U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 Leesb11rg Pike. S11i te 2000 Falls Cl111rch, Virginia 220./ I

Abdelhadi, Husein A., Esq. Abdelhadi & Associates, P.C. 4144 N. Central Expy, Suite 1210 Dallas, TX 75204-0000

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: MUASHER, DINA ISSA

A 079-000-609

Date of this notice: 8/13/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DOrutL cf1tVt.J
Donna Carr Chief Clerk

Enclosure Panel Members: Miller, Neil P.

lulseges Userteam: Docket

Cite as: Dina Issa Muasher, A079 000 609 (BIA Aug. 13, 2013)

. U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A079 000 609 - Houston, TX

Date:

AUG 1 3 2013

In re: DINA ISSA MUASHER a.k.a. Dina Issa Michail Al Muasher IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Husein A. Abdelhadi, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Iram Hafeez Assistant Chief Counsel

APPLICATION: Reopening

The respondent has filed a motion to reopen. She acknowledges that the motion is untimely but requests that the Board reopen proceedings sua sponte.
See 8 C.F.R. 1003.2(a).

The

Department of Homeland Security has filed an opposition to the motion, and the respondent has filed a reply. Proceedings will be reopened and the record will be remanded. The record shows that the Board's final decision in this matter was based on a factual error. The respondent argued on appeal that the Immigration Judge erred in requiring her to qualify for a waiver under section 2 l 2(i) of the Immigration and Nationality Act to be eligible for adjustment of status.
See 8 U.S.C. 1182(i).

The respondent argued that she never made a

material misrepresentation that required her to qualify for the waiver. The Board's decision found that the transcript showed the respondent admitted the misrepresentation during her testimony. However, the Board's decision relied on an incorrect citation to the testimony of the respondent's mother (Tr. at 13-15), who eventually withdrew her application and accepted voluntary departure. The respondent's case was severed from her mother's case and a new hearing was set (Tr. at 47). Because the Board's final order relied on an incorrect factual finding, we will vacate that order. Furthermore, the record shows that the Immigration Judge did not sufficiently explain why the respondent was inadmissible under section 212(a)(6)(C) of the Act, and therefore needed a section 212(i) waiver to adjust her status. Section 212(a)(6)(C) of the Act provides that an alien is inadmissible if he or she, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act. The respondent, who was found to be credible (I.J. at 12), testified that she did not willfully misrepresent any information to any of the immigration officials with whom she spoke, either at the border when she was 16 or 17 years old, or during her adjustment of status interview (Tr. at 66-71, 81-86). Moreover, the Immigration Judge specifically stated that the court would give the respondent's testimony "full weight" and also would "accept the respondent's explanation as to the misunderstanding or misinformation during her interview with immigration officials relating to an application for adjustment of status" (I.J. at 12). We find no clear error in the Immigration

Cite as: Dina Issa Muasher, A079 000 609 (BIA Aug. 13, 2013)

17

A079 000 609

Judge's positive credibility finding. See 8 C.F.R. 1003.l(d)(3). Furthermore, the Immigration Judge reasonably accepted the respondent's explanations concerning her encounters with immigration officials. Given the respondent's credible testimony, the record does not establish that the respondent is inadmissible under section 212(a)(6)(C) of the Act or that she was required to qualify for a waiver under section 212(i) of the Act. Under the circumstances, we will reopen proceedings sua sponte and will remand the record 1 for further proceedings on the respondent's adjustment of status application.

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: Proceedings are reopened pursuant to 8 C.F.R. 1003.2(a). FURTHER ORDER: The Board's decisions dated October 10, 2006, and February 9, 2011, are vacated. FURTHER ORDER: The record is remanded to the Immigration Judge for further

proceedings not inconsistent with the foregoing opinion and for the entry of a new decision.

N&, Q,

FoR THE BOARD

Q l----

The Immigration Judge's decision states that the charges in the Notice to Appear were conceded. However, we have been unable to locate evidence in the record that the charges were conceded. The respondent was charged under section 212(a)(6)(A)(i) of the Act (present without admission or parole or having arrived at a time or place other than as designated by the Attorney General). However, a significant part of the respondent's hearing focused on the respondent's statements to immigration officials when she presented herself for inspection at the border in Buffalo (I.J. at 3-4). On remand, the Immigration Judge shall address this issue. We note that the respondent appears to have applied for adjustment of status under section 245(i) of the Act, and not section 245(a) (Tr. at 63). See 8 U.S.C. 1255(a), (i). An application under section 245(i) would be required for an alien inadmissible under section 212(a)(6)(A)(i) of the Act.
2

Cite as: Dina Issa Muasher, A079 000 609 (BIA Aug. 13, 2013)