
DonrtL ct2tVL)
Donna Carr Chief Clerk
Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
Date:
AUG 0 5 2013
IN REMOVAL
PROCEEDINGS
APPEAL ON BEHALF OF RESPONDENT: James A Stanto Esquire ON BEHALF OF DHS: Chandu Latey Assistant Chief Counsel
CHARGE: Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law
-
Sec.
237(a)(3)(D), I&N Act [8 U.S.C. 1227(a)(3)(D)] False claim of United States citizenship (not sustained)
The respondent, a native and citizen of the Philippines, appeals the Immigration Judge's February 23, 2012, decision denying his application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). We will dismiss the appeal. We review for clear error the findings of t8ct, including the determination of credibility, made by the Immigration Judge. 8 C.F.R 1003.l(d)(J)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proo( and issues of discretion. 8 C.F.R 1003. I(d)(3)('ti). The respondent filed his application after May 11, 2005; therefore, the provisions of the REAL ID Act apply. Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006). The respondent concedes be checked the box on a Form 1-9 indicating be is a citizen or national of the United States. He claims he did so at the direction of a Human Resources employee. He testified that he assumed he must be considered a national of the United States since he was instructed to check that box. A Record of Sworn Statement indicates the respondent admitted to an immigration officer that he claimed to be a United States citizen (Exh. 8). The Immigration Judge did not credit the respondent's assertion that be informed the immigration officer that he checked the box because he was instructed to do so by a Human Resources employee, and that the immigration officer erred by not reflecting his explanation in the Record of Sworn Statement. The respondent initialed each statement in the Record of Sworn Statement and signed it, affirming its accuracy. He did so in the presence of his United States
Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
A087 081 219 citizen daughter and his lawyer, who both accompanied him to the interview with the immigration officer. The Immigration Judge relied on these factors when not crediting the respondent's assertion that the Record of Sworn Statement is inaccurate. The Immigration Judge's adverse credtl>ility finding is not clearly erroneous. The Immigration Judge is permitted to make reasonable inferences among the plausible possibilities in the record, and did so in this case. See Matter of D-R-, 25 l&N Dec. 445, 454 (BIA 2011) (drawing inferences from direct and circumstantial evidence is a routine and necessary task of any fact finder). The Immigration Judge reasonably found it implausible that the respondent would initial and sign the Record of Sworn Statement if it was inaccurate and that his lawyer would allow him to do so. The adverse credibility finding undermines the respondent's argument that the Record of Sworn Statement should not be evidence of his intent to claim citizenship, as opposed to nationality, at the time he filled out the Form 1-9. light of the evidence of record and the respondent's lack of credibility, we agree with the Immigration Judge that the respondent did not meet his burden of establishing he is admissible, which is a requirement for adjustment of status. See section 212(a)(6)(C)(tl) of the Act, 8 U.S.C. l 182(al<6)(C)(ii) (rendering inadmissible one who makes a false claim to United States citizenship). Accordingly, we will dismiss the appeal. The respondent provided evidence that he posted the required voluntary departure bond; therefo we will reinstate the grant of voluntary departure.
In
NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of I 0 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: Ifthe respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties
1 The DHS did not appeal the Immigration Judge's holding that it did not meet its burden of proving removability under section 237(a)(3)(D) of the Act.
Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
for failure to depart under section 240B(d) of the Act shall not apply. 1240.26(e)(l).
See 8 C.F.R.
WARNING: It: prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that . he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. 1240.26(i).
Cite as: Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013)
_,
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT HONOLULU, HAWAII
File:
A087-081-219
February 23,
2012
In the Matter of
) )
)
IN REMOVAL PROCEEDINGS
CHARGES:
Section 237{a) (1) {B) of the Immigration and Nationality Act; Section 237(a) (3) (D) of the Immigration and Nationality Act.
APPLICATIONS:
ON BEHALF OF RESPONDENT:
JAMES A.
STANTON
ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a is a native and citizen of
ritilippines.
ear-old,
The Department of
Homeland Security issued a Notice to Appear to the respondent on June 7, 2010. This Notice to Appear was filed with the 2010, vesting jurisdiction with
jurisdiction has not been contested in this matter. to Appear was marked as Exhibit 1. At a master calendar hearing, four factual allegations,
The Notice
the respondent conceded removability under Section 237(a) ( 1) (B) of the Immigration and Nationality Act, in that after admission of the Act, the
respondent had remained in the United States for a time longer than permitted, United.States. in violation of this Act or any other law of the The Department of Homeland Security, in support
The Department alleges that the respondent is not and is a native of that the
respondent was admitted to the United States at San Francisco, California, on or about July 2, 2003, as a non-immigrant H-lB,
with authorization to remain in the United States for a temporary period not to exceed November 1, 2003; and that the
respondent remained in the United States beyond November 1, 2003, without authorization from the Immigration and the Department of
The Notice to Appear further alleges that on the respondent misrepresented himself to
be a citizen of the United States for purposes of gaining employment, by submitting a Form I-9, Employment Eligibility
A087-081-219
and attesting to be a citizen or national of the The Court did not rule on removability under the charge.
The Court took testimony from the respondent and his daughter, Exhibit 1, and considered the following evidence in the record. the Notice to Appear, dated June 7, 2010; Exhibit 2, a
2010; Exhibit 3,
decision on application for status as a permanent resident; Exhibit 4, a document entitled Motion to Reopen Removal Rescind In Absentia Order of Removal, Change Venue and
Proceedings,
to the Office of Immigration Court in Honolulu, Appear Telephonically; Exhibit 5, Court, venue;
Hawaii,
Exhibit;
Exhibit 8,
respondent's motion to dismiss charge 2 in 2010 Notice to Appear; Exhibit 10, Form I-
Respondent's
decision on application to register permanent residence. STATEMENT OF THE LAW Adjustment of status is available to an alien who (A) has been inspected and admitted or paroled into the United
A087-081-219
States;
if applicable,
is
(D} is admissible to the United States for See Section 24S(a} of the Act. As the
permanent residence.
adjustment of status is a discretionary form of relief, alien must also show he merits a favorable exercise of discretion. See Matter of Patel, 17 I&N Dec.
The respondent's case comes to the attention of the Department of Homeland Security during an interview in which the respondent identifies that he filled out a Form I-9 where he checked the first box of the Form I-9. The respondent is The
respondent attends this interview with his daughter and an attorney. As the testimony reflects, the respondent was engaged where the which
indicates that the person would be a citizen or national of the United States. The respondent testifies that as he was directed he thought that he may be a national
respondent also testifies that he was unaware that it would be illegal to claim to be a United States citizen. The respondent,
A087-081-219
February 23,
2012
and
The
Court has no reason to believe that the respondent does not have a thorough understanding and appreciation of English. The respondent was first employed in the United States in 1986. The respondent has testified that he had supervisor The respondent has had at
least three jobs in the United States that the Court is aware of. The respondent is confronted with a sworn statement that
was produced after an interview with an adjudications officer, in which the respondent initials and dates each line contained in the sworn statement. The respondent testifies that he knew but signed it and initialed and dated
the document because the person that asked him to do that was in a position of authority. dated this document, at the U. S. The respondent signed, initialed, and
Postal Service,
no one raised any issues r7lating to the information contained in the sworn statement varying from the information that the respondent provided during the course of the interview. The Court considered the respondent's argument, respondent cites memos within the Department of Homeland Security or Immigration and Naturalization Service, relating to as the
A087-081-219
'
sworn statements,
The Court did not find, that the respondent or that allegation
based upon the evidence that was presented, was removable as charged under 237(a}(3) (D},
s was factually accurate.
allegation 5 or the corresponding charge. The Court took testimony, as is consistent with the The Court had the The Court would find The
respondent articulates that he thought he was a U.S. national or that he could be a U.S. national, informed him to check the box, simply because someone
that he did so because that person was in a position of authority and he was an applicant for a job, that job. and that he wanted
The Court would find that the respondent did check What was unclear,
and the reason why the Court did not sustain the allegation and charge, was whether or not the respondent was making a false or whether or not he was
claim as a United States citizen, claiming to be a national. claiming to be a national, the relief sought.
In the event that the respondent was the respondent would be eligible for with the respondent's testimony it
However,
relating to his representations to the adjudicating officer, is clear the respondent provided testimony relating to a U. S. citizen issue, and not a U.S. national issue.
A087-081-2 19
this conclusion because the respondent attends his interview with his daughter and with an attorny, opportunity to review, evaluate, all of which had the report adversely, if
comment,
the adjudicating officer had performed or committed what would ultimately be fraud in their misrepresentation in memorializing the information that the respondent had testified to during the interview. The respondent has not filed a complaint against the The respondent's daughter, who is a U.S.
adjudicating officer.
the ability to file complaints against federal government employees, and the respondent's attorney, who was present during
and also present during the signing of the sworn according to the respondent, is materially
which,
different from that which he made representations to in this interview. The Court has not been provided with any
documentation relating to any complaints filed with the adjudications officer or the attorney that was appearing with the respondent. things. This case is recent in the grand scheme of 2009.
It is quite possible,
and maybe even probable (although the that the adjudicating officer is still
to establish that he did not present a false claim to obtain employment at Cadbury Schweppes.
A087-081-219
The Court,
as such,
would turn to whether or not the The Court would The Court
it should be denied.
would turn to whether or not the respondent be granted adjustment of status as a matter of discretion. The Court, in
evaluating the positive and the negative factors in the respondent's case, respondent not having any criminal record, The Court would also evaluate and
consider the fact that the respondent has a United States citizen daughter and six children in the United States. Court would find, representations, The
as a matter of discretion.
The Court turns to whether or not the respondent should be granted voluntary departure. The Court would find
that there are no statutory bars eliminating the respondent from eligibility for voluntary departure. The respondent has been in and does have children
request for voluntary departure over the Department of Homeland Security's objection, requiring that the respondent post a $500 and
requiring that the respondent depart the United States within 30 days of today's hearing. The departure date being March 26,
A087-081-219
20 12. ORDER IT IS THEREFORE ORDERED that the respondent's application for adjustment of status be denied; that the
A087-081-219
, ..
\.
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE C LARENCE M. WAGNER, in the matter of:
A087-081-219
HONOLULU,
HAWAII
is an accurate,
by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.
(Transcriber) Inc.
SERVICES, 2012
(Completion Date)