A090 661 830Sometime aer the esponden eceived staus as a lawl peen esident, he ed aapplicaion nauralizaion wh United Saes Ciizenship and miaion Seices("USCIS)Alhoughhe applicaion isef is no in the recod, he OHS submied the denialissued by he Disic Direcor on Novembe 19, 2008 (Exh. 3, Tab C). ile acknowledgingtha the esponden eceived a peanen residen cad, e Disic Direco sated tha thee aeno docuents on ecod showing how and why he was aned stats a a law peaentesident (Exh 3, ab C). he Distic Directo he sated hat during a naaitioninteiew on Augus 2 2007 the esondent tesied that he had never ere used y naesesides Ruben Diaz (Exh. 3, a C). A susequen USCIS investigaion evealed theesponden's Api 20, 1986 eny ino the United States withou inspecion, using the name"BartoioDi (Exh. 3, Ta C).The Disric Diecto hus concluded ta e esondenwilly gave false staements unde oah duing his Augus 2, 2007, ineview o otainimmiaion enes (Exh. 3 Ta C). As a esult, he Disict Diecor concuded that heesponden did not esalish his e identiy o the good oa chaace equired o nauraie a United Saes citizen (Exh. 3, Tab C).The denia of he respondents apication natualization led o te comenceent of theinstant emoval poceedings wth he seice of a Noice to Appear on Jan 29, 2009 (Exh. 1)he mmiaion Judge held tha the OHS had proven emovailiy a chged (.J. a ).
8 C.F.R. § 1240.8(a) (he OHS bes he uden of poving reovailiy by cle d convincingevidence). He her und ha he espondent did not esablish ha he "was oheriseadmissible o the Unied Saes pusu to secion 237(a)()(H) of he Ac when he came o theUnied Saes using the ne "Baolio Diaz o when he adjused saus as uben Diaz onMch 9, 1990 (.J. a 2-3).
8 C.F.R. § 1240.8(d) (e esonden bears the burden of povingeigiiliy r eief om emoval). n addiion, he migation Judge concluded tha theesponden does no wan a voae execise of disceion due to his use of a lse nme addenial of having done so (J at 3) Theee, he denied the resonden's applicaion r a section 237(a)()(H) waivernappeal, the responden gues ha he is eligibe a waive pusuant to secion237(a)(l)(H) of the Act (esondens Bief a 1525). To eceive such a waive, alien mushaveeen admied o he United Saes
section 237(a)()(H) of he Ac (saing tha thewaive is avaiable "[t]he ovisions of this aaph elating o he eoval of aiens withinthe Unied States on he ound tha hey wee inadmissible at the ime of adissionas aliensdescrie in secion 212(a)()(C)(i));
aer of Fu,
23 & N Dec. 985, 988 (BIA 206) (holdingtha secon 237(a)()(H) authoizes a waiver of emovability unde secion 237(a)()(A) edon a chge of inadmissibility under secion 22(a)(7)(A)(i)(I) of the Ac) We thus view heesondent as impliciy chalenging the holding ha the DS has poven removaiiy unde secions 22(a)(6)(A)(i) ad 22(a)()(C)(i) of the Act, which woud e aoriate chages inhe case of an alien who has not been aditted to the Unied States.We eview tislegalquestion de novo.
8 C. § 3.d3ii)As discussed aove, the esonden pesented evidence of awl admission in the m of a awl peen esiden c issu o Ruben Diaz on Mch 9, 990 (Exh. 6, Tab A a 6). Inhe deia of he espondens apication r naaliaion, the Distric Dieco acknowedgedhe esponden's eceip of his peanent esiden cad (Exh. 3, Tab C. Ahough he DisictDiector ud no docen estaishin how d wh the esonden was aned satus she
Cite as: Ruben Dario Diaz, A090 661 830 (BIA Aug. 14, 2013)