Professional Documents
Culture Documents
Department of Justice
Executive Office for Immigration Review
A 012-129-154
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DO>VtL C!tlAA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
File:
Date:
FEB l 8 2015
APPEAL
ON BEHALF OF RESPONDENT:
CHARGE:
Notice:
1182(a)(2)(A)(i)(II)] -
Sec.
Sec.
212(a)(7)(A)(i)(I), l&N Act (8 U.S.C. l 182(a )(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document
The respondent appeals the Immigration Judge's January 3, 2013, decision finding him
removable as charged and ineligible for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. 1255(a). The record will be remanded to the
Immigration Judge for further proceedings consistent with this opinion and for entry of a new
decision.
Upon review of the record, we find that a remand is necessary because there are indicia in the
record that require consideration as to whether the respondent has a claim to United States
citizenship. See section 30l(g) of the Act, 8 U.S.C. 1401 (g). In particular, the information in
the record indicates the respondent's father was a naturalized United States citizen who served in
the United States Air Force for over 20 years (Exhs. 5 and 6).1 The evidence also indicates that
the respondent and his parents lived on various United States Air Force bases in and outside of
the United States and that the respondent himself served in the United States Air Force.2 See id.
The record does not contain any specific information as to when the respondent's father
Notably, during the proceedings, the respondent's attorney stated that the respondent's father
never became a naturalized United States citizen (Tr. at 42). This is in contradiction to the other
1
2 Because the respondent was born in 1960, the required period of residence for a United States
citizen parent under section 301 (g) of the Act is a total of ten years, five of which were after the
age of 14 years. Because this issue was not explored below, the record does not include
evidence establishing when or where the respondent's father lived in the United States and/or on
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
IN REMOVAL PROCEEDINGS
. naturalized. 3 Based on these indicia, and the fact that neither the Board nor the Immigration
Judge has jurisdiction over a United States citizen, we find it provident to remand the record in
order for the Immigration Judge to gather all of the necessary facts to determine whether the
respondent has a valid claim to United States citizenship under section 301 (g) of the Act. See
Holder, 720 F.3d 228 (5th Cir. 2013 ) (The issue of citizenship is
an "essential jurisdictional fact" which is never waived and may be raised at any point in the
id.; see also generally Joseph
v.
ORDER:
roistent
t:r f::
FOR TH BOARD
"
The record shows that the respondent became a lawful permanent resident when he was
approximately 1 year old in 1961 (Exh. 1 ). Thus, it would appear that the respondent's father
and/or mother had some type of status when the respondent was born. Additionally, the record
contains evidence showing that the respondent does not know whether his mother ever became a
naturalized citizen; this issue should also be explored on remand (Exhs. 5 and 6).
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
proceedings ).
File:
January 3,
A012-129-154
2013
In the Matter of
IN REMOVAL PROCEEDINGS
CHARGES:
A P PL ICATION:
( 1) Termination of proceedings.
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:
Suite 01
53-year-old,
married,
Removal proceedings
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
( Exhibit 1) .
The respondent,
through counsel,
factual allegations 1,
( Exhibit 2).
( The respondent's
all of
findings of fact:
On or about May 16,
1961,
1991,
( Exhibit 4).
I find that
The last time the respondent had paid income taxes in the
A012-129-154
January 3,
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
2013
2010,
He
reentry permit,
1993,
to wit:
cocaine.
(Exhibit 8).
On or about April 7,
1993,
the Los Angeles County Court at Pomona for the offense of use
under the influence of a controlled substance,
( Exhibit 9)
to wit:
cocaine.
The
A012-129-15 4
then,
January 3,
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
2013
ORDER
IT IS HEREBY ORDERED that the respondent be removed from
A012-129-154
January 3,
2013
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
{'!!... -
"
A012-1 29-154
Janua.ry 3,
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
2013
\.
..
//s//
LEONARD I.
shapirol on April
23,
A012-129-154
SHAPIRO
2013 at 7:54
PM GMT
Immigration Judge
January 3,
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
2013