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Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)

Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for consideration of whether the respondent, a lawful permanent resident, was improperly charged as an arriving alien upon returning from travel abroad in light of the Board's intervening decision in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011 ). The decision was written by by Member Molly Kendall-Clark and joined by Member Ellen Leibowitz and Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for consideration of whether the respondent, a lawful permanent resident, was improperly charged as an arriving alien upon returning from travel abroad in light of the Board's intervening decision in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011 ). The decision was written by by Member Molly Kendall-Clark and joined by Member Ellen Leibowitz and Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Feb 16, 2013
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10/12/2013

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Carbonell, Clarisse3200
NE
2nd AvenueMiami, FL 33137
U.S. Department
of
Justice
Executive Office for Immigration Review
Board
of
mmigration AppealsOffice
of
he Clerk
5107 Leesburg Pike, Suite 2000Falls Church, Virginia 22041
DHS/ICE Office
of
Chief Counsel -MIA333 South Miami Ave., Suite 200Miami, FL 33130Name: LUGO TORRES, DEMETRIO
EN
...A 096-599-329Date
of
this
notice: 1/17/2013
Enclosed is a copy
of
the Board's decision and order in the above-referenced case.Enclosure
Panel Members:Kendall-Clark, MollyLiebowitz, Ellen CGuendelsberger, John
Sincerely,
DcrutLCtVLAJ
Donna Carr
Chief
Clerk
Userteam: Docket
Cite as: Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)
 
r
(
U.S.
Department
of
Justice
Executive Office for Immigration ReviewDecision
ofthe
Board
of
Immigration AppealsFalls Church, Virginia 22041
File: A096 599
329-
Miami, FLDate:In re: DEMETRIO ENRIQUE LUGO-TORRESIN REMOVAL PROCEEDINGSAPPEALON BEHALF OF RESPONDENT: Clarisse Carbonell, EsquireCHARGE:Notice: Sec. 212(a)(6)(C)(i), I&N Act
[8
U.S.C. § 1182(a)(6)(C)(i)]Fraud
or
willful misrepresentation
of
a material fact
JAN
17
2013
Sec. 212(a)(7)(A)(i)(l), I&N Act
[8
U.S.C. § 1182(a)(7)(A)(i)(l)]Immigrant -no valid immigrant visa or entry documentThis matter was last before the Board on December 21, 2011, at which time we dismissed therespondent's appeal from an Immigration Judge's February 16, 2010, decision, sustaining thecharges
of
removability under sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(l)
of
the Immigrationand Nationality Act, 8 U.S.C.
§§
1182(a)(6)(C)(i), 1182(a)(7)(A)(i)(l). On July 16, 2012, theUnited States Court
of
Appeals for the Eleventh Circuit granted the government's motion toremand, vacated our decision, and remanded for further proceedings to determine whether therespondent should have been treated as an applicant for admission or a returning lawfulpermanent resident, and whether the Immigration Judge properly allocated the burden
of
proof.On remand, the respondent filed a brief arguing the Department
of
Homeland Security (DHS)improperly charged him as an arriving alien rather than a returning lawful permanent residentupon his return from a brief trip abroad in 2009, notwithstanding that he was accorded lawfulpermanent resident status on October 23, 2004. Moreover, he asserts the Immigration Judgeerred in placing the burden
of
proof
squarely on the respondent, where the Act states that areturning lawful permanent resident shall not be regarded as seeking an admission unless theDHS proves by clear and convincing evidence that one
of
the grounds specified at section101(a)(l3)(C)
of
the Act, 8 U.S.C. § 1101(a)(13)(C), apply. The respondent also argues theImmigration Judge erred in relying
on
unauthenticated foreign records, and in discounting theevidentiary weight
of
his birth certificate. The DHS did not file a brief on remand.We will remand the record for the Immigration Judge to consider the effect
of
Matter
of
Rivens,
25 I&N Dec. 623 (BIA 2011 ), on this case, and for such further proceedings asmay be appropriate. On remand, the respondent should have the opportunity to raise theevidentiary issues he now asserts on appeal. Accordingly, the record will be remanded. Thefollowing order will be entered.
Cite as: Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)

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