A073 602 922 ght to elze or hs subsequent us trps (. at 3 Tr. at 3-38).
addton e responden
no records corroborang hs p to Washngton D on Aak er he entered e nted States (.. at 3; Tr. at 40). On appeal e respondent asse at e aton udge ade an adverse credlty ndng. Wle e aton Judge descrbed he respondent's tesony as "self-servng she dd not nd hat he lacked credblty (.. at 4). Raher she concluded that he dd not subt sucent evdence to deonsate by clear and convncng evdence tat he s ally present n the nted States pursut to a pror adsson (.. at 4).
secton 240(c)(2)(A) of the Act; 8 .F.R. § 1240.8(c). Sce he queston wheher the respondent was prevouly allowed by ocer to enter the Unted States (ereby eng admted) s ctual n nature we revew he Iaton Judge's ndng r clear eor.
8 .F.R. § 1003. (d)(3)(). We af he holdng that the respondent's teston and suppong adavts/leters of ends d fly e nsufcent to c y hs burden of proof (.J. at 4; E 2 Tabs D-F; E 3 Tabs G-). long ese lnes we obsee hat the supporng stateents only ndcate at the wesses were told of e respondent's ntenton to
to obtan adsson b usng hs drver's lcense and soc secty cd. Ths does not n d o tself show that he wesses had knowledge that the respondent
dong so. Moreover whle he respondent tesed at he lost al relevt documenty evdence he has not expaned hs bly to obtn replaceent docentaton o e travel provders he used (.J. at 4; Tr. at 38-39).
ese crcusces we hold that he graton Judge dd not clely err n ndng that the respondent has not shown by clear and convncng evdence hat he s "lawlly n e nted States pursut to a pror adsson or tt he s "clearl d beyond a dout enttled to be aded to the ted Sates and s not nadssble as charged .J. at 4). Secton 240(c)(2)(A) of e Act; 8 .F.R. § 1240.8(c);
se also Uned Saes
742 F.3d 151 159 (4 r. 2014) (satg that "clear d convncng evdence s hat whch suppos "a belef or convcton wthout hestanc as to the truth of the allegaton sought to be establshed) (nteal uotaon otted). Next the respondent assers that the graton Judge shod have granted adnsave closure because he s e benecary of an approved vsa petton ed on hs behf by s nted Sates ctzen wfe (Fo 13) (E 6). Durng the al heng the respondent's cosel stated hat regulatons provdng r a waver of s unawl presence were nalzed the respondent would ove to recalendar d seek tenaton of tese reoval proceedngs (.. at 4; Tr. at 84-85). The respondent would en re on s own to Ngera d prsue consular processng unndered by an reoval order or other pedent to seekng la staus whle abroad (.J. at 4-5; Tr. at 8485 88-89). ousel reterates s cl on appeal. On he oer hd the Depment of oeld Secty ("DS) ndcated that t opposed adnsatve closure d tenaton (.J. at 5; Tr. at 58 68 8587; DS's 5/3/12 lng). The new rule cted by the respondent on appeal was nalzed any o203.
8 Fed. Reg. 536 (. 3 2013). t expressly contepates a possle grt of adstratve closure whle appcant seeks "unlawl presence provsonal waver tough Fo 60A owed by a reuest r tenaton or dsssa o proceedgs whout prejudce r alens whose waver requests are ultately approved so that the alen (f such tenaton s grted) will not e under a reoval order when he deps r hs mgrt vsa nteew abroad. 2
Cite as: Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)