P. 1
Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

|Views: 761|Likes:
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal and denial of adjustment of status upon finding the respondent worked for more than 180 days without employment authorization, stating that the mere filing of an adjustment application does not stop the counting of the period of unauthorized employment for purposes of INA 245(k). The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal and denial of adjustment of status upon finding the respondent worked for more than 180 days without employment authorization, stating that the mere filing of an adjustment application does not stop the counting of the period of unauthorized employment for purposes of INA 245(k). The decision was written by Member Roger Pauley.

More info:

Published by: Immigrant & Refugee Appellate Center, LLC on Aug 19, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/12/2013

pdf

text

original

U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5/07 l.eesb11rg Pike, S11i1e 2000 Falls Ch11rch, l'irgi11ia 2204/

RASMUS, DANIEL 510 MARQUETTE AVE., Ste. 200 MINNEAPOLIS,, MN 55402

OHS/ICE Office of Chief Counsel - BLM 2901 Metro Drive, Suite 100 Bloomington, MN 55425

Immigrant & Refugee Appellate Center | www.irac.net

Name: YAV, SOCCHEA Riders:089-665-241 089-665-242 089-665-243

A 089-665-240

Date of this notice: 8/13/2013

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

DOYUtL Cwvu
Donna Carr Chief Clerk

Enclosure Panel Members: Pauley, Roger

williame Userteam: Docket

Cite as: Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

U.S. Department of Justice
Exe<:utive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

Files: A089 665 240 - Bloomington, MN A089 665 241 A089 665 242 A089 665 243 In re: SOCCHEA YAV HUOY HEAK a.k.a. Houy Heak VUOCH LEANG CHEA CHHUN HOUR CHEA IN REMOVAL PROCEEDINGS APPEAL

Date:

AUG

I 3 2013

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENTS: Dan Rasmus, Esquire ON BEHALF OF DHS: Thomas S. Madison Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(l)(B), I&N Act (8 U.S.C. § 1227(a)(l)(B)] In the United States in violation of law (all respondents)

APPLICATION: Adjustment of status

The respondents appeal the Immigration Judge's May 1, 2012, decision denying their applications for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a).1 The appeal will be dismissed. On appeal, the respondents contend that the Immigration Judge erred in finding the lead respondent ineligible for adjustment of status under section 245(a) of the Act as an alien barred by section 245(c) of the Act (l.J. at 2-3). Specifically, the Immigration Judge concluded that the lead respondent is not excluded from the bar of section 245( c) of the Act because he does not meet the requirements of section 245(k) of the Act (I.J. at 2-3). The respondents dispute the Immigration Judge's conclusion that the lead respondent engaged in "unauthorized employment" for a period exceeding 180 days (I.J. at 2-3). The respondents allege that the lead respondent filed his application for adjustment of status within 178 days of the expiration of his R-1 status such that he was employed without authorization for

1 In her May 1, 2012, decision, the Immigration Judge included by reference her prior decisions found at Exhibits 3C, 3D, 4B, and 7A (l.J. at 1). On May 1, 2012, the Immigration Judge also granted the respondents' applications for voluntary departure. All further references to the Immigration Judge's decision refer to her April 11, 2012, decision, unless otherwise specified.
Cite as: Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

A089 665 240 et al.

less than 180 days and that, even if he did engage in activities for his church for over 180 days without authorization, his activities cannot be categorized as "employment." Notwithstanding the respondents' assertions on appeal, we find no reason to disturb the Immigration Judge's decision finding the lead respondent ineligible for adjustment of status based on the reasons cited in her decision (l.J. at 2-3). See 8 C.F.R. § 1003.l(d)(3)(ii) (2013) (de novo review). While the respondents assert that the lead respondent did not engage in unauthorized employment for over 180 days because he filed his application for adjustment of status within 178 days of his visa expiration, we note that the filing of an adjustment of status application does not stop the counting period of unauthorized employment. See USCIS Policy Memorandum, Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act (Neufeld, Acting Associate Director, Domestic Operations, HQDOMO 70/23, July 14, 2008. Rather, an adjustment of status applicant who is employed must demonstrate that any and all employment after his or her last lawful entry is authorized by the USCIS until the application is filed and continuing until his or her status is adjusted. See, e.g., Matter of Dukpa, 18 l&N Dec. 282 (BIA 1981). Pursuant to regulation, an alien engages in "unauthorized employment" unless he or she has employment authorization from the USCIS. See 8 C.F.R. § 274a.12(c)(9). Here, the lead respondent does not dispute that he did not file for employment authorization with the USCIS until July 30, 2008 (l.J. at 3). The lead respondent's visa expired on August 31, 2007; therefore, the lead respondent worked without authorization for almost a year, exceeding the 180-day limit (l.J. at 3). See section 245(k) of the Act. Further, the lead respondent raises on appeal the same arguments raised before the Immigration Judge regarding the issue of whether the activities he engaged in from August 31, 2007, through July 30, 2008, with his church constitute "employment" (l.J. at 3). As found by the Immigration Judge, the lead respondent admittedly received remuneration from his church in exchange for his work in the form of room, board, and basic necessities (l.J. at 3; Exh. 2A). Pursuant to regulation, "compensation" includes room and board (l.J. at 3). See 8 C.F.R. § 214.2(r)(l1). Further, even though the compensation was not proportional to the value of the services, it was nevertheless paid in exchange for the lead respondent's services (l.J. at 3). See Matter of Hall, 18 l&N Dec. 203 (BIA 1982); see also Matter of Bennett, 19 I&N Dec. 21 (BIA 1984). Thus, the lead respondent is ineligible for adjustment of status (l.J. at 3). See section 245(c) of the Act. Finally, the record reflects that the respondents were each granted a 60-day period of voluntary departure conditioned upon the timely posting of a $500. The record also reflects the respondents were provided all the necessary advisals in this regard. See Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). The respondents have not provided evidence to the Board that they timely filed the required bonds. See id. Thus, the Board cannot reinstate the voluntary departure periods and the Immigration Judge's alternate order of removal shall become effective. See id. Accordingly, the appeal will be dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

2
Cite as: Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

.

.

A089 665 240 et al.

ORDER: The appeal is dismissed, and the Immigration Judge's alternate order of removal shall become effective.

FOR THE BOARD

oc::::::

Immigrant & Refugee Appellate Center | www.irac.net

3
Cite as: Socchea Yav, A089 655 240 (BIA Aug. 13, 2013)

UNITED STATES DEPARTMENT OF JUSTIC E EXEC UTIVE OFFIC E FOR I MMIGRATION REVIEW UNITED ST ATES IMMIGRATION C OURT BLOOMINGTON, MINNESOT A

Immigrant & Refugee Appellate Center | www.irac.net

File:

A089-665-240

In the Matter of

/\08 '1-tDVJs- �'IIJ )I/

(_}�Gt_) iJ)q3
) ) )

May 1, 2012

SOC C HE A YAV 1

.e4 . a..P,

IN REMOVAL PROC EEDINGS

RESPONDENT

)

C HARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

D AN R ASMUS

THOMAS M ADISON

ORAL DEC ISION OF THE IMMIGRATION JUDGE Upon the basis of the respondents' admissions, I have

determined that the respondents are subject to removal on the charge in the Notices to Appear. Respondents have made The

application for voluntary departure in lieu of removal.

C ourt has determined respondents are ineligible to adjust status under Section 245(k) . The C ourt incorporates by reference the 4B, 3C and 30.

written decision in Exhibits 7A,

ORDER IT IS HEREBY ORDERED that the respondents be granted voluntary departure at the conclusion of removal proceedings

Immigrant & Refugee Appellate Center | www.irac.net

under Section 240(B) (b)

of the Act, in lieu of removal without 2012.

expense to the Government on or before June 30,

IT IS FURTHER ORDERED that each respondent post a voluntary departure bond in the amount of $500 each with the Department of Homeland Security within five business days. IT IS FURTHER ORDERED that the respondents shall provide to the Department of Homeland Security their passports or other documentation sufficient to assure lawful entry into the country to which the alien is departing within 60 days of this order or with any time extensions that may be granted by the DHS. IT IS FURTHER ORDERED that if any of the above ordered conditions are not met as required, or if respondents fail to

depart as required, the above grant of post-conclusion voluntary departure shall be withdrawn without further notice or proceedings, and the following order shall become immediately effective� Respondents shall be removed to C ambodia on the charge in the Notices to Appear. Respondents are hereby advised that within the

if they fail to voluntarily depart the United States,

time specified, respondents will be subject to a civil monetary penalty of not less than $1,000 and not more than $5,000, and

A089-665-240

2

May 1,

2012

(

the C ourt sets the amount at $3, 000 each.

Additionally

respondents would be ineligible for a period of 10 years to receive cancellation of removal, adjustment of status, voluntary departure, registry,

Immigrant & Refugee Appellate Center | www.irac.net

or a change in non-immigrant status.

Respondents are further advised that if they appeal this decision, respondents must provid e to the Board of Immigration Appeals within 30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond. The Board will not reinstate the voluntary departure period in its final order if respondents do not submit timely proof to the Board that the voluntary departure bond has been posted. The respond ents are further advised n ot appeal this d ecision, or reconsider, and that if they d o

instead file a motion t o reopen, the period or

during the voluntary departure period,

allowed for voluntary departure will not be stayed,

tolled,

extend ed , the grant of voluntary d eparture will be terminated automatically. immediately, voluntarily, The alternate order of removal will take effect

and the above penalties for failing to depart will not apply.

IT IS FURTHER ORDERED that respondents application for ad justment of status under Section 245 of the Act be denied.

KRISTI N W.

O LMANSON

Immigration Judge

AOB9-665-240

3

May 1,

2012

\

'

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE
KRISTIN W. OLMANSON, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

SOCCHEA YAV

A089-665-240

BLOOMINGTON,

MINNESOTA

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

TUJUANA T.

TULL

(Transcriber) Inc.

DEPOSITION SERVICES, JUNE 22, 2012

(Completion Date)

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->