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Rodrigue Laventure, A018 098 964 (BIA Aug. 2, 2013)

Rodrigue Laventure, A018 098 964 (BIA Aug. 2, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) affirmed without opinion an immigration judge's finding that the respondent, who was admitted as a lawful permanent resident in 1968, did not carry his burden of proving that he derived citizenship from his mother prior to her death. The decision was issued by Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) affirmed without opinion an immigration judge's finding that the respondent, who was admitted as a lawful permanent resident in 1968, did not carry his burden of proving that he derived citizenship from his mother prior to her death. The decision was issued by Member Elise Manuel.

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Bernard, P. Helder, Esq.

195-53 N.W. 2nd Avenue, Ste 209
Miami, FL 33169-0000
Name: LAVENTURE, RODRIGUE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 l.eesb11rg Pike, S11ite 2000
Fals C111rc1. Vrginia 2 204 /
OHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 018-098-964
Date of this notice: 8/2/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
DO c tA
Donna Carr
Chief Clerk
williame
Userteam: Docket
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Cite as: Rodrigue Laventure, A018 098 964 (BIA Aug. 2, 2013)
LAVENTURE, RODRIGUE
A018-098-964
WORCESTER COUNTY JAIL
5022 JOYNER ROAD
SNOW HILL, MD 21863
Name: LAVENTURE, RODRIGUE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
510 7 Leesburg Pike, Suite 2000
Fal.� C111rc1. Virginia 21041
OHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 018-098-964
Date of this notice: 8/2/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be
removed fom the United States or affrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
Dc c tA
Donna Carr
Chief Clerk
williame
Useream: Docket
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Cite as: Rodrigue Laventure, A018 098 964 (BIA Aug. 2, 2013)
U.S. Department of Justice
ExeGutive Ofce fr Immigration Review
Decision of the Board oflmmigation Appeals
. Falls Church, Virginia 22041
File: AO 18 098 964 - Baltimore, MD
In re: RODRIGUE LA VENTURE
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: P. Helder Berard, Esquire
ON BEHALF OF DHS: Carrie E. Johnston
Senior Attorey
AUG - 2 2013
ORDER: The Board afrs, without opinion, the result of the decision below. The
decision below is, therefre, the fnal agency determination. See 8 C.F .R. § I 003 .1 ( e )( 4 ).
FOR THE BOARD
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Cite as: Rodrigue Laventure, A018 098 964 (BIA Aug. 2, 2013)
\ •
UITED STATES DEPATMENT OF JUSTICE
EXECUTI' OFFICE FOR IMMIGRATION REVIEW
IMIGRTION COUT
31 HOPK�NS PLAZA, ROOM 440
BAL�IMORE, M 21201
LAW OFFICE OF ELIZAETH AU LAWRENCE, LLC
LWRENCE, ELIZABETH AUOLUWAPO
200 EAST LEXINGTON STREET SUITE 711
BALTIMORE, MD 21202
Date: Mar 13, 2013
File AOlS-098-964
In the Matter of:
LAVENTURE, RODRIGUE
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
You are granted until to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until to submit a
,
� brief in opposition to the appeal.
�J�- Enclosed is a copy of the order/decision of the Immigration Judge.
All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
Sincerely,
Immigration� lerk
cc: OHS, ICE, OFFICE OF THE CHIEF COUSEL
31 HOPKINS PLAZA 16TH FLOOR
BALTIMORE, MD 212010000
UL
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(
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRA Ti ON COURT
BALTIMORE, MARYLAND
I THE MATTER OF IN REMOVAL PROCEEDINGS
LA VENTURE, Rodrigue
RESPONDENT
CHARGE:
APPLICATIONS:
A# 018-098-964
Section 237(a)(2)(A)(iii) of the of the Immigration and Nationality
Act (Act" or "INA"), as amended, in that, at any time afer
admission, you have been convicted of an aggravated felony as
defned in section 101(a)(43)(G) of the Act, a law relating to a
thef ofense (including receipt of stolen property) or burglary
ofense fr which the term of imprisonment at least 1 year was
imposed.
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as
amended, in that, at any time afer admission, you have been
convicted of two crimes involving moral turpitude not arising out
of a single scheme of criminal misconduct.
Derivative Citizenship claim
APPEARANCES
ON BEHALF OF RESPONDENT
Elizabeth Anu Lawrence, Esq.
ON BEHALF OF THE DHS
Joseph Edlow, Esq.
200 E. Lexington Street, Suite 711
Baltimore, Maryland 21202
Assistant Chief Counsel
31 Hopkins Plaza, 16th Floor
Baltimore, Maryland 21202
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I. Statement of the Case
INTERIM DECISION
The respondent is a native of Haiti, bor June 23, 1954. He was admitted to the United
States aound September 4, 1968. See Exhibit 1. On Novel
!
ber 20, 2012, the Department of
Homeland Security ("DHS") placed him into removal proceedings though the issuance of a
Notice to Appear ("NT A"). Id.
The NTA alleges that: (1) the respondent is not a citizen or national of the United States;
(2) the respondent is a native and citizen of Haiti; (3) the respondent was admitted to the United
States at or near San Juan, Puerto Rico on or about September 4, 1968 as a SA I lawfl
permanent resident; (4) the respondent was, on February 29, 1996, convicted in the Circuit Court
[at] Baltimore City, Maryland fr the ofense of Burglary First Degree in violation of Article 27
Section 29 Annotated Code of Maryland; (5) fr this ofense, the respondent was sentenced to
two years' incarceration; (6) the respondent was, on May 24, 2001, convicted in the Circuit
Court [at] Baltimore City, Maryland fr the ofense of Thef; Less than $500, in violation of
Article 27 Section 340 Annotated Code of Maryland; and (7) these crimes did not arise out of a
single scheme of criminal misconduct. Id. The NT A, therefre, charges him with removability
pursuant to INA§§ 237(a)(2)(A)(iii) ad 237(a)(2)(A)(ii). Id.
At the December 19, 2012 hearing, the respondent, through counsel, admitted allegations
2-7, but contested allegation 1. His counsel asserted that the respondent could be a United States
citizen because he derived citizenship fom his mother, a naturalized United States citizen, and if
so, he could not be removed. However, counsel indicated that she needed time to frther review
the record. Accordingly, the Court continued the case.
During the January 23, 2013 hearing, the respondent, through counsel, frther asserted
that he derived citizenship via his mother. He acknowledged that he was admitted into the
2
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(
United States in 1968. Upon a request fom DHS, the Court reset another heaing date to allow
the goverent to frther review the record.
At te February 6, 2013 hearing, DHS acknowledged that it received a copy of the
respondent's mother's United States passport and submitted that it was not contesting whether
she was naturalized. Furthermore, DHS noted that the existence of the respondent's mother's
United States citizenship alone was not enough to address the respondent's derivative citizenship
claim. Accordingly, the Court peritted the goverent to fle a brief on the respondent's
derivative citizenship claim, and the respondent fled a response to the same.
II. Evidence Presented
The fllowing exhibits were received by the Court, but have not been admitted into evidence:
Exhibit 1:
• Notice to Appear, dated November 20, 2012
Exhibit 2:
• DHS Brief on Derivative Citizenship, received February 13, 2013
Exhibit 3:
• Respondent's Brief in Support of Derivative Citizenship, received February 15, 2013,
Tab 1
o Tab 1: Copy of the respondent's mother's United States passport
III. Statement of Law and Findings of the Court
The Court has considered the entire record careflly, including the arguments of both
parties, the evidence of record, and the applicable law. Therefre, the Court's decision now
fllows. For the fllowing reasons, the Court fnds that the respondent has not satisfed his
burden to prove that he derived citizenship fom his mother. See Matter of A-M-, 7 I&N Dec. 332
(BIA 1956). Therefre, the respondent has been properly placed into removal proceedings.
3
�ºt% T �··-
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It is well settled that when an alien is bor abroad, but claims United States citizenship,
the alien bears the buden of proof to demonstrate such citizenship. Id.
Here, the record is clear that the respondent was bor in Haiti on June 23, 1954 and that
his parents were also Haitian.
1
See Exhibit 1; see also Exhibit 2 and 3. He was also admitted into
the United States as a lawfl permanent resident on September 4, 1968. See Exhibit 1. The
parties do not contest whether the respondent's mother was a naturalized United States citizen, as
there is a copy of the mother's United States passport in the record.
2
See Exhibit 3, Tab 1.
Furthermore, both parties agree that the relevant statute at issue is frmer INA§ 321(a), 8 U.S.C.
§1432(a), repealed by the Child Citizenship Act of 2000 ("CCA"), because the respondent tured
eighteen-years-old befre the CCA took efect. The relevant statutory language is as fllows:
(a) a child bor outside of the United States of alien parents, or of an alien
parent and a citizen parent who has subsequently lost citizenship of the
United States, becomes a citizen of the United States upon flfllment of
the fllowing conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased;
or
(3) The naturalization of the parent having legal custody of the child when
there has been a legal separation of the parents or te naturalization of the
mother if the child was born out of wedlock and the paternity of the child has
not been established by legitimation; and i
( 4) Such naturalization takes place while said child is under the age of 18
years; and
(5) Such child is residing in the United States pursuant to a lawful admission
fr permanent residence at the time of the naturalization of the parent last
naturalized under clause (2) or (3) of this subsection, or thereafer begins to
reside permanently in the United States while under the age of 18 years.
Emphasis added.
While not entirely clear, the record also seems to indicate that the respondent's parents were married when he was
bor.
The Court recognizes that the respondent's mother's passport demonstrates that she was a naturalized United States
citizen, however, the Court notes that such evidence does not prove when she was naturalized, only that at some
point she became a United States citizen.
4
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The respondent concedes that subsections (1) and (2) are not applicable in this
instance. See Exhibit 3 at p.2. However, the respondent's brief asserts that subsections
3-5 do apply.
3
Accordingly, the Court will address these arguments in tum.
4
Respondent's motler i a naturalzed citizen
As an initial matter, per the first clause of subsection 3, the Court notes that
there is no dispute as to whether the respondent's mother was a naturalized citizen. See
Exhibit 3 at 3; see also Exhibit 2 at 5. There is also no dispute that the respondent's
mother is now deceased; however, the respondent submits that his mother entered te
United States in 1965 and was naturalized in 1970. Id. As previously noted, there is a
copy of the respondent's mother's United States passport in the record, indicating that
she was a natralized citizen. Not only does this evidence not demonstrate when she
was naturalized, the respondent filed to produce any other evidence demonstrating
when his mother was naturalized.
Legal custodv
Next, the respondent submits his mother had fll legal custody of him because
his fther fled fr divorce in Haiti. See Exhibit 3 at 3. The respondent asserts that
altough he, his fther and siblings entered the United States on the same day to join his
mother in 1968, the mother and fther later developed marital problems, resulting in the
fther leaving the mother to retur to Haiti. Id. The respondent frther contends that a
cour in Haiti granted his fther a divorce decree and that pursuant to the principle of
comity, such a decree should receive fll faith and credit in this instance. Id. Yet, the
There is no dispute that per subsection 5 of the statute, the respondent entered the United States at furteen-years­
old on September 4, 1968 a a lawfl penanent resident. See frmer INA § 321 (a)(5).
¯
The Court notes that i this instance, in order fr the respondent to have a successfl derivative citizenship claim
he must satisf subsections 3, 4 and 5. These statutory requirements are conjunctive in nature and not disjunctive as
subsections 1 and 2. See fner INA § 32l{a).
5
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relevant part of subsection 3 clearly indicates that a child derives citizenship when "the
naturalization of the parent having legal custody of the child [occurs] when there has
been a legal separation of the parents . .. . " Former IA§ 321(a)(3) (emphasis added).
Here, the respondent ha filed to provide any proof of his parents' legal
separation or divorce, and he even concedes that "[he] does not have a copy of his
paent's divorce decree." See Exhibit 3 at 3. Furthermore, there is no evidence of a
legal separation. Legal separation has been defned as "a frmal, judicial alteration of
the marital relationship," Nehme v. INS, 252 F.3d 415, 425-26 (5th Cir. 2001);
"Domestic relations law in the United States treats 'legal separation' as the judicial
suspension or dissolution of a mariage," Wedderburn v. INS, 215 F.3d 795, 799 (7th
Cir. 2000). There is no evidence that there was a judicial alteration or suspension to the
respondent's parents' marriage, as merely abandoning the fmily alone, does not
constitute a dissolution or judicial marital alteration. Therefre, the respondent filed to
satisfy this prong and cannot demonstrate his derived citizenship through his mother.
Respondent wa under eigliteen-vears-old
While the Court fnds that the respondent filed to satisfy the afrementioned
clause, the Court also fnds that the respondent cannot demonstrate the furth
subsection, that his mother's naturalization took place while he was under eighteen­
years-old. See Former IA §321(a)(4). Outside of mere argument, the respondent has
provided no proof as to when his mother was naturalized; much less that such
naturalization occurred when he was under eighteen-years-old as mandated by the
statute: "(4) [s]uch naturalization takes place while said child is under the age of 18
years." Id. The respondent merely posits that he and his brother attended their mother's
6
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naturaliztion ceremony in 1970 when he was sixteen-years-old. See Exhibit 3 at 3.
Furthermore, the respondent's mother's passport was issued in 1996, approximately
frty-two years afer the respondent's 1954 birth year. See Exhibit 3, Tab 1. Thus, the
respondent was well beyond eighteen-years-old when this pasport wa issued.
Therefre, the respondent has filed to prove that he derived citizenship through his
mother.
Respondent ha resided pursuant to a lawful admision
There is no dispute that per frmer IA§ 321(a)(5) that the respondent entered the
United States at furteen-yeas-old on September 4, 1968 as a lawfl permanent resident.
IV. Conclusion
The respondent ha filed to satisf the applicable statutory requirements to establish his
derivative citizenship claim. He has only profered a copy of his mother's United States passport
with a 1996 issuance date, which fails to indicate when she was naturalized and whether he was
under eighteen-years-old at the time. Furthermore, there is no proof that his parents were ever
legally separated or divorced, and the respondent has acknowledged the lack of such proof.
Accordingly, he has filed to meet his burden of proof to establish his derivative citizenship
claim. Therefre, the respondent has been properly placed into removal proceedings.
.-c?- r3
Date
7
�uQ Q ,- D'V ;osland
United States Immigration Judge
Baltimore, Maryland
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND
File: A018-098-964
In the Matter of
March 13, 2013
RODRIGUE LAVENTURE
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: The charges are a violation of Section 237(a)(2)(A)(iii) and
237(a)(2)(A)(i) of the Immigration and Nationality Act.
APPLICATIONS: There is no application for relief before the Cour.
ON BEHALF OF RESPONDENT: ELIZABETH LAWRENCE
ON BEHALF OF OHS: CARRIE E. JOHNSTON
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a citizen and national of Haiti. He was placed in
removal proceedings in a Notice to Appear dated November 20, 2012. It was filed with
the Immigration Cour.
The respondent appeared at master calendar and admitted the allegations
in the Notice to Appear. The Government submited conviction documents and the
Cour finds that the Government has shown by clear and convincing evidence based on
the admission of the respondent and based on the conviction documents, that the
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respondent is removable as charged.
The respondent raised a question through counsel of having derivative
claim to U.S. citizenship. The documents were fled which the Cour has considered
and the Cour entered a writen decision today which is incorporated by reference
finding that the respondent has not met his burden of proof of showing derivative
citizenship.
Counsel for respondent was asked if respondent had any relief that he
would be seeking other than a claim to derivative citizenship. The respondent's counsel
indicated that he does not but he is continuing to pursue proof that he has derivative
U.S. citizenship. The Cour declined to grant a furher continuance on that issue and
based upon the failure of the respondent to fle any application for relief and based upon
the finding that the respondent is a citizen or national of Haiti and not a citizen and
national of the United States. The respondent is ordered removed from the United
States for violating the to sections of the Immigration and Nationality Act law as
indicated.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the
United States to Haiti.
signature
A018-098-964
Please see the next page for electronic
DAVID W.CROSLAND
Immigration Judge
2 March 13, 2013
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/Isl/
Imigration Judge DAVID W.CROSLAND
crosland on May 15, 2013 at 1:44 PM GMT
AOlB-098-964 3
(
March 13, 2013
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CERTIFICATE PAGE
I hereby cerif that the atached proceeding before JUDGE DAVID
W.CROSLAND, in the matter of:
RODRIGUE LAVENTURE
A018-098-964
BALTIMORE, MARYLAND
was held as herein appears, and that this is the original transcript thereof for the fle of
the Executive Ofce fr Immigration Review.
JESSICA L. PINEDA (Transcriber)
DEPOSITION SERVICES, lnc.-2
MAY 4, 2013
(Completion Date)
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