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Department of Justice
Agopoglu, Berc., Esq Law Offices of Berc & Associates 1999 Avenue of the Stars., Suite 1100 Los Angeles, CA 90067-0000
OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014
A046-960-320
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Enclosure
Cite as: Mohammad Hashemian Tabriz, A046 960 320 (BIA March 17, 2011)
File:
Date:
In re: MOHAMMAD HASHEMIAN TABRIZ IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Berc Agopoglu, Esquire
MAR 1 7 2011
CHARGE: Notice: Sec. 212(a)(7)(A)(i)(I), l&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document
The Department of Homeland Security ("DHS") has appealed the Immigration Judge's July 23, 2009, decision terminating the respondent's removal proceedings without prejudice. The respondent has opposed the appeal. The appeal will be sustained, the proceedings reinstated, and the record remanded for further proceedings. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard. We review all other issues, including whether the parties have met their relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. 1003.1 (d)(3)(i), (ii); see also Matter ofA-S-B-. 24 l&N Dec. 493 (BIA 2008). The respondent, a native and citizen of Iran, was granted lawful permanent resident status on June 14, 2001. In that same month, the respondent departed the United States for Iran. On April 12, 2007, the respondent sought admission into the United States as a returning resident alien of the United States. It is undisputed that the respondent has been outside of the United States since he departed in June 2001, for 69 months. It is also undisputed that when the respondent arrived in the United States in April 2007, he presented his unexpired permanent resident card. Any alien present in the United States, who has not been admitted, or who arrives in the United States (whether or not at a designated port of arrival) is deemed for purposes of the Act to be an applicant for admission. Section 235(a)(l) of the Act; see section 240(c)(2)(A) of the Act; 8 C.F.R. 1240.8(b). admission, however. Lawful permanent residents are not generally treated as applicants for Nevertheless, as this Board discussed in Matter of Collado-Munoz,
21 l&N Dec. 1061 (BIA 1997, 1998) (en banc).(as amended), section 10l(a)(l3)(C) of the Act specifically addresses the treatment of lawful permanent residents who are described in sections
Cite as: Mohammad Hashemian Tabriz, A046 960 320 (BIA March 17, 2011)
IOI(a)(13)(C)(i)-(vi) ofthe Act. Such aliens are exceptions to the general class oflawful permanent resident aliens who are not regarded as seeking admission to the United States. However, we have not held that the subsequent revisions to the Act made by Congress indicate an intent to supersede the ruling in Landon
v.
Plascencia, 459 U.S. 21, 34 (1982), and we recognize that the burden of
proof remains with the Government to show that a lawful permanent resident is an applicant for admission pwsuant to the statutory criteria under section I01(a)(13)(C) ofthe Act. Accordingly,like the Immigration Judge, we reject the DHS's argument that it is the respondent who bore the burden of proving that he has not "abandoned" his lawful permanent resident status as provided under section 101(a)(13)(C)(i) of the Act.
It is undisputed,however,that the respondent was absent from the United States for a continuous period of more than 180 days, and he is therefore regarded as an alien seeking admission to the United States under section 101(a)(l 3)(C)(ii), and an "arriving alien" as defined under 8 C.F.R. 1.1 (q),1001. l (q); see also De Vega v. Gonzales, 503 F.3d 45,48-49 (1st Cir. 2007) (recognizing section 101 (a)(l 3)(C)'s abrogation of the " Fleuti Doctrine"); accord Camins 500 F.3d 872, 878-80
v.
(9th
Gonzales,
(5th Cir. 2006); Tineo v. supra. It was therefore proper for the OHS to charge the respondent as an arriving alien, and subject to the inadmissibility grounds under the Act. Moreover, because the respondent has been absent from the United States for more than 1 year, he can no longer utilize his otherwise unexpired permanent resident card to gain entry or admission into the United States. 8 C.F.R. 2 l 1. l (a)(2). There is no other indication on the record that the respondent sought entry or admission into the United States by presenting any other valid entry document. As recognized by the Immigration Judge (l.J. at 5), the respondent is inadmissible under section 212(a)(7)(A)(i)(I) of the Act, as charged by the DHS, because he was not in possession of a valid immigrant visa, or other entry document,at the time that he sought admission into the United States. It is not necessary for the OHS to allege or to prove that the respondent abandoned his status for him to be found removable on this ground. Immigration Judges are empowered to take any action consistent with applicable law and regulations as may be appropriate, including granting reasonable continuances for "good cause shown." 8 C.F.R. 1003.29. However, once removability is established, the Immigration Judge must otherwise conclude the proceedings by either issuing an order of removal or granting the respondent some form of relief from removal. See e.g., 8 C.F.R. 1239.2(c); Matter ofG-N-C-, 22 I&N Dec. 281, 283-84 (BIA 1998); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Because the undisputed evidence in the record establishes that the respondent is removable under section 2 l 2(a)(7)(A)(i)(I) ofthe Act as charged, the Immigration Judge's justification for terminating proceedings without prejudice to allow the respondent to file a section 211(b) waiver with the DHS, was improper. The Immigration Judge did not otherwise identify any statutory, regulatory, or egregious violations committed by the OHS in commencing the instant removal proceedings, such that would lead to the conclusion that the respondent was deprived of due process of law sufficient to justify the termination of the instant proceedings. In view of the foregoing, we will vacate the Immigration Judge's July 23, 2009, decision, and reinstate the respondent's removal proceedings. The record will be remanded for consideration of any relief from removal for which the respondent is eligible, including determining whether the 2
Gonzales, 462 F.3d 498, 501 Ashcroft, 350 F.3d 382, 395-96 (3d Cir. 2003); Matter of Collado-Munoz,
v.
Cite as: Mohammad Hashemian Tabriz, A046 960 320 (BIA March 17, 2011)
A046 960 32Q respondent may apply for a discretionary waiver under section 211(b) of the Act before the Immigration Judge in the first instance, as the DHS has now asserted on appeal (DHS's Br. at 22)
(citing Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987)). See 8 C.F.R. 211.4 (denial of waiver
is not appealable but may be renewed in proceedings before the Immigration Judge), 1211.4 (same), 8 C.F.R. 21 l.l(b)(3); Matter of De/agadillo, 15 I&N Dec. 395 (BIA 1975); Maller of Salviejo, 13 I&N Dec. 557 (BIA 1970); see also Maller of Lemhammad, 20 I&N Dec. 316, 323 (BIA 1991 ). In view of the foregoing, the following orders shall be entered. ORDER: The Immigration Judge's July 23, 2009, decision is vacated, and the removal proceedings are reinstated. FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.
Cite as: Mohammad Hashemian Tabriz, A046 960 320 (BIA March 17, 2011)
UNITED STATES DEPARTMENT OF JUSTI CE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA
) ) ) )
) ) IN REMOVAL PROCEEDINGS
) Respondent.
CHAR GE:
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (..Act'') - lmmigra111 who, at the time of application for admisl'ion,
was not In possession ofvaUd enlry document.
APPLICATION:
Motion to Terminate.
ON BEHALF OF THE GOVERNMENT:
ON BEHALF OF RESPONDENT:
Berc Agopoglu, Esquire Law Offices of Berc & Associates 1999 Avenue of the Stnrs, Suile 1100 Los Angeles, California 90067
Assistant Chief Counsel U.S. Department of Homeland Security 606 South Olive Street, 81h Floor Los Angeles, California 90014
On April 25, 2007, the Government served Respondent with a Notice to Appear (''NTA'') by regular mail. See Exh. I. The NTA was filed with the Coun on May 4, 2007, thereby vesting jurisdiction over Respondent's proceedings with this Court pursuant to 8 C.F.R. 1003.l4(a). Id. In the NTA, the Government charged Respondent as an arriving alien and alleged that Respondent, a native and citizen of Iran, was granted lawful permanent resident status on June 14, 200 1 , but departed the United States for Iran in June 2001. Id. The Government further alleged thnt Respondent returned from Iran to the Unite d States on April 12, 2007, nnd a pplied for admission i nto the United States ns a returning resident. Id. The Government alleged that Respondent did not possess or present a valid entry document upon his application for admission. Therefore, the Government charged Respondent with inadmissibility pursuant to section 2 I 2(a)(7)(A)(i)(l) of the Act.
he possessed and presented a valid pennanent resident card at the time he applied for admission into the United States.
t-5 but denied factual allegation 6, that Respondent was not in possession of a valid entry document. Respondent contested removability on the charge contained in the NTA, arguing that
On July 18,
After several continuances, the Court reconvened at Respondent's individual merits hearing on July 10, 2009. The Government set forth its position and arguments regarding Respondent's case. The Government contended that because they have charged Respondent with inadmissibility pursuant to section 2 l 2(a)(7)(A)(i)(I) of the Act, the Government must only set forth prima facie evidence that Respondent was a legal pennanent resident seeking readmission into the United States after leaving the country for over 180 days, and then the burden shifts to Respondent to prove that he has not abandoned his legal pennanent resident status. The Government argued that it is Respondent's burden under section 240(c)(2) of the Act to prove that he is admissible to the United States. In response, Respondent reiterated his position that the Government has failed to prove its charge against Respondent because Respondent presented his unexpired 1-551 pennanent resident card al the time of application for admission. Respondent requested that these proceedings be tenninated. The issue before this Court is whether the charge against Respondent is proper in light of the Government's contention that he has abandoned his lawJl permanent resident status. For the following reasons. the Court will not sustain the charge of inadmissibility and will terminate proceedings without prejudice:
II. Law and Analysis
A. Charge of Inadmissibility
The Government has charged Respondent as an arriving alien who is inadmissible under section 2 12(a)(7)(A}(i}(I) o f the Act, as an alien who, at the time ofapplication for admission, was not in possession of a valid entry document. An "arriving alien" is one who applies for admission into the United States. 8 C.F.R. 1 .1 (q). According to section 101(a)(I3)(C) of the Act, an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States unless the alien falls into six distinct categories set fo rth under 101(a}(l3)(C) o f th e Act, including, in relevant port:
''(i) has ubnndoned or relinquished thn1 slntus, [or] (ii) has been absent from the United States for n co n ti nuous period in excess of 180 days .... "
ln the present case, Respondent a dmi tted that he becam e a legal permanent resident on Jun\! 14, 2001. He also admiucd thnt he 11.!I\ the United States in June 2001 and did not return
until April 12, 2007. Therefore, the Court finds that the Government has properly charged Respondent as an "arriving alien," because he is a legal permanent resident who has adminedly been absent from the United States for o continuous period in excess of 180 days
The Govemment's sole charge of inadmissibility against Respondent is that he did not possess a valid entry document in violation of section 2 I 2(a)(7)(A)(i)(l) of the Act. Section 2 l 2(a)(7)(A)(i)(I) of the Act reads in pertinent part: Except as otherwise provided in this Act, any immigrant at the time of application for admission, who is not in possession of a valid unexpired immigrant visa, reentry pennit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passpon, or other suitable travel document, or document of identity and nationality ifsuch document is required under th e regulations ... is inadmissible. Respondent has contested this charge ofinadmissibility because he contends that he presented his unexpired pennnnent resident card at the time he applied for admission into the United States. Throughout the course of these proceedings, two main legal issues have arisen: ( 1) what is the Government's theory regarding the charge of inadmissibility, and (2) has the Government sufficiently proven its charge against Respondent. The Court will discuss both issues below.
B. Burden of Proof
In general, an "arriving alien,, or one who applies for admission to the United States 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). Therefore, in order to overcome a charge ofinadmissibility under section 212(a)(7)(A)(i)(I) ofthe Act, Respondent must provide evidence that, at the time ofapplication for admission, he was in possession of n valid, unexpired entry document such as an 1-551 pennancnt resident card. In the present case, the Government has simply charged Respondent with not being in possession ofa valid entry document at the time ofapplication for admission. However, when pressed, the Government contends that while they have charged Respondent as an alien without valid documents, their ultimate theory of the case is that Respondent has abandoned his lawful pennanent resident status. Essentially, in order to avoid having to carry the burden of proof on a claim ofabandonment under 101(a)( l 3)(C)(i) orthe Act, the Oovemment contends thlll i1 need not formally charge Respondent whh abandonment under IOl(a)(l 3)(C)(I) because it is sufficient lo charge the Respondent with lack of proper documents under IOl(a)(l3)(C)(ll). but then demand that In response he prove that he has not abandoned his lawful permanent resident
status.
Historically, in cases where the Government alleges that an alien abandoned his legal permanent residence, the Government bears the burden to prove abandonment. See Landon v. Plasencia, 459 U.S. 21, 35 ( 1982). More recently, in a case decided after the enactment of the
Illegal Immigration Refonn and Immigrant R esponsibility Act of 1996 ("IIRJRA ), the Ninth Circuit held that when an applicant has a colorable claim to returning resident status, it is the Government that hns the burden to prove the alien is not e ligible for admission to the United States. See Sjngh v. Reno. 113 F.3d 1512, 1514 (9th Cir. 1997). Specifically, the Ninth Circuit held that "[t]he [Government's] burden, therefore, is to establish by clear, unequivocal, and c onvincing evidence that [ the a lien's] status has changed IsL (citing Woodby v. CNS, 385 U.S.
.. ."
276, 277 (1966)). At Respondent's merits hearing on July 10, 2009, after a number of continuances over the course of2 years, the Government appeared before the Court and stated its position that, b ec a use Respondent is an arriving alien, he bears the burden to prove that he has not abandoned his legal pennanent resident status and that he had a valid 1551 pcnnanent resident card at th e time of appl ication for admission. The 00vemment1s posltion attempts to connaie a charge under 10J(a)(l3)(C)(ll) ef the Act with lOl(a)(ll)(C)(i) of the Act. The Court finds the Govemment's position to be In contradiction to precedential case law, as well as established practice and procedure in the Immigrati on Court. If the Government wish es to allege that Respondent abandoned his status, it must do so through a properly filed charging document that clearly sets forth the Oovemments position that Respondent has abandoned his status. The Oovemment may nol charp Respondent with failure to present o valid entry card, but then require Respondent to prove that be has not abandoned his status. To allow th Government to proceed in suc_h a manner would be to allow the Oovemrn ent to circumvent standard p ro cedur e in abandonment cases and inappropriately shift the burden to Respondent.
-
charge ofinadmisslbility at hand, namely that h e was not in possession of a valid entry document
in violat ion of section 212(a)(7)(A)(i)(I) of the Act. If the Government wishes to allege that Respondent hes abandoned his pennanent residence in the United States. the Government must do so with proper charges and then bear the burden to prove abandonment.
C. Su fficien cy of Charge
Therefore, I.he Court fi nd s that Respondent solely bears the burden ta overcome the
As stated above. Respondent bears the burden of proving that he is not inadmissible to the United States. To o verc ome the charge of inadmissibility aga ins t h i m, Res pondent must produce evidence that he was either in possession of or presented a valid unexpired entry document at the time of application for admission.
The record shows, and it is undisputed, that Respondent presented his unexpired I-SS 1 legal pennanent resident card at the time he applied for admission into the United States. See Exh. 4. He therefore had a seemingly vnlid entry document and a colorable claim to returning resident status.
The Government argues that Respondent did not possess a valid entry document because
he was absent from the United States for over I year. Federal regulations state that an alien applying for admission into the United States as a lawful pennanent resident shall present "a val i d unexpired f'onn 1.55 I, Permanent Resident Card, if seekin g readmission after a te mporary absence of less than 1 year." 8 C.F.R. 21 1 . 1 (u)(2). Respondent was admittedly absent from
the United States for over I year; therefore, under federal regulations, his entry document may no longer have been valid. Due to these regulations, Respondent may be Inadmissible as charged. However, federal regulations provide n remedy for those returning residents, such as Respondent, who are unable to present a "valid" enlry document. 8 C.F.R. 2 I l .4(a) stales in relevant part: Pursuant to the authority contained in section 21 l(b} of the Act, an alien previously lawfully admitted to the United States for permanent residence who, upon return from a temporary absence was inadmissible because of failure to have or to present a valid passport, immigrant visa, reentry permit, border crossing card, or other document required at the time of entry, may be granted a waiver of such requirement in the discretion of the district director. Thus, Respondent may obtain a waiver, but he must obtain lhe "2 11 {b)" waiver from the district director of United Slates Citizenship and Immigration Services ("USCIS"}. The Court has no authority to deem Respondent's permanent resident card valid or invalid, as the Court has no authority to issue or take away immigration documents. Respondent must therefore seek a remedy with USCIS. Although this remedy may be available to Respondent, the Government has prevented Respondent from seeking a "2 1 l(b)" waiver because it has placed Respondent in removal proceedings. As Government counsel stated, USCIS will not act on any request from Respondent at this point because Respondent has been placed in removal proceedings. Although federal regulations may render him inadmissible due to his absence for over a year, Respondent's sole avenue to obtain a waiver for this regulatory violation is with USCIS. As Respondent is currently prevented by the Government from exhausting his remedies with USCIS, the Court finds that to proceed further would result in a violation of Respondent's due process rights. 8 C.F.R. 21 l .4(a}. For these reasons, the Court will not sustain the charge of inadmissibility and will tenninate these proceedings without prejudice to allow Respondent to exhaust his remedies with USCIS. Tcnnination without prejudice will permit Respondent to have an opportunity to correct this technical violation while not prejudicing the Government from seeking proper charges in the fulure, if ii becomes necessary.
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