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Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)

Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal against the respondents and denied their claim that the government was equitably estopped from removing them from the country based on the lead respondent's receipt of a notice from USCIS erroneously stating that an application to adjust to permanent resident status had been granted and that he was authorized to work in the country. The decision was written by Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal against the respondents and denied their claim that the government was equitably estopped from removing them from the country based on the lead respondent's receipt of a notice from USCIS erroneously stating that an application to adjust to permanent resident status had been granted and that he was authorized to work in the country. The decision was written by Member Michael Creppy.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 22, 2013
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RYAN FITZPATRICK

Interfaith Legal Serices
4158 Lindell Boulevard
Saint Louis,, MO 63108
Name: QURESHI, FARZAD SAEED
Riders:098-144-821
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesb11rg Pike. S11ite 2000
Falls Ch11rc1, l'irginia 220. I
OHS
/
ICE Ofice of Chief Counsel - KAN
2345 Grand Blvd., Suite 500
Kansas City, MO 64108
A 098-144-820
Date of this notice:
8
/14/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Creppy, Michael J.
Sincerely,
DO c t.
Donna Carr
Chief Clerk
schuckec
Userteam: Docket
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Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)
W
. .
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 2204 l
Files: A098 144 820-Kansa City, MO
A098 144 821
In re: F ARZAD SAEED QURSHI
UZMA FARZAD
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENTS: Ryan T. Fitzpatick, Esquire
ON BEHALF OF DHS: Jayme Salinadi
Acting Deputy Chief Counsel
CHARGE:
AUG
14 2013
Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a)(l)(C)(i)] -
Nonimmigant - violated conditions of status (both respondents)
Lodged: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -
In the United States in violation of law (bot respondents)
APPLICATION: Adjustent of status
Te respondents, natives and citizens of Pakistan, appeal fom an Immigation Judge's
October 13, 2011, decision denying their motion to reconsider an order of removal entered on
August 18, 2011, which fund them removable as charged and ordering them removed. The
appeal will be dismissed.
We review the fndings of fct, including determinations of credibility, made by the
Immigation Judge under a "clearly eroneous" standad. 8 C.F.R. § 1003.l(d)(3)(i). We review
all other issues, including whether or not the parties have met the relevant burden of proof, and
issues of discretion, under a de novo standad. 8 C. F. R. § 1003. l (d)(3)(ii).
On August 18, 2011, the Immigration Judge issued a order fnding the respondents, a
husbad and wife, removable as charged and on October 13, 2011, ordered the respondents
removed as they had filed to demonstrate eligibility fr any relief fom removal. In this sae
order the Immigation Judge denied the respondent's motion to reconsider the removabilit
fnding. We consider the Immigration Judge's second order to be te fnal order of removal in
this cae and consider the appeal of the removability deterination as well as the other issues
raised by the respondent.
Te husband, who is the lead respondent in this cae, entered the United States as a
nonimmigant and was authorized to work in this county until November 1, 2005 (Exh. I; Tr. at
19, 23). He admits working beyond this period (Tr. at 43-46). On June 9, 2004, the lead
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Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)
4
.
A098 144 820 et al.
respondent fled a application to adjust his status to lawfl permanent resident ( For 1-485)
with United States Customs and Immigation Enfrcement ("USCIS") (Motion, Tab E). 1 On
April 19, 2005, this application was denied, but the lead respondent claims to have not received
notifcation of this decision at the time (Motion, Tab H; Tr. at 40-41 ). This decision was mailed
to the attorey's offce, but wit the lead respondent's name. Then, on August 15, 2005, the lead
respondent received a notice fom USCIS concering his employment authoriztion that stated:
A review of your record indicates that the Application to Register Permaent
Residence or Adjust Status (1-485) you fled with this ofce has been
approved .. . . Please note that aliens who are lawl peranent residents of the
United States are authorized to engage in employment.
Motion, Tab I.
The statement that his status had been adjusted was in eror. A alien may adjust his status to
lawfl peraent resident pursuat to the requirements of section 245 of the Act, 8 U.S.C.
§ 1255. Other than this statement in dicta, neither the respondent nor the Depament of
Homelad Security ("DHS") has provided any evidence that such adjustment occured. A
Notice to Appear was then issued on October 5, 2005 (Exh. 1; Motion, Tab J).
Although the lead respondent wa told on August 15, 2005, that he had lawfl permanent
resident status, there is no evidence such status was ever grated to him. He argues that his
actions thereafer were in response to this statement. However, we, like the Immigation Judge,
are without authority to apply equitable estoppel to the actions of the DHS. See Matter of
Herandez-Puente, 20 I&N Dec. 335 (BIA 1991 ). Equitable estoppel is a judicially devised
doctine that precludes a party to a lawsuit, because of some improper conduct on that party's
pa, fom assering a claim or a defense, regadless of its substantive validity. Phelps v. Federal
Emergenc Management Agency, 785 F.2d 13 (1st Cir. 1986). Estoppel is an equitable fr of
action, wt only equitable rights recogized. Keado v. United States, 853 F.2d 1209 (5th Cir.
1988). By contast, this Board, in considering and deterining cases befre it, can only
exercise such discretion and authority conferred upon the Atorey General by law. 8 C.F.R.
§ 1003 .1 ( d)(l ). Our jurisdiction is defned by the regulations, and we have no jurisdiction unless
it is af ratively ganted by te regulations. Matter of Hernandez-Puente, supra; Matter of
Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985). We are
uable to exercise equitable estoppel. For these same reasons, we are without authorit to gant
the respondents relief based on the specifc nature of their situation ( Resp. Br. at 12).
Given that we ae without power to gant the lead respondent the requested relief through
equitable estoppel, we agree with the Immigration Judge that both respondents ae removable as
charged. The lead respondent worked without authorization between August 2005, and Febr
2006. He argues that he believed he was authorized to work, based on the eroneous statement
by USCIS, but we obsere that a Notice to Appear was sered on him on October 6, 2005,
indicating he was not in legal status (Exh. I). In any event, it is clear that he did work without
authorization and is removable on this basis. Also the respondents' argument that the DHS must
The respondents' motion fled in Immigration Court provided copies of all pertinent
documents. References to the Motion in this decision are to this submission).
2
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Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)
A098 144 820 et al.
proceed against them in rescission proceedings is without merit ( Resp. Br. at 7-8). See section
246 of the Act. 8 U.S.C. § 1256. Despite the misstatement, the lead respondent ha not
established that he was ever ganted lawfl peranent resident status or that there is any stats to
rescind. See section 245 of the Act.
In closing, while the respondents have raised allegations of inefective assistance by previous
attoreys, they have not complied with the requirements established in Matter of Lozada, 19 I&N
Dec. 637 (BIA 1988). See Otiz-Puentes v. Holder, 662 F.3d 481 (8th Cir. 20 11); Habchy v.
Gonzales, 471 F.3d 858 (8th Cir. Dec 20, 2006); Matter of Compean, Bangley & J-E-C-, 25 I&N
Dec. 1 (A.G. 2009); see also Rajyev v. Muksey, 536 F.3d 853 (8th Cir. 2008) (rejecting
Constitutional right in removal proceedings to efective assistance of counsel under the Fifh
Amendment, but fnding exercise of Board's discretion to reopen proper where respondent was
inefectively sered by cousel). The respondents have not submitted ay evidence of alerting
the frer counsels or their respective disciplina authorities of the allegations. See Matter of
Lozada, supra.
As the respondents have no status allowing them to remain legally in the United States, the
fllowing order will be entered.
ORER: Te appeal is dismissed.
3
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Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013)
\'
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
UITED STATES IMMIGRTION COURT
KNSAS CITY, MISSOURI
File: A098-144-820 October 13, 2011
In the Matter of
FARZAD SAEED QURESHI IN REMOVAL PROCEEDINGS
RESPONDENT
)
)
)
)
CHARGES:
APPLICATIONS: Motion to reconsider; motion for termination; and
special request for discretionary relief.
ON BEHALF OF RESPONDENT: RYAN T. FITZPATRICK
ON BEHALF OF DHS: JAYME SALINARDI
ORL DECISION OF THE IMIGRTION JUDGE
f :s d h
.
Re erence� ma e to t e August 18, 2011, written
decision issued by this Court previously. On July 14, 2011, the
respondents had appeared via telephone at a master calendar
hearing with counsel and raised a question as to whether the
charges of removability against the respondent had previously
been sustained by a j udge in the Oakdale, Louisiana Court. That
court previously was assigned to hear St. Louis, Missouri
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Immigration cases and subsequently these matters were
transferred to the j urisdiction of the Kansas City Court. The
tapes of the removal hearing conducted May 21, 2007, were
reviewed by the Court and it was determined that allegations 1
through 3 in the Notice to Appear, which was marked as Exhibit
1, had been admitted and allegation 4 and the removal charges
had been denied. At one point during the hearing the respondent
had admitted that his work authorization had expired in August
2005, and that he did not receive new authorization until
February 2006, leaving a period of approximately six months in
which he worked without authorization.
On the basis of this admission, the presiding
Immigration Judge in Oakdale found that Section 237(a) (1) (C) (i)
charge of removability had been proven by clear and convincing
evidence. Moreover, the Immigration Judge determined that the
respondent had fallen out of status on November 1, 2005, and had
remained in the United States beyond that date. Therefore, the
Immigration Judge also further found that Section 237(a) (1) (B)
charge of removability had been proven by clear and convincing
evidence as well. See Exhibit lA, Form I-261. The Immigration
Judge designated Pakistan as the country of removal. In an
order dated August 18, 2011, this Court again found that the
charges under 237(a) (1) (C) (i) and Section 237(a) (1) (B) were
sustained.
Following the entry of that order the respondent filed
A098-144-820 2 October 13, 2011
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- W¥
a motion to reconsider that decision as well as a motion for
termination of the proceedings and a request for special
discretionary relief. At the hearing today these motions were
taken up and argued by counsel and this decision results from
those discussions and arguments today.
STATEMENT OF LW CONCERNING MOTIONS TO RECONSIDER
A Immigration Judge may upon the motion of the alien,
reconsider any case in which he has made a decision unless
j urisdiction has vested with the Board of Immigration Appeals.
See 8 C. F. R. Section 1003. 23(b) (1) and 8 C.F. R. Section
1003. 23(d) (2) . A motion to reconsider must also state the
reasons for the motion by specifying the errors of fact or law
in the Immigration Judge's prior decision and must be supported
by relevant authority.
The statements of the respondent's attorney in the
motion to reconsider are not considered to be evidence. See
Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998}; Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 505-506 (BIA 1980) .
FINDINGS A CONCLUSIONS
The respondent is premising his request for relief
today in part upon argument grounded in estoppel. He argues
that the respondent was erroneously advised that he had been
granted LPR status by USCIS and believed that he then was
A098-144-820 3 October 13, 2011
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working with permission and was legally remaining in the United
States. He further argues that because of the ineffective
assistance of the respondent's former counsel in this matter (an
attorney who later was censored for his conduct) the respondent
is a victim of unfortunate and defective actions on his behalf
by his retained counsel, and that he should not be further
victimized in the Immigration system as a result of that. The
letter referenced by the respondent is at Exhibit I in his
motion to reconsider. This is the letter dated August 15, 2005,
advising the respondent that his application and 485 had been
approved and that he was authorized to engage in employent.
The Notice to Appear originally issued in this matter is dated
October s, 2005, approximately two months after the erroneous
letter advising the respondent that he was in LPR status.
The Government argues that the respondent's motion is
filed in excess of 30 days from the order of the Court and
therefore is untimely. Further that this Court has no authority
or j urisdiction to estop the USCIS from taking actions and
canot issue an order purporting to do so. In addition, the
Government argues that this Court has no prosecutorial
discretion whatsoever and that the decision to proceed or not
proceed in an Immigration matter is one that is entirely vested
with the Department of Homeland Security and not with the
Immigration Judge.
The Court believes that the motion perhaps was due
A098-144-820 4 October 13, 2011
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within 30 days, however, I will consider it anyway in that it
was filed within 40 days and is not so late as to cause an
impossible delay in the court. In addition, it was received
prior to the next scheduling hearing which was today, in plenty
of time for it to be considered.
With regard to the other aspects of the respondent's
motion the Court agrees that there is no jurisdiction to order
d d h
.
�!h(e�" . h
.
.
USCIS to o or not to o somet ing 8 �e in t e Immigration
Judge's statutory authority. In addition, the equitably
fashioned relief of estoppel is not available to the Immigration
Judge or in the Immigration Court through any of the enabling
federal statutes that this Court is aware of.
Further, it is also clear that this Court has no
authority with regard to "prosecutorial discretion" and none has
been advanced, and no statutes cited or case law that would
allow the Court to grant any type of special discretionary
relief such as that. Motions to reconsider should be supported
by specific errors of law or fact and at this time I see no
error of law. Ad the facts are essentially not in dispute at
this time with regard to the exhibits and documents furnished by
the respondent's counsel, insofar as they set out the letters
and the correspondence that went on in this matter from its
inception, and provide a complete narrative and time line of the
events that have occurred.
The Court has found that the respondent is removable
A098-144-820 5 October 13, 2011
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under the two charges previously mentioned. The respondent
through counsel does not intend to request any relief from
removal but is intending to appeal this decision and obtain
relief in the appellate process. Therefore, the following
orders will be entered at this time:
ORDERS
IT IS HEREBY ORDERED that the respondent's motion to
reconsider, motion for termination, and special request for
discretionary relief is denied.
IT IS FURTHER ORDERED that both of the respondents in
this matter as named above are to be removed from the United
States to Pakistan pursuant to the charges contained in the
Notice to Appear in each respective record of proceeding.
October 13, 2011 �. {'
A098-144-820 6 October 13, 2011
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
JOHN R. O'MALLEY, in the matter of:
FARZAD SAEED QURESHI
A098-144-820
KANSAS CITY, MISSOURI
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Inigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
DANA LINTON (Transcriber)
DEPOSITION SERVICES, Inc.
NOVEMBER 27, 2011
(Completion Date)
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