Bardavid, Joshua Elliot

Bardavid Law
277 Broadway, Suite 1501
New York, NY 10007
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pik, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - NYC
26 Federal Plaza, 11th Floor
New York, NY 10278
Name: AHMED, ABDUL HAKEIM THABET A 041-989-550
Date of this notice: 7/29/2014
Enclosed is a copy of te Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
|f t
Donna Carr
Chief Clerk
Trne
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Abdul Hakeim Thabet Ahmed, A041 989 550 (BIA July 29, 2014)
!
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A041 989550- New York, NY
In re: ABDUL HAKEIM THABET AHMED
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Joshua E. Bardavid, Esquire
ON BEHALF OF OHS:
CHARGE:
Adam P. Feller
Senior Attorey
JUL I1
Notice: Sec. 2 l 2(a)(7)(A)(i)(I), I&N Act [8 U .S.C. l l 82(a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document
Lodged: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)
] -
Present without being admitted or paroled
APPLICATION: Motion to terminate; waiver of documentary requirement
The Departent of Homeland Security ("OHS") timely appeals an Immigration Judge's
June 28, 2013, decision declining to sustain either gound of inadmissibility, granting the
respondent a waiver of the requirement that he obtain a passpor, immigration visa, reentry
permit or other documentation pursuant to section 21 l (b) of the Act, 8 U.S.C. 118l(b), and
ordering the respondent admitted to the United States as a lawfl peraent resident. The OHS
appeals, contesting each of these deterinations. The appeal will be dismissed.
Briefy, the respondent, a native and citizen of Yemen who was admitted to the United States
as a lawful permanent resident on January 20, 1990, lef the United States on or about August 6,
2009, and traveled to Yemen (l.J. at 2; Exh. 3, Tab D at 19). When he attempted to board a
connecting retur fight in Saudi Arabia on February 4, 2010, he was prevented fom boarding,
and thus returning to the United States, due to his inclusion on the Federal Bureau of
Investigation's "No Fly List" (l.J. at 2; Exh 3, Tab D at 19; Exh. 9). The respondent was
ultimately permitted to retur to the United States on October 19, 2010, fllowing legal action in
United States distrct court. When the respondent attempted to enter the United States at JFK
Airport on that date, he was interviewed by a Customs and Border Protection offcer, and was
served a Notice to Appear ("NT A") charging him as inadmissible as one not in possession of a
valid entr document pursuant to section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C.
l l 82(a)(7)(A)(i)(I) (Exh. 3, Tab C). This NT A alleged that the respondent had abandoned his
lawfl permanent resident status by remaining abroad fom July 2009 to October 2010, a period
in excess of 1 year (Exh. 3, Tab C). The respondent wrote a letter to the DHS assering that this
NT A should be withdrawn because the respondent was prevented fom retuing to the United
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Cite as: Abdul Hakeim Thabet Ahmed, A041 989 550 (BIA July 29, 2014)
A041 989 550
States within 180 days due to his erroneous inclusion on the "No Fly List" (Exh. 3, Tab 0 at
18-21 ). This Notice to Appear was not fled with the Immigration Court.
The OHS subsequently fled a superseding Notice to Appear on November 16, 2010,
charging the same ground of inadmissibility, which was fled with the Immigration Cour (Exh.
1 ). However, this NT A alleged that the respondent had abandoned his lawfl permanent resident
status when, on or about February 27, 2007, the respondent had retued to the United States
afer residing outside the United States fr a continuous period of longer than 1 year (Id.).
On May 23, 2012, the OHS lodged an additional chage of inadmissibility under section
212(a)(6)(C)(i) of the Act, 8 U.S.C. l 182(a)(6)(C)(i), assering that the respondent sought to
procure an immigration beneft by faud or material misrepresentation (Exh. IA). In suppor of
this additional charge, the OHS alleged that the respondent knowingly included false infrmation
in a Form N-400, Application fr Naturalization, which the respondent had submitted to the U.S.
Customs and Immigration Serices ("USCIS") on July 18, 2008. On March 25, 2013, the
respondent fled a motion to terminate proceedings, arguing not only that he is not inadmissible
as charged, but also alleging numerous egregious violations of his due process rights of such
severity that proceedings should be terminated.
In a decision dated June 28, 2013, the Immigration Judge denied the respondent's motion to
terminate, rejecting his various due process violation claims. In assessing the frst ground of
inadmissibility under section 2 l 2(a)(7)(A)(i)(I), the Immigration Judge fund that the respondent
was properly considered to be an arrving alien because he had admittedly been absent fom the
United States fr a continuous period in excess of 180 days during his 2006-2007 trip abroad (l.J.
at 9). Section 101(a)(13 )(C)(ii) of the Act, 8 U .S.C. 1101 (a)(l3 )(C)(ii). However, he fund
that the respondent qualifed as a returing resident despite the lack of a valid entry document, as
he had not abandoned his lawfl permanent resident status, and he granted a discretionary waiver
of the requirement that he present valid reenty documentation under section 211 (b) of the Act.
See, Matter of Rivens, 25 I&N Dec. 623 (BIA 2011); Matter of Huang, 19 I&N Dec. 749 (BIA
1988). Accordingly, the Immigration Judge did not sustain te frst chage of inadmissibility (I.J.
at 9-16).
In addition, the Immigration Judge fund that the record did not support the assertion that the
respondent had committed faud or wilflly misrepresented a material fct when he applied to
naturalize, such that the lodged charge of inadmissibility under section 2 l 2(a)(6)(A)(i) of the Act
could not be sustained (l.J. at 16-19). The OHS has timely appealed this decision.
On appeal, the OHS has submitted a very thorough brief, challenging the Immigation
Judge's determinations that the respondent did not abandon his lawfl permanent resident status,
that the respondent had not committed immigration faud, and that the respondent merited a
section 211 (b) waiver a a matter of discretion, as well as numerous sub-issues contained in each
of these determinations. In response, the respondent has submited a equally comprehensive
reply brief, refting each contention made by the OHS. Upon review, we fnd that the paies
have not raised any issues that were not comprehensively and, in our view, correctly addressed
by the Immigration Judge in his very detailed decision. The Immigration Judge's decision
contains extensive fndings of fct as well as detailed legal discussions and determinations which
address, in geat detail, the arguments by the paries. In short, we fnd no basis to disturb the
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Cite as: Abdul Hakeim Thabet Ahmed, A041 989 550 (BIA July 29, 2014)
A041 989 550
Immigration Judge's well-reasoned decision, ad we afrm his determinations therein, as well as
his ultimate conclusion to admit the respondent, fr the reasons provided in his decision (l.J. at
8-19). Given our resolution of the DHS's appeal in the respondent's fvor, we decline to address
the Immigration Judge's denial of the respondent's motion to terinate based on numerous
claims of due process violations, or the respondent's lenghy related arguments on appeal
(Respondent's Reply Brief at 57-73).
Accordingly, the fllowing order will be entered.
ORDER: The DHS's appeal is dismissed, and the respondent is ordered admitted to the
United States.
FO
R
BOAR <
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Cite as: Abdul Hakeim Thabet Ahmed, A041 989 550 (BIA July 29, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXCUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
26 FEDERAL PLAZA
NEW YOR, NEW YORK
File No.: A041-989-550
In the Matter of:
AHMED, Abdul Hakeim Tbabet,
Respondent.
CHARGES: INA 212(a)(6)(C)(i)
INA 212(a)(7)(A)(i)(I)
APPLICATIONS: 8 C.F.R. 1239.2(c)
INA 21 l(b)
ON BEHALF OF RESPONDENT
Joshua E. Bardavid, Esq.
351 Broadway, Third Floor
New York, NY 10013
N usrat Choudhury, Esq.
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
IN REMOVAL PROCEEDINGS
Fraud or willfl misrepresentation to obtain
an immigration beneft
Not in possession of a valid entry document
Motion to Terminate
Waiver fr documentary requirement
ON BEHALF OF DHS
Adam Feller, Senior Attorey
DHS/ICE, Offce of the Chief Counsel
26 Federal Plaza, Room 1130
New York, NY 10278
DECISION OF THE IMMIGRATION JUDGE
Abdul Hakeim Thabet Ahmed ("Respondent") was admitted to the United States ("U.S.")
as a lawfl permanent resident ("LPR") on January 20, 1990. He has taken several tips abroad
since his initial entry. The Department of Homeland Security ("DHS") argues that Respondent
is inadmissible because he abandoned his LPR status and atempted to procure an imigration
beneft by faud or material misrepresentation. For the reasons that fllow, te Court fnds that
DHS has failed to establish that Respondent is inadmissible under either charge. Therefre,
Respondent will be admitted to the U.S. as a reting LPR.
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I. PROCEDURL HISTORY


Respondent is a ffy-fve yea old native and citizen of Yemen. He acquired LPR stats
in 1990, through his fther, a naturalized U.S. citizen. [Exhs. 1; 3, Tab C]. In August 2009,
Respondent purchased a roundtrip ticket to Yemen. [Exh. 3, Tab D at 19]. He lef the U.S. on
August 6, 2009. Id. However, he was prevented fom returing to the U.S. when he atempted
to board his connecting fight in Saudi Arabia on February 4, 2010. See id. ; see also [Exh. 9 at
3]. He was infned that he had been placed on the Federal Bureau of Investigation ("FBI")
"No Fly List" and would not be permitted to board any commercial fight to te U.S.
1
[Exhs. 3,
Tab D at 19; 9 at 4-5].
On Augst 5, 2010, Respondent's counsel fled a lawsuit with the U.S. District Court fr
the District of Oregon, challenging the U.S. goverent's administration of the "No Fly List. "
See [Exh. 3, Tab D at 18-19]; see also Latif, I0Civ. 750. On August 16, 2010, his counsel fled
a motion fr a preliminary injunction requiring the U.S. goverent to allow Respondent to
retur to the U.S. [Exh. 3, Tab D at 19]. He was permited to retur on October 19, 2010.
[Exhs. I; 3, Tab D at 18-21].
On October 19, 2010, Respondent attempted to enter the U.S. at John F. Kennedy
International Airport ("JFK Airort") in New York, New York. He was stopped and interviewed
by a Customs and Border Protection ("CBP") ofcer, Joseph Taj es ("Ofcer Taj es"). [Exh. 2].
Afer the interview, Respondent was personally served wit a For 1-862, Notice to Appear
("NT A''), charging him as an arriving alien who was inadmissible under INA
212(a)(7)(A)(i)(I), in that he was not in possession of a valid entry document. [Exh. 3, Tab C].
DHS alleged that Respondent had abandoned his LPR status by remaining abroad fr more than
one year fom July 2009 until October 2010. Id. That NT A was never fled with the Court.
On November 15, 2010, Respondent sent a letter to DHS. Id., Tab D. He argued that
DHS should witdraw the NTA because the U.S. goverent had prevented him fom returing
to the U.S. within 180 days, as stipulated by the residency requirements fr LPRs, due to his
erroneous inclusion on the "No Fly List." Id. at 18-21; see also INA 10l(a)(l3)(C)(ii). On
November 16, 2010, DHS served a superseding NT A on Respondent and the Court, initiating
these removal proceedings. [Exh. l]. DHS lodged the same charge of inadmissibilit. Id.
However, in lieu of the fctual allegations included in the initial NT A, the superseding NTA
asserted that Respondent had abandoned his LPR status when, "on or about February 27, 2007,
Respondent had retued to the United States afer residing outside the United States fr a
continuous period of longer than one year." Id. At a master calendar hearing on Januar 5,
1 The Cour repeatedly asked fr evidence showing why Respondent was placed on the "No Fly
List" and considered whether he might be barred fr relief based on possible terrorist
involvement. DHS did not produce any evidence on this issue. The Court is limited to the
record befre it and does not draw ay negative infrence fom Respondent's inclusion on the
list.
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2011, Respondent conceded service of the NT A and admitted allegations one though three, but
denied allegations fur through six and the charge of inadmissibility. 2
On May 5, 2011, Respondent fled a motion to terminate these proceedings. In suppor of
his motion, he argued that DHS would be unable to show that he abadoned his status and that
OHS was "without legal authority to charge [him] as having abandoned his status." Mot. to
Terminate at 15. In an Order dated June 6, 2011, the Court denied the motion. The Cout
reasoned that DRS was entitled to have te opportunity to prove that Respondent abadoned his
status. Moreover, the Court was without jurisdiction to consider a challenge to DHS's decision
to commence removal proceedings, as it is a matter of prosecutorial discretion. 8 C.F.R.
1239. 1.
On May 23, 2012, DHS served Respondent with a Form I -261, Additional Charge of
lnadmissibility/Deportability ("I-261 "), charging him a removable under INA
212(a)(6)(C)(i), in that he sought to procure an immigration beneft by faud or material
misrepresentation. [Exh. IA]. In suppor of this additional charge, DRS alleged that Respondent
knowingly included false information on the Form N-400, Application fr Naturalization
("naturalization application"), which he submitted to the U.S. Citizenship and Immigration
Serices ("USCIS") on July 16, 2008. DHS assered that Respondent affrmed the false
infrmation when he signed the application upon submission and again afer his naturalization
interview with Ofcer Frank Castria ("Offcer Castria"). On May 23, 2012, Respondent
conceded service of the I-261, but denied the additional fctual allegations and charge of
inadmissi bi Ii ty.
On March 25, 2013, Respondent fled a motion to terminate proceedings. In addition to
arguing that he is not inadmissible, he contends that his right to due process was so egregiously
violated by the actions of DHS, considered individually and collectively, that proceedings should
be terminated.
II. DOCUMENTARY EVDENCE
Exh. 1:
Exh. 1.1:
NT A, served Nov. 16, 201 0,
I-261, served May 23, 2011;
Exh. 2: The Department's submission of Jan. 5, 2011, Tabs 1-5;
2 Allegation fur states: "On or about February 27, 2007, you retured to the United States afer
residing outside the United States fr a continuous period of longer than one year." Allegation
fve states: "On or about October 19, 2010, you arrived at John F. Kennedy Interational Airpor
in Jamaica, New York, and applied fr admission to the United States as a Lawfl Permanent
Resident." Allegation six states: "You are an immigrant not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing card, or other valid enty document required by
the Immigration and Nationality Act, to wit: You abandoned your Lawfl Permanent Residence
in the United States when you remained outside the United States fr a continuous period of
longer than one year."
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Exh. 3:
Exh. 4:
Exh. 5:
Exh. 6:
Exh. 7:
Exh. 8:
Exh. 9:
Exh. 10:3
Exh. 11:4
Respondent's submission supporting his motion to terinate of May 5, 2011,
Tabs A-F;
Respondent's submission supporting his motion fr adjourent of May 19,
2011, Tabs A-D;
Respondent's submission of Sept. 26, 2011, Tabs G-M;
Respondent's submission of Oct. 3, 2011, Tab N;
Respondent's submission of May 21, 2012;
Evidence of Respondent's lost Yemeni passpor;
Respondent's declaration in support of his motion fr a preliminary injunction,
No. 10-cv-750 (BR) (D. Or. Aug. 11, 2010);
U. S. Customs ad Border Protection, Inspector's Field Manual (Chales M.
Miller, ed., Feb. 1, 2008);
Respondent's submission of September 18, 2012.
Pa of the hearing held on October 24, 2011, was not recorded properly on the Cour's
Digital Audio Recording system, such that many statements made by Respondent and his
cousel are inaudible. The parties jointly created a tanscript of this portion of the hearing ad
stipulated to its accuacy. This transcript was admitted into evidence:
Exb. Tl: Joint trascription of audio fle fom the hearing on October 24, 2011.
III. MOTION TO TERMINATE
In his motion to terminate, Respondent argues that DHS so egregiously violated his rights
that these proceedings should be terminated. Specifcally, he argues that his right to due process
has been violated in fur respects: 1) lack of notice; 2) prejudice fom an ex parte
comunication; 3) lack of access to documents to which he is legally entitled; ad 4) DHS's
refsal to grant him proof of his LPR status. Each of Respondent's aguments is addressed
sepaately below. For the reasons that fllow, Respondent's motion is denied.
When DHS or EOIR violates its own regulations during removal proceedings, the Second
Circuit has set frh a two part test to evaluate what relief is due, if any. See Waldron v. IS, 17
F.3d 511 (2d Cir. 1993). Under Waldron, a regulatory violation that occurs during removal
proceedings requires termination of the proceeding in two circumstances: (1) if te violated
regulation was promulgated to protect a fndamental right guaanteed by the U.S. Constitution or
a federal statute, or (2) if the violation did not afect a fndamental right, but can be shown to
have otherwise prejudiced the rights protected by the regulation. Waldron, 17 F.3d at 518; see
also Raiah v. Mukasey, 544 F .3d 427, 446-4 7 (2d Cir. 2008) (expressly limiting the holding in
Waldron to violations that occur during removal proceedings).
3 Exhibits 8-10 were ofered initially fr identifcation puroses only. However, both paies
relied on the evidence dung testimony and in their closing briefs. Thus, the Court has teated
these exhibits a flly admitted to the record.
4 The Cou admitted this evidence in its Order dated April 4, 2013 .
. =
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If a regulatory violation does not afect a fndaental right, the proceeding should be
invalidated only if the respondent shows that the "infaction afected eiter the outcome or the
overall fairess of the proceeding. " Montero v. IS, 124 F.3d 381, 386 (2d Cir. 1997); see also
Waldron, 17 F. 3d at 518 (noting tat, if no fndamenta right has been violated, it "is best to
invalidate a challenged proceeding only upon a showing of prejudice to the rights sought to be
protected by the subject regulation"). In the absence of such prejudice, termination would "place
a uwar ated and potentially unworkable burden on the goverment's adjudication of
immigation caes." Wadron, 17 F. 3 d at 518.
A. Lack of Notice
Respondent argues that DHS did not give him proper notice of te additional fctual
allegations on which it relied to attempt to prove that he abandoned his LPR status or of the
additional charge of inadmissibility.
1. DHS relies on factual allegations not included in the NTA
Respondent argues that DHS is prohbited fom relying on fctual allegations not
Included in the NTA because he lacked notice that DHS would use such allegations against him.
Specifcally, the NTA did not mention his attainent of status in Saudi Arabia or his other trips
abroad. Respondent contends that the failure to include those fcts precludes DHS fom relying
on them to sustain the charge of inadmissibility. Moreover, he highlights te language of the
NT A, which explicitly states that he "abandoned his status when [he] remained outside the
United States fr a continuous period of longer than one year." [Exh. I]. He reasons tat the
inclusion of the word "continuous" necessarily limits the trips on which DHS ca rely to only
those exceeding one year.
Respondent's argument is unavailing. To begin, neither the NTA nor the 1-261 wa
incomplete or otherwise defcient. The regulations explain that te NTA must provide "witen
notice" by specifying "[t]he acts or conduct alleged to be in violation of law," as well as "[t]he
charges against the alien and the statutory provisions alleged to have been violated." IA
239(a)(l)(C)-(D). In this case, the NTA put Respondent on notice that he was being charged
as inadmissible because DHS believed that he lacked a valid entry document. See [Exh. 1]. In
support of that chage, OHS alleged that Respondent abandoned his status when he retured
fom being abroad fr more than one yea on February 27, 2007. Id. This allegation, in
combination with the chage, sufces to apprise Respondent of the charge against him and te
conduct which allegedly violated the statute. See INA 239(a)(l). The NTA need not set frth
the precise legal teory DHS intends to pursue. Id. Necessarily that theory may change over te
course of te evidentia hearing as testimonial evidence is elicited. Prior to Respondent's
testimony, OHS clearly stated tat it would rely on "a aggregation of other exits and reentes to
the [U.S. ]" to sustain the chage of inadmissibility. [Exh. Tl at 3].
Respondent cites two cases to support his argument: Piere v. Holder, 588 F.3d 767, 777
(2d Cir. 2009), and Brow v. Ashcrof, 360 F.3d 346, 350-51 (2d Cir. 2004). His reliance on
these cases is unpersuasive. In Pierre, the Second Circuit fund tat the petitioner's due process
rights were violated when the BIA sua sponte fund her removable based on a chage fr which
she was not given actal notice, via a NT A or an 1-261, or the opportunty to be heard by a
5
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Imigation Judge ("IJ") in conection with that charge. Pierre, 588 F.3d at 777. I contast,
while DHS's legal theory evolved as additional fcts emerged over the course of te
proceedings, it has continued to rely on the same charge of inadmissibility throughout. See [Exh.
1 ]. Moreover, Respondent was notifed of DHS's legal theory regarding te aggegation of his
travel abroad prior to his testimony. [Exh. Tl at 3]; see also Respondent Closing at 7 (Ma. 25,
2013) (admitting DHS's explicit intent to use the aggregation of his trps to attempt to prove
abandonment). In Brown, the Second Circuit explicitly noted that if an alien "was presented
wth the evidence at a hearing at which he was represented, had a chance to respond and could
have requested an adjourent if he flt he needed more time to consider te evidence ad
prepare a defnse," then DHS's filure to provide written notice was not prejudicial. Brown, 360
F.3d at 352. Likewise, here, Respondent was infred of DHS's legal theory prior to testifing
and thus had the opportunity to respond. He never requested a adjourent to address any of
DHS's aguments. Since the NTA was proper and Respondent had a opporunity to respond,
there was no egregious notice violation. Therefre, Respondent has filed to prove that DHS' s
reliance on additional fcts not explicitly included in the NT A was a due process violation.
2. DHS fed 1-261 after testimony of Offcer Castria
Respondent aso alleges tat DHS intentionally delayed fling the 1-261 to deny him
notice of the additional charge against him and a meaningfl opporunty to respond to it.
Specifcally, Respondent contends that DHS violated his rights when it drafed the 1-261 on May
23, 2011, but filed to serve hm until a year later, afer Offcer Castria testifed on May 21,
2012. [Exh. 1.1].
Respondent's agument that DHS acted inappropriately by fling the I-261 afer the
commencement of proceedings is incorect as a mater of law. The regulations explicitly perit
the fling of an 1-261 "{a]t any time during the proceeding.'' 8 C.F.R. 1240.lO(e) (emphasis
added). Thus, DHS was permited to wait until it determined that Ofcer Castria's testimony
supported an additional charge of inadmissibility befre serving the 1-261. Furthermore, the
Cour provided Respondent the opporunity to give additional testimony to address the new
charge afer DHS fled the 1-261. He declined. Based on the fcts, Respondent was given notice
and an opportunity to respond to the additional charge. Thus, his rights were not violated.
Brow, 360 F.3d at 352.
B. E Parte Communication
Respondent alleges that there may have been a improper ex parte communication
between the Executive Ofce fr Immigration Review ("EOIR") and CBP. He asks tat this
Court "ascerain whether the communication occurred, disclose the fll extent of te
communication, and terinate the proceedings." Id. at 77. Ex parte communications are barred
in immigration proceedings. Pursuant to the Immigration Court Practice Manual 1.7(e), "[a]
party cannot speak about a case with the [IJ] when the other party is not present, and all written
comunications about a case must be sered on the opposing pary." However, not all
communications between the Court and counsel are improper. Indeed, communications
regarding scheduling and purely administrative matters are not imprper ex parte
communications. See Ethics and Profssionalism Guide fr Immigation Judges, at 15.
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Based on information discovered through his request under the Freedom of Infration
Act ("FOIA"), Respondent assers that an improper ex parte comunication occurred between
EOIR and DHS. Specifcally, he leaed that Ofcer Tajes drafed two memoranda on October
20, 2012, regarding his interview at JFK Airort. [Exh. 11, Tab X]. A redacted copy of one
memorandu was disclosed to Respondent, but USCIS refsed to disclose te unredacted copy.
Id. In an affdavit submited to the District Cour, Ofcer Tajes explained that the memoranda
were identical, except one was signed by him. Id. , Tab Y at 298. The redacted memorandum
states that it was sent to EOIR. Id. Ofcer Tajes explained that he "mistakenly" addressed the
memoranda to EOIR but he never frwarded it. Id., Tab Y at 299. He meant to address it to
Respondent's Alien-File instead. Id. Additionally, the redacted memorandum indicates that
copies of Respondent's passport and Form I-551 ("Permanent Resident Card" or "green card")
were sent to EOIR. Ofcer Tajes asserts that this also was a mistake. Id., Tab Y at 299.
There has been no improper ex parte communication with the Court.
5
The Court did not
receive any documents fom DHS or CBP prior to Respondent's heang. It received a copy of
Respondent's passpor when DHS submitted it into evidence during the hearing held on October
24, 2011. [Exh. 2, Tab 5]. Respondent did not object to its submission. The Court received a
copy of the redacted memorandum written by Ofcer Tajes when Respondent submitted it in
support of his closing arguments and renewed motion to terminate on September 18, 2012. See
[Exh. 11, Tab X at 292-97]. The Court has not received any documents tat are not included in
the record. Thus, Respondent has not established that any improper ex parte communication
occured.
6
C. Withholding of documents to which Respondent is legally entitled
According to Respondent, DHS's filure to provide him wit certain requested
documents denied him a fll and fair hearing. A alien in removal proceedings has a statutory
right to "have access" to "records ad documents, not considered by the Attorey General to be
confdential, pertaning to the alien's admission or presence in the [U.S.]." IA 240(c)(2)(B).
Moreover, he "shall have a reasonable opportunity . . . to present evidence on te aien's own
behalf," IA 240(b)(4)(B), and an IJ's evidentiary rulings must "ensure that a petitioner is
affrded due process in the course of the proceedings." Secaida-Rosales v. IS, 331 F.3d 297,
306 n. 2 (2d Cir. 2003).
Respondent has filed to show that DHS withheld any documents to which he is legally
entitled. The evidence that Respondent complains has not been disclosed was reviewed and
5
Respondent previously alleged that DHS engaged in an impermissible ex parte communication
involving the defctive digital audio recording of one of the hearings in this case. The Court
addressed this arguent in its order dated Apri 1 4, 2013.
6 To the extent that Respondent is concered that the Court was prejudiced by the memorandum
because it contained infration that "if disclosed, would threaten aviation security, " te Cou
reiterates that it frst received the redacted memorandum when Respondent submitted it into
evidence and never received a unredacted copy of the memorandum. Moreover, as stated
above, the Cour draws no adverse infrence fom Respondent's inclusion on the "No Fly List."
See supra note 1.
7
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classifed a confdential by USCIS. [Exh. 1 1, Tab Q at 266 gutifing non-disclosure of the
documents on te fllowing exemptions: 5 C.F.R. 552(b)(5), (b)(7)(C), ad (b)(7)(e))]. It is
not i n this Cour's purview to question USCIS's determiations regarding confdentiality. See 8
C.F.R. 264. S(g), 1003. IO(b). Fuermore, Respondent fled suit in te U.S. District Court fr
the Easter District of New York to address this precise issue. Ahmed v. USCIS and DHS, 1 0-
cv-6230 (E. D.N.Y. 2013). On November 30, 201 2, the Distrct Cou reviewed in camera the
documents at issue. Id. Upon its review, it fund that the documents USCIS and DHS refsed to
release were properly withheld fom Respondent. Id.
In addition, Respondent relies on two cases to support his agument: Dent v. Holder, 627
F.3d 365 (9t Cir. 2010), ad Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 2011 ). Neither
is persuasive here. I Dent, the Nint Circuit ruled that DHS had a duty to produce the
uclassifed natualization applications in the Al ien-fle of a prose petitioner who requested help
seeking documents while in detention. Dent, 627 F.3d at 372. In contrast, Respondent is
represented by competent counsel who have submitted a FOIA request on his behalf, received
hundreds of documents and fled a lawsuit to compel USCIS and DHS to disclose additional
documents and infrmation previously withheld. See [Exh. 1 1 , Tabs Q, S-Y. Furthermore, the
BIA held in M-A-M- that DHS "has an obligation to provide the court with relevat materials in
its possession that would infr the cour about the respondent's mental competency." M-A-M,
25 I. & N. Dec. at 480 (emphasis added) (citing 8 C.F.R. 1240.2(a)). Respondent has not
raised any mental competency issue here. Therefre, Respondent filed to show that USCIS or
DHS witheld any documents to which he is legally entitled. IA 240(c)(2)(B).
D. Refusal to grant Respondent proof of his LPR status
Respondent argues that DHS violated his constittional right to live and work in the U.S.
by refsing to prvide him with proof of his lawful status. A "person in . . . removal proceedings
is entitled to evidence of peranent residence status until ordered excluded, depored, or
removed." 8 C.F.R. 264.S(g); see al so INA 264(d). USCIS "will issue such evidence in the
frm of a document that will remain valid until the proceedings are concluded. " 8 C.F .R.
264.S(g); see also IA 264( d).
This Cour lacks authority to mandate that USCIS issue Respondent evidence of his LPR
status. 8 C.F.R. 264.S(g), 1003. IO(b). The regulations provide that USCIS has the exclusive
authority to issue identity documents. 8 C. F. R. 264.S(g); see also IA 264(d). IJs "shall
exercise the powers and duties delegated to them by the Act and by the Attorey General trough
regulation." Respondent does not cite any regulation empowering IJs to mandate USCIS to issue
identity documents. Therefre, the Court cannot grant Respondent the relief it seeks.
Considering all of Respondent's arguments, the Court concludes tat his constittional or
statutory rights were not egregiously violated either prior to or during his hearng. Therefre,
Respondent' s motion to terinate these proceedings is denied.
IV. INADMISSIBILITY
DHS charges that Respondent is inadmissible on to separate grouds: I) that he is not
8
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in possession of a vaid enty document; and 2) that he committed faud or willflly
misrepresented material fcts when he sought naturalization. [Exhs. 1; 1 A]. Tese chages are
addresse in tur.
A. Invalid Entr Document
Generally, all immigrats must present a valid, unexpired visa and passport to be
admitted into the U. S. See IA 21 l(a). If a LPR has been absent fr less than one year, he
may present a valid, unexpired Permanent Resident Card in lieu of a visa. 8 C.F .R.
211. l (a)(2). If he is abroad in excess of one year, however, his geen card is rendered invalid.
INA 1 0l(a)(l3)(C)(ii); 8 C. F. R. 21 1. l(a)(2). Likewise, if a aien abandons his status,
regardless of the length of his trip abroad, his geen card ceases to be a valid enty document.
INA 1 01 (a)(1 3)(C)(i). Accordingly, if either is true, he may be regarded as an arriving alien
and chaged as inadmissibl e fr being present in the U.S. without a valid entry document. INA
212(a)(7)(A){i)(I). However, the Attorey General may grant a waiver fr a alien who has
been abroad in excess of 180 days if he qualifes as a "retuing resident. "
7
IA 211 (b ); 8
C. F. R. 21 1. l (b)(3), 2 1 1 . 4, 1211.4. A returning resident is a LPR who is returing fom a
"temporary visit abroad'' to a "unrelinquished lawfl peraent residence." Matter of Hug,
19 I. & N. Dec. 749, 752-53 (BIA 1988). An LPR who has abandoned his status necessaily fails
to qualify as a returing resident. Id.
Respondent is properly considered an arriving alien because he admittedly was absent
fom the U. S. fr more than 1 80 days during his 2006 trip abroad. See INA 1 0l(a)(l 3)(C)(ii);
8 C.F.R. 1. l(q), 1001 . l(q). However, the Court waives the documentary requirement because
Respondent qualifes as a retuing resident. Huang, 19 I. & N. Dec. at 752-53.
The Court fnds that Respondent's trps abroad were temporary within the meaning of te
law. The term "temporary" is not subject to infexible defnition and varies in application
depending on the fcts and circustaces of each case. " Id. at 753. A "temporary visit abroad
requires that 'the intention of the departing immigrant must be to retu within a period relatively
short, fxed by some early event."' Amed v. Ashcrof, 286 F.3d 61 1, 61 3 (2d Cir. 2002) (citing
United States ex rel . Leste v. Day, 21F.2d 307, 308-09 (2d Cir. 1927)). Wen te lengt of te
visit is not based on a ealy event, but on one with a reasonable possibility of occurring within a
short period of time, the "temporary visit" "canot be defned in terms of elapsed time alone."
Id. (citing United States ex rel . Polyeris et al. v. Trudell, 49 F.2d 730 (2d Cir. 1931), atd 284
U. S. 279 ( 1 932)). In such a case, "the intention of the visitor, when it can be determined, will
control." Id. , 268 F. 3d at 613 (citing Polymeris, 49 F.2d 730).
In deterining whether an alien has maintained a continuous intent to retur to the U.S. ,
the Cou may consider "the location of his family ties, propery holdings, and job, and whether
he intended to retu to the [U.S. ] as a place of employment or business or actal home. " Huag,
1 9 I. & N. Dec. at 753. "Since the number and nature of the ties will vary widely, the question
[ofen will be] one of determining whether the ties [] ae reasonably indicative of the alien's
7 A application fr a waiver is submitted on a Form 1-193, Application fr Waiver of Passport
ador Visa. Respondent submited that frm to the Cour. See [Exhs. 5, Tab G at 65; 7, Tab 0
at 165-67].
9
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continuing desire and intent to retur afer a temporay absence." Matter of Kane, 15 I. & N.
Dec. 258, 263 (BIA 1975). The applicant's desire to maintain his LPR stats, without more, is
not suffcient. Huang, 191. & N. Dec. at 755 (citing Kane, 15 I. & N. Dec. 258). His intent must
be suppored by his actions. Id.
A "unrelinquished lawfl permanent residence" can refr "to something less than a
permanent dwelling place in the [U.S. ]. " Huang, 19 I. & N. Dec. at 753. Thus, an "applicant's
lack of an actual dwelling place in this country is not, in and of itself, determinative in
ascertaining whether he is retuing fom a temporary absence abroad." Id. at 753-54.
Moreover, the U.S. Supreme Court has held that the IA does not mandate or imply that "the
status of having been lawfully accorded the privilege of residing permanently in the U.S. as an
immigrant in accordance with the immigration laws" will be denied to an individual "if he does
not intend to reside peranently here." Sabe v. Bustos, 419 U.S. 65, 72 (1974) (holding that
commuters who did not peranentl y reside in the U.S. but worked daily or seasonally were
"reting fom a temporary visit abroad" when they entered the U. S. ). Rather, the "status"
includes several imporant privileges, namely that an alien may work, remain indefnitely, ret
afer a temporary absence abroad, ad have the privilege of establishing a peranent residence in
the U.S. See id.
Typically, a alien charged under IA 212(a) bears the burden to prove that he is
"clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212."
INA 240(c)(2)(A). However, if an alien frst establishes that he has a "colorable claim" to
returing resident status, the burden shifs to DHS to prove by "clear, unequivocal and
convincing evidence" that the alien abandoned his status. Huag, 19 I. & N. Dec. at 754. This
heavy burden applies "notwithstanding lengthy absences fom [the U.S.]." Matadin v. Mukasey,
546 F.3d 85, 91 (2d Cir. 2008).
The parties agee that Respondent lawflly acquired his LPR status on January 20, 1990,
through his U.S. citizen fther.
8
[Exh. 2, Tab 4]. He has made numerous trips abroad and been
admitted repeatedly as an LPR. Thus, the evidence shows, and DHS stipulates, that Respondent
has presented a "colorable" claim to reting resident status. DHS Closing at 13 (Feb. 22,
2013). Accordingly, the burden shifs to DHS to prove by "clea, unequivocal, ad convincing
evidence" that Respondent does not qualify as a retung resident because he abandoned his
LPR status. Huang, 19 I. & N. Dec. at 754. Though a close case, DHS has not met its heavy
burden.
1. Findings of Fact
Respondent has been a LPR fr twenty-three years. Though Respondent's fther l ives
in Yemen, he is a U.S. citizen. Respondent" s wif ad thirteen children also live in Yemen,
while one of his daughters lives in Riyadh, Saudi Arabia. Respondent conceived twelve of his
children in Yemen since becoming an LPR. His wif and children have never lived in or visited
the U.S. because Respondent has lacked the fnancial means to petition fr any of his relatives.
Respondent has not worked in Yemen since he obtained LPR status, but has held numerous jobs
8
Respondent's fther became a U.S. citizen sometime in the 1960s and lived in the U.S. fr
approximately thiry years. Respondent estimates that he retued to Yemen i 1996.
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thoughout the U.S. They include laboring on a Califra fa, selling merchadise in New
York, and working as a production assistant in Indiana and Michigan. See [Exh. 5, Tab L at
9
2,
101, 108-09, 115-19, 121-35]. Additionally, he drove a delivery trck fr Fed-Ex. For this
position, he obtained commercial driver's licenses in Califria, Indiaa, and Michigan, as well
as a Driver Skills Test Cerifcate in Michigan. Id. Tab Lat 95-96, 103-07, 110, 112-13, 115-16.
He also obtained a "hazadous materials endorsement" fom USCIS in 2008. Id., Tab K. He
frther attended welding courses in Michigan. Id. Tab L at 79, 114. Respondent currently drives
fr a tai and limousine service in New York City. For this position, he attended driving courses
in New York. Id. Tab Lat 82. He consistently has paid income taxes, (Exhs. 3, Tab E at 5; 6,
Tab N), ad maintained several bank accounts. See [Ex. 5, Tab Lat 77-78, 83-85, 88-89].
Respondent does not own real property in Yemen or in the U.S. Wen he retus to
Yemen, he stays with his family at his fther's propery. In the U.S., he rents apatments where
he can fnd jobs, and he has lived in Califria, Indiaa, Michiga, and New York. Id., Tab L.
Additionally, he purchased a van in the U.S., but he shipped it to Yemen in 2006 fr his faily's
use. Id., Tab L at 111. He curently owns another car, which he uses fr work.
The paies disagee on the number of trips Respondent has taken abroad, their lengt,
and the exact dates. DHS relies on the list of ten trips abroad that Respondent included in his
2008 naturalization application. [Exh. 2, Tab 3 at 4]. It argues that the Cour should use these
dates because Respondent swore to their trut when he signed the application in 2008.
Respondent argues that these dates are inaccurate. The Court credits Respondent's testimony that
his passport was stolen during a visit to Yemen in 2006, paiculaly because DHS submitted a
Yemeni police report confring the thef. See [Exh. 2, Tab 2]. The Court additionally fnds
that Respondent credibly testifed that he provided a prepaer with a list of estimated dates of his
travel because he could not recall the exact dates and that, unbekownst to Respondent, the
preparer included erroneous dates on his application. IA 240(c)(4); see [Exh. 2, Tab 4]. One
obvious error was a retu date that preceded the depaure date.
Respondent admits that since 1990, he has made approximately ten to twelve trips
abroad. He believes he frst retured to Yemen with his fther, a U.S. citizen, at the end of 1991
and remained until the end of 1992. He additionally remembers a one-month trip to Saudi
Arabia in 1994 to perfrm a religious pilgrimage, a short trip to Yemen in l996, ad a six-to
eight month trip to Yemen in 1998, during which time he helped care fr his ailing fther.
The paries agree that Respondent traveled to Saudi Arabia in 2003. They fher agee
that he lived with his daughter's family in Riyadh and worked fr a tcking company fr three
months. However, they disagree as to the type of status he obtained. DHS contends that he
obtained "LPR status" and used it to live ad work in Saudi Arabia fr an "undefned period of
time." While Respondent admits that a fiend helped him obtain some frm of status i Saudi
Arabia, he has compared the status both to a "green card" and a "visa" during his interview with
Offcer Tajes and his testimony befre the Court. He claims that he never intended to stay
permanently, but only obtained the status in order to visit his relatives in Saudi Arabia and to
"get some money to help" fcilitate his travel to Yemen and the U.S. Indeed, he ultimately
infrmed his fiend that he could not "live over there all the time" and "cancelled" his status He
frther noted that he could not obtain any status in Saudi Arabia in 2010 when he was stranded in
that countr afer being infrmed of his inclusion on the "No Fly List."
11
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In addition, the parties agree that Respondent traveled to Yem en fom 2006 until 2007,
but disagree as to the lengt of te trip. DHS alleges that Respondent was i Yemen fr at leat
one year. It relies on the Yemeni police report, which Respondent admited he fled in person
during his 2006 trip. The report is dated Februar 27, 2006, exactly one year befre he reted
to the U.S. Additionally, Offcer Tajes testifed that CBP maintains a database called
"Arrival/Departure Infrmation System" ("ADIS"), which records all arrvals and deparures of
non-citizens. As a result, he stated it would be "easy" fr a CBP offcer to determine how long
a alien had been abroad. No evidence was presented as to whether the CBP offcer in San
Francisco checked ADIS prior to or during Respondent's secondary inspection on February 27,
2007. No information wa provided at the hearing about Respondent's exact deparure date in
2006. Respondent could recall only leaving te U.S. "at the end of Februar 2006."
The paies frther disagree as to the purpose of Respondent's trip. Respondent testifed
that the original purpose of this trip was to visit his family in Yemen fr several months.
However, in July 2006, shortly befre he was going to retur, Respondent leaed that his
daughter needed surgery on her leg due to a disability. [Exh. 5, Tab H]. She was placed in a
half-body cast and was unable to wak fr six months. Id., Tab J. He extended his visit to help
her recuperate troughout this period. Her cat was removed on Febrary 2, 2007. Respondent
purchased an airline ticket to the U.S. "a day or two" later, ultimately reting to this country on
February 27, 2007. [Exh. 2, Tab 5].
The Yemeni police repor is reliable evidence establishing that Respondent was abroad
fr at least one year fom 2006 util 2007. The Court further fnds credible Respondent's
testimony regarding the reason he extended this trip. INA 240(c)(4). He submitted medical
evidence fom the Orhopedic Workshop and Rehabilitation Center in Aden, Yemen, which
indicates that his daughter sufered fom subluxation in her hip.
9
[Exh. 3, Tab B at 10-11 ].
Additionally, he provided two leters fom the General Hospital of lbn Khaldoon, which confr
that Respondent signed a fr authorizing his daughter's surgery and that the surgery was
perfrmed on August 25, 2006, "to fx a defrmity on the lef hip joint." [Exh. 5, Tabs H, I].
The leters and x-rays of his daughter's leg were accompanied by a letter fom a fiend who
afrmed Respondent's care of his daughter and explained how and why he obtained the medical
documents. Id. at Tab J. Ths evidence corroborates Respondent's credible testimony regarding
his 2006-2007 tip.
The parties agree that when Respondent atempted to retu to the U.S. in Februay 2010,
he leaed that he was on the "No Fly List" and would not be permited to retur to the U.S. on a
commercial fight. Ultimately, he was permitted to retu on October 19, 2010, afer obtaning a
9 Subluxation is a "signifcant strctural displacement" and "[a] lesion or dysfunction in a joint
or motion segment in which alignment, movement integrity and/or physiological fnction are
altered, although contact between joint surfaces remains intact. It is essentially a fnctional
entity, which may infuence biomechanical ad neural integrity." See World Health
Organization, WHO Guidelines on basic training and safty in chiropractic, WHO: Geneva 2005,
available at http://ww.who.intmedicines/areas/traditional/Chiro-Guidelines. pdf.
12
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preliminary injunction fom a U.S. District Judge in Oregon.
1 0
Upon his arival at JK Airpor,
Respondent was questioned by CBP Offcer Tajes.
1 1
Per noral procedure, Ofcer Tajes asked
Respondent a series of questions and answers, which he memorialized in a Form I-877, Record
of Swor Statement in Administative Proceedings. He saved the completed Form 1-877
("Q&A") to a database accessible to all CBP ofcers. [Exh. 2, Tab 1].
Ofcer Tajes used a telephonic Arabic interpreter during the interview. The interview
was not audio or video recorded. During the interview, Respondent was asked a series of
questions about his lif in the U.S. According to te Q&A, Ofcer Tajes asked Respondent if he
had a permanent address. Respondent answered, "When I settle down in the [U.S.], I will get a
permanent address." [Exh. 2, Tab 1 at 4]. When asked how long he intended to stay in the U. S. ,
he responded that he was not sure because he had "debts to pay of. " Id. at 10. Additionaly,
when asked about the purose of his trip, he explained, "I live in the [U. S. ] so I want to live here
and support myself and my fmily. If I was [sic] rich, I wouldn' t have to live in the [U.S.]." Id.
Respondent also was questioned about his status in Saudi Arabia. He explained that he lef
because he was "not successfl in [his] work." Id. at 6. He did not explain or provide proof of
the type of status he had acquired in Saudi Arabia. Respondent signed the English Q&A at the
conclusion of the interview, although it was not read back to him in Arabic prior to him signing
it. Id.
1 0
I n its closing, DHS argues that Respondent abandoned his LPR status based, in part, on his
most recent stay abroad fom July 27, 2009 to October 19, 2010, when he wa prevented fom
returing due to his inclusion on the "No Fly List." However, on October 24, 2011, the DHS
attorey had stated on the record, "I just want to make it clear. The goverent is not i ay
way, shape, or frm using the time period when the respondent was out of the country, fom
when he tried to get back, as of about February 4, 2010, to when he actually came back on
October 19, 2010, as a fctor to be considered in whether or not he abandoned his status." [Exh.
Tl at 3-4]. The DHS attorey frther agreed that DHS was not seeking to use that visit to sustain
the charge of inadmissibility pursuant to INA 212(a)(7)(A)(i)(I), including to prove that
Respondent had been abroad fr more than 180 days or that his green card was no longer valid.
Accordingly, the Court has not considered this trip in its analysis.
Even if the Cour were to consider this trip, it is plain that Respondent intended to ret
to the U.S. Indeed, he fled a lawsuit to be removed fom the "No Fly List" and allowed to
retur. See Latif v. Holder, 10 Civ. 750 (D. Or. ). Moreover, even witout DHS's stipulation,
the Court would fnd that his absence was "temporary" because his filure to retur in less tha
one year was a direct result of the U. S. goverment' s refsal to allow him to enter due to his
inclusion on the "No Fly List. " Thus, his protracted stay was "caused by reasons beyond [his]
control and fr which [he] was not responsible. " 22 C.F. R. 22.42(a)(3); see also Polymeris, 49
F.2d 730 (holding that a fve-yea trip abroad was "temporary" when the U.S. goverent had
prevented the aliens fom returing to the U. S. ).
1
1
Ofcer Taj es has been a CBP ofcer fr approximately eight years. As part of hs duties, he
estimates that he has interviewed thousands of individuals seeking admission into the U.S. and
has maintained records of the approximately 500 individuals with "adverse actions," or those
who were placed in removal proceedings.
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The paries disagree as to whether the Q&A is a accurate refection of Respondent's
interiew wit Offcer Tajes. According to Ofcer Tajes, te Q&A is accurate. See [Exh. 2,
Tab 1 ]. However, Respondent alleges tat he discovered several errors afer asking a fend to
review the document in Arabic with him a fw days afer his interiew. One of the erors was
his alleged statement that he knew he was going to be delayed because he was "out [of the
country] fr so long." Id. , Tab 1 at 10. He contends that he told Ofcer Taj es tat he knew he
would be delayed because the goverent "had stopped [him] fom travelling fr eight months."
He also believed that he did not say "If I was rich, I wouldn't have to live i the United States."
Id. However, he ultimately conceded that he could not remember if he had made the statement.
He also repeatedly noted that he has memory problems and admited he may have been confsed
during the interview because he had just arrived in the U. S. afer a twenty-hour fight.
The Cou fnds that Offcer Tajes credibly testifed about his interview wit Respondent.
IA 240(c)(4). His testimony was interally consistent and detailed, and he was frthght
with his answers. His credibility is fher suppored by the Q&A, which is reliable evidence of
the interview. See Felzcerek v. IS, 75 F.3d 112, 116 (2d Cir. l996)(fnding that "records made
by public offcials in the ordina course of their duties . . . evidence stong indicia of
reliability"). While Respondent was generally credible, the Court regards the contemporaneous
and detailed nature of the Q&A as more reliable than Respondent's memory of the paticula
statements he made during the interview, especially afer a twenty-hour fight and a potentially
eight-hour inspection at JFK. This fnding is frher substantiated by the fct that Respondent
acknowledged that he had difcult remembering details of other events in his lif, including his
visits abroad.
2. Analysis
DHS argues that Respondent's attainment of immigration status in Saudi Aabia is
"singulaly dispositive" on the question of abandonment. On balance, however, te Court fnds
that DHS has not met its burden of showing by clear, unequivocal and convincing evidence that
Respondent did not maintain a continuous intent to return to the U. S. Without Respondent's
passport, the type of status he obtained in Saudi Arabia remains unclear. Respondent has
compared the status he obtained both to a "green card" and a "visa." There are signifcant
diferences between these two frms of status in the U. S. , such that his description does not
answer the question. Since the only documentation of his status was included in his passpor,
which was stolen in 2006, the Cour has no documentay evidence upon which to rely. Tus,
while obtaining "permanent resident" status in another county would undermine Respondent' s
argument that he always maintained the intent to ret to the U. S., DHS has not show that he
obtained such status. Accordingly, the Court fnds that the evidence does not unequivocally
establish that Respondent obtained LPR status in Saudi Arabia and thus, cannot be "singulal y
dispositive" as to whether he abandoned his status in the U. S.
Alteratively, DHS asserts that many of Respondent's trips abroad were not temporar.
DHS relies on the list of ten tps abroad included in Respondent's naturalization application,
arguing that, with the exception of a single trip to Saudi Arabia fr religious purposes i n 1 994,
none of Respondent's trips abroad were fr a fxed period of time. [Exh. 2, Tab 3 at 4) . Rater,
DHS contends that he would "work [in the U. S.] long enough to pay of [his] debts, quit his j ob,
and ret to Yemen fr lengthy periods of time to live with and gow his family." DHS Closing
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at 1 6. Respondent only retued to the U. S. when he "accumulated debts thereafer" ad needed
to ret to "make money ad repeat[] the pater." Id.
DHS also alleges that Respondent' s answers during his interiew with CBP Offcer Tajes
on October 1 9, 201 2, ae frther evidence of his lack of intent to ret to the U. S. Specifcaly,
DHS highligts his statements indicating that he would acquire a peranent dwelling once he
"settle[d] down in the [U.S. ]" and that his length of stay in the U. S. depended on the amount of
his debts. [Exh. 2, Tab 2 at 4, 1 0] . In DHS' s view, these statements show tat Respondent does
not regard the U. S. as his permaent home. Additionally, DHS asserts that his statement that he
would not need to live in the U. S. if he was rich indicates that te "primar, if not sole, reason"
he comes to the U. S. is to make money. DHS Closing at 11. Moreover, DHS stresses that
Respondent' s lack of intent to retur has been evident througout his trips abroad given his weak
ties to the U. S. and strong ties to Yemen. DHS characterizes Respondent ' s lif in the U. S. as
"only a nomadic existence, possessing no real propery or substantial property, and working jobs
he would routinely quit in order to get back to his fami ly in Yeme
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. . . . " Id. at 1 4. This
characterization is apt in some respects, ad the Court may fnd that an alien' s ties ae not
"reasonably indicative of [his] continuing desire and intent to retu afer a temporary absence. "
Kane, 1 5 I. & N. Dec. at 263. However, a respondent does not abadon his status merely by
residing in this coutry while working to suppor his relatives who reside abroad. Rater, it i s
Respondent' s intent when he departs the U. S. and throughout his tips abroad that matters.
Respondent has demonstrated a fxed intent over time to retu to the U. S. durng each of his
trips abroad.
DHS has filed to meet its burden to show that Respondent' s other trips abroad were not
temporary because he filed to maintain a continuous intent to retu to the U. S. Te evidence
establishes tat the 2006 tip was temporary. A seven-month extension of his trip in order to
care fr his daughter until her half-body cast was removed was an event that had a "reasonable
possibility of occuring within a shor period of time. " Ahmed, 286 F. 3d at 61 3 . Wen his
daughter recovered, Respondent immediately purchased a ticket to the U. S. and retured in less
than one mont. Extended tips to care fr family members befre returing to the U. S. typically
qualif as "temporay. " Matadin, 546 F.3d at 92 (suggesting the alien had not abadoned her
status when she lived abroad fr three years to care fr her ailing father ad his estate); see also
Polymeris, 49 F. 2d at 732 (fnding that a tip abroad wa "tempora" when petitioners proved
that the timing of their retur "depended upon the condition of health of [a petitioner' s] husband
. . . and the time required fr them to remain to atend to the settlement of his estate."). Thus, the
mere fct that he was abroad fr approximately one year is not dispositive. Instead, his intent
during that visit controls. Huag, 1 9 I. & N. Dec. at 755.
Respondent has lived and worked in the U. S. fr twenty-thee years, only visiting his
family fr several months every one to three years. Even accepting the dates listed on
Respondent' s naturalization application as accurate and combining the listed number of days
abroad with the additional trips about which Respondent testifed, the Cour fnds that he has
spent approximately three-quaers of the past twenty-three yeas in the U. S. Cf Singh v. Reno,
1 1 1 F. 3d 1 5 1 2, 1 5 1 5 (9th Cir. 1 997) (fnding that Singh abandoned his status based on, inter alia,
the fct that afer ataining LPR status, he spent only twenty-two percent of his time in the U. S. ).
Moreover, when Respondent retus to Yemen, regardless of the lengh of his tp, he never
works and he stays at property owned by hs fther. [Exh. Tl at 1 8] . Te only time he has
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worked abroad was in Saudi Arabia in 2003 . However, his express purpose in working was to
raise enough money to retur to the U. S. Accordingly, his history of travel and work shows tat
he has maintained a continuous intention to retu to the U. S. "as a place of employment." See
Sabe, 41 9 U. S. at 72. The fct that he cannot affrd to petition fr his family, or even that they
may choose to remain in Yemen, is not dispositive. There is no requirement tat a LPR
relocate his faily to the U. S. Likewise, his lack of a peraent dwelling place in the U. S. does
not underine his intent to retur because the regulations require only a ''uelinquished lawl
peraent residence. " Huag, 1 9 I. & N. Dec. at 753; see also Saxbe, 41 9 U. S. at 72.
Viewing the record in its totality, the picture that emerges is tat of a ma who lives and
works in te U. S. in order to suppor his family in Yemen. Respondent has appaently fllowed
in the fotsteps of his fter, who also lived and worked in the U. S. fr thir yeas until he
retired in Yemen. Te question then is whether a person whose work is in the U. S. , but whose
"life," in may respects, is abroad may maintain LPR status without abandoning it. Under the
law, te answer is yes. Accordingly DHS faled to show by "clear, unequivocal and
convincing" evidence that Respondent abadoned his LPR status. Thus, the Cou concludes
that Respondent qualifes as a returing resident and grats him a waiver under IA 21 1 (b ) .
B. Fraud or Willful Misrepresentation
DHS additionally aleges that in applying fr naturalization, Respondent sought to obtain
a immigration beneft "by faud or willflly misrepresenting a materia fact," in violation of
INA 2 1 2(a)(6)(C)(i). [Exh. l A] . "Fraud" and "willflly misrepresenting a materal fct" ae
two diferent, alterative bases fr removability. See Emoka v. Mukasey, 523 F.3d 1 1 0, 1 1 6
(2d Cir. 2008).
Although the Second Circuit has not addressed the diference beteen "faud" and
"will flly misrepresenting a material fct" in the context of IA 21 2(a)(6)(C)(i), oter Courts
of Appeals have held that "faud" requires an intent to deceive, whereas "willfl
misrepresentation" requires only kowledge of the flsity of a representation. See Parla v.
Holder, 578 F. 3d 457, 463-64 (6th Cir. 2009); Mwongera v. IS, 1 87 F.3d 323, 330 (3d Cir.
1 999); Witer v. IS, 1 1 3 F. 3d 549, 554 (5t Cir. 1 997). Generally, "faud requires that the
respondent kow the flsity of his or her statement, intend to deceive the goverent ofcial,
and succeed in this deception." Matter of Tija, 22 I. & N. Dec. 408, 424 (BIA 1 998)
(Rosenberg, J . , concurring and dissenting) (citing Matter of G-G-, 7 I. & N. Dec. 1 61 (BIA
1 956)).
In contrast, three elements must be established to substatiate a charge of removabilit
relating to wil lflly misrepresenting a material fct in an attempt to procure an immigation
beneft. Monter v. Gonales, 430 F. 3d 546, 554 (2d Cir. 2005) (citing Kungs v. United States,
485 U. S. 759, 767 ( 1 988)). First, the respondent must have misrepresented or concealed some
fct. Monter, 430 F. 3d at 554. Second, the misrepresentation or concealment must have been
willfl. Id. "An act is done willflly if [it is] done intentionally ad deliberately ad if it is not
the result of inocent mistake, negligence or inadvertence." Emokah, 523 F. 3d at 1 1 6- 1 7 (citing
United States v. Dixon. 536 F. 2d 1 388, 1 397 (2d Cir. 1 976)). The "willflness" element i s
generally satisfed by a fnding tat the respondent knew of the fasity of the representation at the
time he made it. See Matter of Heay ad Goodchild, 1 7 l&N Dec. 22, 28 (BIA 1 979). Third,
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the fct must have been materal. Id. A misrepresentation or concealment is "material" if it
"ha[s] a natural tendency to infuence the decisions of te [adjudicatory body to which it was
addressed]. " Matter of D-R-, 25 I&N Dec. 445, 450 (BIA 2011) (citing Kungs, 485 U. S. at
772) (interal citations omitted). A misrepresentation also is material if it "tends to shut of a
line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a
proper determination that he be excluded." Matter of Bosuego, 17 l&N Dec. 125, 130 (BI
1979). There is no requirement that the concealment or misrepresentation actually infuenced the
agency. D-R-, 25 I&N Dec. at 450.
1. Respondent' s naturalization interiew
In alleging faud or material misrepresentation, DHS argues that Respondent deliberately
underreported the length of his trips abroad in his naturalization application. As discussed
earlier, on July 16, 2008, Respondent fled a natralization application with USCIS, with the
assistance of a paid preparer. [Exh. 2, Tab 3 at 14-24] . He testifed that he provided the prepaer
with approximate dates of his travel to Yemen and Saudi Arabia prior to 2006 because he had
lost his passport in 2006 and had diffculty remembering the exact dates. Respondent frer
testifed that he did not review the application prior to signing and submitting it to USCIS.
On February I 0, 2009, Respondent attended an interview with USCIS Ofcer Fra
Castria. He testifed that he infrmed Ofcer Castria that he had provided the preparer with only
a estimate of the exact dates of travel because his passport had been stolen. He noted that
Ofcer Castia requested a copy of his passport or other proof of the dates and length of each of
his trips abroad. [Exh. 11, Tab R]. On March 29, 2009, Respondent mailed USCIS a copy of the
Yemeni police report which shows that his passport was stolen on Febrary 27, 2006. [Exh. 2,
Tab 2]. His cover letter states that "[a]s you knows [sic] and told you tat all my paper [sic]
including my passport were stolen fom me." [Exh. 8 at l ].
Ofcer Castra has been a naturalization ofcer at the USCIS offce in Detroit, Michiga,
fr more than eight years. He testifed that his recollection of the interview was primarily
limited to his review of Respondent's naturalization application. However, he denied that
Respondent told him that his passpor had been stolen. Rather, Offcer Castria believes that
Respondent merely claimed that he "did not have it with him." If he had known tat
Respondent's passport was stolen, he would not have requested a copy of the passport in a
Request For Evidence. See [Exh. 11, Tab R at 276] .
According to Ofcer Castria, normal procedures govering natralization interviews
require that the ofcer ofer the applicant an opporunity to correct ay infrmation contained in
his application. Any changes are maked in red ink. Based on this process, Ofcer Castia
stated that Respondent "probably did not tell [him] very much about the trips that were already
l isted" because no corrections to that section were made. Specifcally, he believes that he would
have indicated in red ink that the dates were estimates. If Respondent had indicated on his
application or in his interview that he had taen a trip fr more than 180 days during the relevant
statutory period, Offcer Castria testifed that he would have investigated frther and may have
denied Respondent's application. He further stated that any absence of one year or more during
one of his trips would have resulted in a denial. Additionally, Ofcer Castria noted that
Respondent did not tell him that he had obtained status in Saudi Arabia.
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Ofcer Castria typically brings any blatant errors on an application to te attention of the
applicant during the interiew. In the list of Respondent' s tips abroad one entry is obviously
erroneous, indicating that he allegedly retured to the U. S. fur months prior to the date he lef
the U. S.
12
[Exh. 2, Tab C at 4] . Ofcer Castia admited that he "probably" did not question
Respondent about this because it occurred befre the fve-year statutory period with which
USCIS was concered. He testifed that he generally does not consider tavel outside this
statutory period to be relevant to determining an alien's eligibility fr naturalization. However,
he believes he questioned Respondent as to te only trip that was maked as lasting longer ta
six months, despite the fct that it was outside the statutory period. When questioned as to why
he would ask about this trip, Ofcer Castria stated, "I can ask whatever I want in these
interviews . . . . I pick and choose what I want to ask and what I fel is not relevant." Ofcer
Castria could not specifcally recall questioning Respondent about ay other trips.
Respondent testifed that he was not shown any changes to his application at the time of
his interview, ad he did not sign it afer the interview was complete. His application remains
pending befre USCIS. See [Exh. 5, Tab L at 97] .
2. Respondent's interiew with CBP Ofcer Tajes
On October 1 9, 20 1 0, Offcer Taj es questioned Respondent about his 2008 naturalization
application. When asked whether he recalled giving infrmation about his tips abroad in his
application, Respondent testifed that he stated, "I put a estimated date of all of my trips. I had
to estimate dates because I lost my passport." Id. at 9. When confonted with one trip listed in
his application as lasting fom October 2006 until February 2007, Respondent admitted "that was
a mistake. It wasn' t tue." Id.
During the interview, Offcer Tajes reviewed CBP' s "TECS" database, which contained
the CBP offcer' s record of Respondent' s inspection at the Sa Fracisco Interational Airport
on Februar 27, 2007. He explained to the Court that, generally, fr seconday inspections that
do not result in removal proceedings, a Q&A is not prepared, an alien is not necessarily
interviewed with the assistance of an interreter, and the infration entered into the TECS
database is not read back to the alien to conr its accuracy. Offcer Taj es asked Respondent
how he answered when the CBP ofcer in Sa Francisco asked him how long he had been
abroad. According to the Q&A, Respondent replied, "eleven months or something like that."
According to Offcer Tajes, the TECS database indicated that Respondent told the ofcer in Sa
Francisco that he had been abroad fr "eleven months. "
3. Analysis
The record does not establish that Respondent committed faud or wil lflly
misrepresentd a material fct when he applied to natralize. While the Court fnds Ofcer
Castria' s testimony credible, he admitted that his memory of the interview was based on the
normal procedures he typically fllows and the notes included on Respondent's naturalization
1 2
The application indicates that Respondent lef the U. S. on May 1 2, 1 993, and reted on
Januar 1 5, 1 993. [Exh. 2, Tab 1 at 4] .
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application. He only independently recalls asking Respondent about the single tip marked a
lasting longer than six months.
The Cour credits Respondent' s testimony that he provided a preparer wit a list of
estimated dates and that he did not know the preparer included diferent, inaccurate dates on his
natualization application. If Respondent intended to defaud the U. S. goverent, it seems
unlikely tat he would knowingly list a tip with an alleged retur date that would have occured
prior to the deparure date. [Exh. 2, Tab 3 at 4]. At most, there is evidence of carelessness.
Moreover, te fct that Respondent was consistent regarding his travels during interviews with
the CBP ofcer in San Francisco and Offcer Tajes undercuts the allegation that he kowingly
misrepresented any infrmation to Offcer Castia. See id. , Tab 1 at 9. The allegation is frher
undermined by Respondent' s submission of his cover letter, which indicates that he believes he
told Offcer Castria tat his passport was stolen. [Exh. 8]. The police report also confms that
he was in Yemen in February 2006, contradicting the dates listed in his application. [Exh. 2,
Tabs 2, 3] . Again, i f Respondent intended to commit faud or misrepresent a material fct, i t i s
unlikely that he would kowingly submit evidence to Ofcer Castria that contadicted the
inaccurate information listed on his natalization application.
Respondent also credibly testifed that he did not review his naturalization application
befre submission because the preparer filed to examine it with him and he canot read English.
Accordingly, the omission of his visit ad temporary residence in Saudi Arabia was not kowing
or intentional and does not amount to faud or material misrepresentation. As stted earlier,
Respondent' s candid answers to Ofcer Tajes' questions about his status in other countries
undermine the allegation that he kowingly misrepresented this fct to Ofcer Castria.
Having reviewed the record in its totality, the Court fnds that Respondent established
that he did not intend to deceive or intentionally misrepresent any fct to a goverent ofcial in
an attempt to procure a immigration beneft.
1 3
Therefre, the additional charge of
inadmissibility i s not sustained.
V. CONCLUSION
DHS has filed to establish that Respondent is inadmissible. He did not abandon his LPR
status and merits a waiver fr his absence in excess of one year. Moreover, he did not commit
faud or willflly misrepresent a material fct when he applied to natral ize.
Accordingly, afer a carefl review of the record, the fllowing orders will be entered:
13
The Court notes that it is unclear which party bears the burden on the issue of the IA
2 1 2(a)(6)(C)(i) charge. Respondent was properly regaded as an arriving alien pursuant to
IA 1 0l (a)( l 3)(C)(ii), but the ground of inadmissibility was not sustained because the Court
granted Respondent a waiver under IA 2 1 1 (b ). Arguably, because Respondent is no longer
properly treated as an arriving alien, DHS should bear the burden of proving that he is removabl e
under IA 237(a)( l )(A). The Cour does not resolve this issue here. Even assuming
Respondent has the burden to show he is not inadmissible, the Cour fnds that he has met that
burden.
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ORDERS
IT IS HERBY ORDERED that the charge of inadmissibilit pursuant to IA
21 2(a)(7)(A)(i)(I) is NOT SUSTAINED;
IT IS FURTHER ORDERED that Respondent' s appl ication fr a waiver pursuat to IA
2 1 1 (b) is GRANTED;
IT IS FURTHER ORDERED that te charge of inadmissibilit pursuant to IA
2 1 2(a)(6)(C)(i) is NOT SUSTAINED; ad
IT IS FURTHER ORDERED that Respondent i s admitted to the U. S. as an LPR fr the
duration of his status.
Date
20
( .. _ . ;

..
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U S. Immigration Judge
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