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Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the order of removal and terminated proceedings where the DHS agreed that the respondent was paroled into the country and accordingly eligible to adjust status under the Cuban Adjustment Act, even though he initially entered the country without inspection. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the order of removal and terminated proceedings where the DHS agreed that the respondent was paroled into the country and accordingly eligible to adjust status under the Cuban Adjustment Act, even though he initially entered the country without inspection. The decision was written by Member Edward Grant.

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 leesburg Pike. Suite 2000 Fa/ls Church, Virginia 220.//

Villasana, Sol, Esquire 901 Main St, Suite 6200 Dallas, TX 75202

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Immigrant & Refugee Appellate Center | www.irac.net

Name: TRAVIESO-IZQUIERDO, PABLO

A 087-518-131

Date of this notice: 8112/2013

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

DonrtL ct1AA)
Donna Carr Chief Clerk

Enclosure Panel Members: Grant, Edward R.

schuckec Userteam: Docket

Cite as: Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

U.S. Department of Justice Executive Office for Immigration Review
Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A087 518 131 - Dallas, TX

Date:

AUG 1 2 2013

In re: PABLO TRAVIESO-IZQUIERDO IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Sol Villasana, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Paul B. Hunker Chief Counsel

APPLICATION: Adjustment of status

The respondent, a native and citizen of Cuba, has filed a timely appeal of the Immigration Judge's decision dated December 6, 2012, which pretermitted his application for adjustment of status under the Cuban Adjustment Act and ordered the respondent removed to Cuba. 1 The

respondent has filed a brief on appeal contesting his removability. The Department of Homeland Security (DHS) has filed a response urging that we sustain the respondent's appeal and dismiss the proceedings without prejudice. Accordingly, as both parties seek termination of proceedings, the following orders will be entered.

ORDER:

The respondent's appeal is sustained.

FURTHER ORDER: The order of the Immigration Judge dated December 6, 2012, is vacated.

FURTHER ORDER:

1

The record

reflects that the amended order, correcting the name and alien registration number
Cite as: Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

of the respondent, was served on the parties on December 17, 2012.

UNITED STATES DEPARTMENT O F JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT DALLAS, TEXAS

Immigrant & Refugee Appellate Center | www.irac.net

File:

A087-518-131

December 6,

2012

In the Matter of

PABLO TRAVIESO-IZQUIERDO RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES: Section 212 (a} ( 6) (a) (i) of the Inunigration and Nationality Act, as amended, in that you are an Alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than designated by the Attorney General

A P PLICATIONS: Request for termination of removal proceedings; request for adjustment of status under the Cuban Adjustment Act

ON BEHAL F OF RESPONDENT: SOL VILLASANA, GREEN DRIVE, ROCKWALL, TEXAS 75087 ON B EHALF OF DHS: JOHNSTON L. COUNSEL, DALLAS, TEXAS ALLUMS,

ESQUIRE,

809 VILLAGE

ESQUIRE,

ASSISTANT CHIEF

ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent is a male, He arrived at or near Laredo, of 2008. native and citizen of Cuba.

Texas on or about July or August

He was not then inspected or paroled by an Inunigration

r-·.

Officer (Exhibit 1 ) . On July 19, 2009, Respondent was granted parole by the

Department of Homeland Security (hereinafter referred to as the

Immigrant & Refugee Appellate Center | www.irac.net

Government)

in Laredo,

Texas. 2010,

See Form I-94 (Exhibit 3). the Government served the

On December 22,

Respondent with the Notice to Appear charging him with removability under Section 212(a) (6) (A) (i) and Nationality Act (the Act) On September 24 , (Exhibit 1) . the Respondent appeared before of the Immigration

2012,

the Court with counsel and admitted to factual allegations one, two and three, but denied allegation number four and denied the During the hearing an issue

charge of removal (Exhibit 1) .

arose as to whether the Respondent was paroled as to qualify for adjustment of status under the Cuban Refugee Adjustment Act of 19 6 6. The Court allowed the parties time to brief the issue. On October 24 , 2012, the Respondent submitted a Brief

as to his eligibility for adjustment under the Cuban Adjustment Act. On November 1 9, 2012, the Government submitted a Motion to

Terminate Proceedings. F IN D INGS O F FACT AND CONCLUS IONS O F LAW The Government has filed a Motion to Terminate Proceedings asserting that it is the Government's position that the Respondent's illegal entry does not render him ineligible for adjustment of status under the Cuban Adjustment Act. explained below, As

the Court does not agree with the Government's

A087-518-131

2

December 6,

2012

position and finds that the Respondent is not eligible for adjustment of status under the Cuban Adjustment Act. Given the

Court's conclusions to grant the Government's Motion to

Immigrant & Refugee Appellate Center | www.irac.net

Terminate would be an abdication of the Court's responsibility to exercise his independent judgment and uphold the law, notwithstanding the position of the parties. 1003 . 10(b). See 8 C.F.R.

( Inunigration Judges should exercise their

independent judgment and discretion and may take any action consistent with their authority under the Act and regulations that is appropriate and necessary.) I&N Dec. 289, 284 (1988). See also in re G-N-C-, 22

(8 C.F.R. Section 239. 2(c) presumably

contemplates not just the automatic grant of a Motion to Terminate, but an informed adjudication by the Immigration Judge

or this Board based on an evaluation of the factors underlining the Service motion.) Furthermore, the Court is not inclined to

grant a motion that both ignores the law and is completely at odds with the facts of the case. Accordingly, the Court would

deny the Government's Motion to Terminate Proceedings. EV IDENCE Documentary Evidence The following documents are in the Record of Proceedings and have been considered by the Court. Exhibit 1, the Notice to Appear; Exhibit 2, the

application for employment authorization, Exhibit 3,

the Form I-765;

the receipt of the application for employment

A087-518-131

3

December 6,

2012

authorization; 5,

Exhibit 4,

employment authorization card; Exhibit 6, Exhibit 7,

Exhibit

Respondent's departure record; 2009; 2009.

USCIS interoffice
users

memorandum dated February 3, memorandum dated February 4 ,

interoffice

Immigrant & Refugee Appellate Center | www.irac.net

TESTIMONY/EV IDENCE Testimony by the Respondent Respondent stated that he first entered the United States in July or August of 2008. United States at that time, border. When asked how he entered the "I came through the

he stated,

They brought me through the border because they told me immigration would catch me." When

if I crossed the border,

asked what he meant when he said he "crossed the border, " the Respondent stated that, through Mexico, "I came through Rio Bravo. I came When asked

and then I walked over the road."

whether he walked over the road from Mexico to the United States, the Respondent stated, "Yes." When asked if he has left

the United States since the time he entered in July or August of 2008, Respondent stated, "I have not left." When asked whether

when he walked over the road into the United States from Mexico he entered the United States illegally, "Yes." CREDIB IL ITY After reviewing the Responden t's testimony, finds that the Respondent was a credible witness. candidly and truthfully. the Court Respondent stated,

He testified

A087-518-131

4

December 6,

2012

LEGAL STANDARDS AND ANALYS IS A. Charge Under Section 212(a) (6)(A) (i) of the Act The Respondent argues that the charge under Section

Immigrant & Refugee Appellate Center | www.irac.net

212(a)(6)(A)(i) should not be sustained because he was actually paroled by the Government on July 19, 2009, and thus he is not

an alien present in the United States without being admitted or paroled. However, what the Respondent failed to recognize was

that Section 212(a) (6)(A)(i) may also be sustained against an alien who arrived in the United States at any time or place other than designated by the Attorney General. 212(a) (6)(A)(i). See Section

(An alien present in the United States without

being admitted or paroled or who arrives in the United States at any time or place other than as designated by the Attorney General is inadmissible. ) Here, the Respondent testified that

he simply "crossed over the border" into the United States. When asked whether he entered the United States illegally, Respondent admitted that he had. Accordingly, despite the

Respondent's contention that he was eventually paroled into the United States, the Court finds that the Government has met its

burden of establishing alienage. The Court has also found that Respondent has failed to meet his burden of proof that by clear and convincing evidence that he was lawfully in the United States. The Court also finds

Respondent has failed to meet his burden of proof to establish clearly and beyond a doubt that he's entitled to be admitted and

A087-518-131

5

December 6,

2012

not admissible as charged,

and the Court finds that the evidence

reveals that Respondent entered the United States at a time or place other than designated by the Attorney General.

Immigrant & Refugee Appellate Center | www.irac.net

Furthermore,

as noted below,

the Court also finds that

Respondent was not properly inspected or paroled into the United States on July 19, 212 (a) (6) (A) (i) 2009, thus making the charge under Section

sustainable on that ground as well.

ELIGIBILITY FOR ADJUSTMENT OF STATUS UNDER THE CUBAN REFUGEE ACT Under the Cuban Ad justment Act of 1966, any national

of Cuba or the immediate relative of any Cuban national (including after acquired spouses and children) can apply for

permanent residence in the United States one year after they have been inspected, admitted or paroled into the country if the

alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. The primary issue

here is whether the Respondent met the threshold requirement of being inspected and paroled into the United States so as to make him eligible for adjustment of status under the Cuban Adjustment Act. As an initial matter, it is necessary to clarify the

series of events leading up to the Respondent's eventual parole. As recited in the factual history, the Respondent actually He

entered the United States in July or August of 2008.

admitted during testimony that when he crossed the border in July or August 2008, he did so illegally, i.e. he did not enter

A087-518-131

6

December 6,

2012

the United States at a port of entry and did not present himself at that time to an Immigration officer to be inspected and admitted or paroled. On July 19, 2009, approximately four years

Immigrant & Refugee Appellate Center | www.irac.net

after he had illegally entered the United States, granted parole by the Government in Laredo, Texas.

Respondent was This grant

of parole did not occur upon a subsequent entry by the Respondent. He testified that since his arrival in evaded Thus it

August of 2008 he had not departed the United States.

is evident that the Respondent entered the United States illegally, waited almost a year and then presented himself for Texas. The Court must therefore resolve

inspection in Laredo,

the question of whether Respondent has been properly inspected or paroled so as to qualify him for adjustment of status under the Cuban Adjustment Act. In the Matter of Estrada-Betancourt, the Board

discussed the proper way in which aliens must present themselves for inspections. (Although the Matter of Estrada-Betancourt

took place in the context of expulsion versus exclusion proceedings, the Court finds the Board's analysis instructed as

to the required way in which aliens must present themselves for inspection whereupon they may either be admitted, neither admitted nor paroled.) Betancourt, case, 12 I&N Dec. 191 paroled or

See Matter of Estrada­ Furthermore, in that

(BIA 1967).

three Cuban aliens crossed into the United States from

Mexico near the Rio Grande approximately 20 miles east of

A087-518-131

7

December 6,

2012

Brownsville,

Texas.

See Estrada-Betancourt at 191. Texas,

They then which was

proceeded by car to an airport in Harlingen,

approximately 20 miles from Brownsville and 10 miles inland from

Immigrant & Refugee Appellate Center | www.irac.net

the international boundary.

They were taken into custody at

that time after having been on the United States soil for nearly three hours. The aliens in that case stated that they were in Florida, and that they intended to present See

route to Miami,

themselves for inspection upon their arrival in Miami. Estrada-Betancourt at 192.

I n order to determine whether the aliens in Estrada­ Betancourt should be placed in expulsion or exclusion proceedings, it was necessary for the Board to determine whether

they had effected an entry into the United States and therefore had entered without inspection. The Board pointing to

established precedent held that aliens who do not cross the border at a designated port of entry must proceed directly to the nearest such port for inspection. 194. See Estrada-Betancourt at the Board

Since the aliens in that case did not do so,

held that they had entered without inspection and therefore properly placed in expulsion proceedings. Estrada-Betancourt. Here the Respondent did not cross the border at a designated port of entry. It was therefore incumbent upon him See Matter of

to proceed directly to the nearest such port for inspection. Not only did he fail to proceed directly to a port of entry, he

A087-518-131

8

December 6,

2012

waited a full year before performing this required action. the aliens in Estrada-Betancourt, Respondent here may have

Like

intended later to present himself for inspection after entering

Immigrant & Refugee Appellate Center | www.irac.net

the United States, such inspection.

and in fact, However,

he later did present himself for

inherent in the Board's reasoning

above is the notion that an alien may only be properly inspected under the Act if he presents himself at a port of entry or if an alien does not arrive at a port of entry if he proceeds directly to the nearest port of entry. The aliens in Estrada-Betancourt

also claimed that they intended to eventually present themselves for inspection in Miami. Despite this claim, the Board held

that when the aliens failed to present themselves immediately at the nearest port of entry -- in that case, Brownsville, Texas

it was at that time that they evaded inspection and thus had entered without inspection. Thus, regardless of Respondent's he was not properly inspected he failed to

intentions to later be inspected,

because like the aliens in the case above,

immediately present himself at the nearest port of entry after he entered the country illegally. Respondent therefore could

not have been properly paroled as parole first requires an alien to be inspected. In order to show that he was properly inspected and paroled, Respondent has pointed to the Government's policy

memorandum outlining the procedures that the Government has developed when dealing with certain aliens from Cuba. And those

A081-51.8-1.31.

9

December 6,

2012

memorandums that the Government derives from its field offices should generally exercise favorable discretion to Cuban aliens who are ineligible for adjustment of status under the Cuban

Immigrant & Refugee Appellate Center | www.irac.net

Adjustment Act only as a result of having not been paroled. Respondent's Brief at page two. However, the Government's

See

internal policies are not binding on the Court. M/V Sau Meru, 20 I&N Dec. 592, 595-596 (BIA 1992)

See Matter of (holding that

the Service Operations Instructions are non-binding in proceedings before the Board). Rather, an I mmigration Judge

must exercise his independent judgment and discretion in deciding cases. 8 C. F. R. 1003. lO(b). Accordingly, the Court

will not take into account the Government's policy in determining whether Respondent was inspected or paroled. Finally, the Court recognizes that the Government's

policy toward aliens from Cuba is rooted in sensitive political concerns. Cir. 2011) See United States v. Dominguez, 661 F. 3d 1051 (11th

(noting that political favor for Cuban refugees

achieved official status in 1966 with the passage of the Cuban Adjustment Act followed by changes to legacy INS policy toward Cuban refugees). Although the Government is well within its the

right to tailor its policies in response to such concerns, Court may not likewise entertain such concerns. Thus,

regardless of how favorable Cuban refugees have traditionally have been treated upon arrival to the United States, all persons

attempting to enter the United States are subject to inspection

A087-518-131

10

December 6,

2012

by Irrunigration officers for determination of their right to enter regardless of the ground on which their claim to that right is based. See Estrada-Betancourt, Jutoam, 191 U. S. 12 I&N Dec. 252 at 192

Immigrant & Refugee Appellate Center | www.irac.net

(citing United States v.

(1905)).

A

contrary rule such as one that cannot be limited by time or distance would result in a loss of a comfortable primary inspection. noted, See Estrada-Betancourt at 196. As the Board has

obviously out of chaos out of enforcement of the

irrunigration laws could result from admitting aliens to proceed to inspection points that they believe will best suit their own interests. See Estrada-Betancourt. For the reasons stated above, the Court finds the

Respondent was not inspected and paroled in accordance with the irrunigration laws. Thus, he is not eligible for adjustment of

status under the Cuban Adjustment Act as that statute dictates that only aliens who have been inspected, are eligible to adjust status. In conclusion, admitted or paroled

See Cuban Ad justment Act.

the following order shall be entered. O R DER

IT IS HEREBY ORDERED that the Government's Motion to Terminate Removal Proceedings will be DENIE D; IT IS FURTHER O RDERED that the charge under Section 212(a)(6)(A)(i) of the Irmnigration and Nationality Act is SU STAINED; IT IS FURTHER ORDERED that the Respondent's

A087-518-131

11

December 6 ,

2012

application for adjustment of status under the Cuban Adjustment Act be pretermitted and DENIED; IT IS FURTHER ORDERED that the Respondent shall be

Immigrant & Refugee Appellate Center | www.irac.net

removed and deported from the United States to Cuba on the charge contained in the Notice to Appear.

Pleaae soo tho next page for oloatronia signature

DEITRICH H. SIMS Immigration Judge

AOB?-518-131

12

December 6 ,

2012

//s// Immigration Judge DEITRICH H. simsd on August SIMS

6,

2013 at 8:23 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A087-518-131

13

December 6,

2012

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