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Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)

Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent abandoned his lawful permanent resident status and denied his application for a waiver of inadmissibility under INA 211(b). The Board found that the respondent was continuously outside the United States for nearly four years, that he continued to work in the Dominican Republic for two years after obtaining a business degree, and that his three children and their mother continue to live in the Dominican Republic. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent abandoned his lawful permanent resident status and denied his application for a waiver of inadmissibility under INA 211(b). The Board found that the respondent was continuously outside the United States for nearly four years, that he continued to work in the Dominican Republic for two years after obtaining a business degree, and that his three children and their mother continue to live in the Dominican Republic. The decision was written by Member Roger Pauley.

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Nin, Amador D'Alzina

69 Mayaguez Street Hato Rey
San Juan, PR 00917
Name: GARCIA GUZMAN, OLIVER
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
J707LccvburgPík, 5utlc2000
lohvLhurch, lrgíníu JJ04!
OHS/ICE Office of Chief Counsel - SAJ
7 Tabonuco St., Suite 300 (Rm 313)
Guaynabo, PR 00968
A 043-144-667
Date of this notice: 8/20/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
DC Ca
Donna Carr
Chief Clerk
Userteam: Docket
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Cite as: Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department of Justice
Executive.Ofce fr Immigon Review
Decision of the Boad of Immigation Appeals
· Falls Church, Virgnia 22041
File: A043 144 667 - Guaynabo, PR
In re: OLIVER GARCIA GUZMAN
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONENT: Amador D' Alzina Nin, Esquire
ON BEHALF OF OHS:
CHARGE:
Magdalena Ramos Romey
Assistt Chief Counsel
AUG 2 0 2013
Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § I 182(a)(7)(A)(i)(I)] -
Immigant - no valid immigant visa or enty document
APPLICATION: Waiver of inadmissibility pursuant to 8 U.S.C. § I 18l (b)
The respondent appeals the Immigation Judge's March 5, 2012, decision. The Immigation
Judge fund him inadmissible as charged, determined that he abandoned his lawfl peraent
residency, and denied his application fr a waiver of inadmissibility under section 211 (b) of the
Immigation and Nationality Act, 8 U .S.C. § 1181 (b ). Te appeal will be dismissed.
The respondent is a native and citizen of the Dominican Republic. As noted by the
Immigation Judge, the respondent adjusted his status to that of a lawfl permanent resident in
1991 but lef te United States fom Puerto Rico in October 2007 ad resided in the Dominican
Republic until July 2011 (l.J. at 4; Exhs. 1, 2). When he sought readmission to the United States
at Puerto Rico on July 18, 2011, te Department of Homeland Security (OHS) charged him with
being inadmissible under section 212(a)(7)(A)(i)(I) of the Act despite his prior admission as a
lawfl peranent resident. The Immigration Judge sustained te charge ofremovability.
The respondent, while not disputing the fnding of removabilit, argues that the Immigation
Judge should have gated him a waiver of inadmissibilit. As an initial mater, we see no clear
eror in the Immigation Judge's positive credibility deterination (1.J. at 4). See 8 C.F.R.
§ I 003. l(d)(3)(i)-(ii) (the Board reviews an Immigrtion Judge's fctal and credibility fndings
fr clear eror and reviews questions of law, discretion, judgment, and all other issues de novo ).
To establish his eligibilit fr a waiver under section 21 l (b) of the Act, the respondent must
demonstate that he is a "reting resident immigant," i.e., that he was previously admitted fr
peranent residence in te United States and is reting fom a ''temporar" visit abroad. See
sections 10l (a)(27)(A) and 21 l (b) of the Act; see also 8 C.F.R. §§ 21 l.l(b)(3) and 211.4. As an
alien previously admitted fr permanent residence, te respondent has a "colorable claim to
returing resident stats," and is terefre entitled to a presumption of eligibility fr a section
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Cite as: Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)
A043 144 667
211(b) waiver. See Matter of Huang, 19 l&N Dec. 749, 754 (BIA 1988); Matter of Kane,
15 I&N Dec. 258, 264 (BIA 1975). However, the DHS may rebut this presuption if it
demonstates by clear, unequivocal, and convincing evidence that the respondent abadoned his
lawfl permanent resident stats (l.J. at 2). See id. Ascertaining whether U alien intended to
abandon lawfl peranent resident status requires an examination of the duration ofhis absence,
the location of his family ties, property holdings, and job, his puose in departing fom the
United States, whether his visit abroad could have been expected to terminate within a relatively
short period of time, and wheter that terination date was fxed by some early event. See
Matter of Huang, supra, at 755-57; Matter of Kane, supra, at 262-63. Considering these fctors,
we agee with the Immigation Judge that the DHS sustained its burden of establishing tat the
respondent abandoned his lawfl peranent resident stats.
First, the respondent was absent fom the United States and lived in the Dominican Republic
fr a continuous period of nearly 4 years (i.e., fom October 2007 to July 2011) (l.J. at 8, 13).
While such a time period is not dispositive to our inquiry, we agee with the Immigation Judge
that te respondent's lengthy absence is sigifcant evidence of his intention to abandon lawl
peranent resident status. See Mater of Huang, supra, at 755.
Next, the respondent contends that the Immigation Judge filed to consider te fct tat he
did not ret "immediately to the US [fr] reason[s] beyond his contol" (Respondent's Br. at 4).
Te respondent claims that he depared fr te Dominican Republic to obtain a Masters of
Business Administation degee because his fther-who ageed to pay fr his schooling-was
there and tuition was more afordable in that county (Tr. at 21-22; Respondent's Br. at 2). I
Matter of Kane, supra, at 263, we acknowledged tat an alien's lengthy absence fom te
United States should not be consted as evidence of an abandonment of lawfl resident stats
where the delayed ret was an unavoidable consequence of unfreseen circumstances, "so long
as the alien continued to intend to ret as soon as his original purpose wa completed."
Here, even presuming that the respondent initially intended to ret to the
United States (i.e., to continue the company he incororated in Puerto Rico on October 1,
2007) afer accomplishing his educational goal, we see no clear eror in the Immigration Judge's
fnding that he continued to work in the Dominican Republic fr 2 years afer obtaining his
degee (I.J. at 6). Indeed, the respondent's decision to seek gainfl employment in his fther's
business i te Dominican Republic, afer graduating in January 2009, coupled wit te fct that
he traveled to various countries fr work-not including te United States-oes not suggest
that he intended to ret to the United States fom a temporay visit abroad (l.J. at 6-7, 9-10;
Tr. at 23, 55-56). To the extent that the respondent suggests tat he was prevented fom
returing to the United States sooner because he was waiting fr a fnancial donation fom his
fther in order to fer his business in Puerto Rico, he has shown no clear eror in te
Immigation Judge's fnding that "there was no specifc time fr [his] fther to provide" the
donation that he claimed to be waiting fr (I.J. at 7; Tr. at 56-57, 80-82; Respondent's Br. at 2).
Fuer, te respondent has not addressed the Immigration Judge's fnding that no corroboration
was ofered to show that his ret to te United States was somehow contingent on the donation
fom his fther (l.J. at 7-8, 13-14). Therefre, we fnd that the exception of "ureseen
circumstaces" does not apply to the respondent as he did not continue to intend to ret to te
United States. See id. ("The visit abroad should be expected to terinate 'within a period
relatively short, fxed by some early event,' and [i]f unfreseen circumstances cause an
unavoidable delay i reting, the tip would retain its temporary character, so long a te alien
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Cite as: Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)
A043 144 667
continued to intend to ret as soon as his original purpose was completed") (interal citations
omitted).
While the respondent also takes issue with the Immigation Judge's fnding that he and the
mother of his three children in the Dominican Republic had a common law mariage, given tat
"they did not have te intention of living together as husband and wif," his contention-even if
accepted-does not underine the Immigation Judge's assessment of his familial ties
(Respondent's Br. at 3-4). In particula, the Immigation Judge noted that te respondent already
had a child in the Dominican Republic when he lef the United States and tat his fther and the
moter of his child-with whom he had two additional children during his stay in te Dominican
Republic-resided there as well (I.J. at 5-6, 11). Furter, the Immigation Judge duly recogized
the respondent's testimony that his relationship wit the mother of his children was ''unstable"
but the respondent has nonetheless shown no clear eror in the Immigration Judge's fnding that
he did not establish that he had family or employment ties in te United States to which he was
reting (I.J. at 11-12; Respondent's Br. at 4). Specifcally, although the respondent's moter
and sister apparently live in Puerto Rco, his fther, tree children, and te mother of his children
all continue to live in the Dominican Republic (I.J. at 5-6; Tr. at 35, 64-67).
I addition, while the respondent states that his decision to start a bona fde cororation in
Puerto Rico prior to his departre constitutes "unequivocal evidence of his intention" to ret to
the United States, he has not demonstated that the Immigration Judge clearly ered i analyzing
his ties to the United States (Respondent's Br. at 5). Specifcally, he has shown no clear eror
in the Immigation Judge's fnding that he did not demonstate an intention to ret to his
business given that he did not fle any reports or otherise take any afrmative steps to suppor
his business-which he registered with te Puerto Rico State Departent only 4 days
befre deparing fr the Dominican Republic-during his entire absence fom the United States
(l.J. at 4-5, 8-9, 12; Ex. 3 at 10; Tr. at 26-27, 40-48, 80, 84). Also, te respondent has not
addressed the Immigation Judge's fndings that he (1) owned no property in the United States
prior to his depare; (2) did not fle income tax rets in Puerto Rico befre his deparure,
despite being employed at a bank; and (3) had no residence to ret to in Puero Rico given
that his mother's apartent was unavailable as it was already being rented out (l.J. at 5, 8-10;
Tr. at 72-75).
I sum, in light of the fct that fom 2007 through 2011, the respondent's primay physical
presence, fmily ties, and employment were not in the United States, we agee with the
Immigation Judge that the DHS sustained its burden of establishing tat he abandoned his
lawfl permanent residency (1.J. at 11-14). As such, the respondent is inadmissible as charged
and is ineligible fr a waiver under section 21l(b) of the Act. See, e.g., Matter of Muler,
16 l&N Dec. 637, 639 (BI 1978) (holding that the applicant-espite having a lawl
permanent resident mother in the United States-had abandoned his lawfl permanent residency
given his lengthy absence fom the United States (i.e., based on his decision to remain in Mexico
fr 6 years and only enter the United States twice during that time fr short visits of a fw hous
duration), and because of his marage to a Mexica citizen, and three children, all of whom ae
Mexica citizens); Matter o/Quiencio, 15 I&N Dec. 95, 98 (BI 1974) ("The mere fct that the
respondent alleges tat he never had a specifc intent to abandon his peranent resident stats . . .
does not establish that he had an afrative intent to ret to the United States afer a
temporary visit abroad" and holding that the relevat fctors in this case, "such as duration of
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Cite as: Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)
A043 144 667
stay and ties, are overhelming evidence of a 'change' in status"), afd, 535 F.2d 501 (9th Cir.
1976).
Additionally, while the respondent has ofered several documents on appeal-most of which
appear to relate to his new company in Puerto Rico-tis Board may not accept such documents
into the record as it is precluded fom fct-fnding in the course of deciding appeals
(DHS's Br. at 2). See 8 C.F.R. § 1003.l (d)(3)(iv). To the extent that the respondent requests a
remand, he has not shown tat such infration was previously unavailable and could not have
been discovered or presented in te prior hearing befre the Immigration Judge. See Mater of
Coelho, 20 l&N Dec. 464 (BIA 1992). Alteratively, the respondent has filed to show how this
infrmation demonstrates any legal or clear fctual eror in the Immigation Judge's decision.
1
As such, we fnd that the respondent has not established any substantive or procedural defct in
tese proceedings and conclude that he has not shown that frther proceedings ae wUted on
any basis. We also note that te respondent has not raised on appeal the Immigation Judge's
fnding that he is ineligible fr voluntary departre under section 240B(b) of the Act, 8 U.S.C.
§ 1229c(b) (1.J. at 14-15). Accordingly, te respondent's appeal will be dismissed.
ORER: The respondent's appeal is dismissed.
The respondent states tat shortly afer returing to Puerto Rico, he started a new business and
has already begun making tansactions, all of which demonstates "that in realit he did have a
pla to come back and establish his company" (Respondent's Br. at 5). Even considering the
respondent's profered documents as to his new business, he has not contested te Immigation
Judge's fnding tat he was instcted by an accountant to stat a new cororation because he had
not "prepared nor fled any anual reports fr te [original] cororation he had created on
October I, 2007" (I.J. at 5, 9-10). As the new cororation was necessitated by his filure to
maintain his original company, te record does not support his expressed intention to ret to
the company that he stared prior to his departure (Tr. at 49-50; Respondent's Br. at 2, 5).
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Cite as: Oliver Garcia Guzman, A043 144 667 (BIA Aug. 20, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
GUAYNABO, PUERTO RICO
File: A043-144-667 March 5, 2012
In the Matter of
OLIVER GARCIA GUZMAN IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGE:
APPLICATIONS:
Section 212 (a) (7) (A) (i) (I) - as an inigrant who
at the time of application for admission is not
in possession of a valid, unexpired imigrant
visa, reentry permit or other valid entry
document required by the Act.
ON BEHALF OF
I-193 visa waiver, admission to the United
States.
RESPONDENT: �!
ON BEHALF OF DHS: RONALD SEELY, Assistant Chief Counsel
ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE
On August 18, 2011, the Department of Homeland Security
filed a Notice to Appear against the respondent conencing
removal proceedings and vesting jurisdiction with this Court,
8 C. F. R. 1003. 14 (a). The respondent has conceded proper service
of the Notice to Appear, see Exhibit 1. The respondent admits
1
.· ·
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all the factual allegations in the Notice to Appear and concedes
inadissibility as charged, see Exhibit 1. The respondent
concedes that he has been outside the United States for over one
year and that he is an immigrant without an imigrant visa under
Section 212{a) (7) {A) {i) {I) , for lack of valid entry document.
STATEMENT OF THE LAW ON REMOVABILITY/INADMISSIBILITY
The Department of Homeland Security must prove by clear and
convincing evidence that the respondent is an arriving alien.
In the case of an alien lawfully admitted for permanent
residence, the pertinent Section is lOl{a) {13) {C} . Said Section
states in pertinent part, an alien lawfully admitted for
permanent resident in the United States shall not be regarded as
seeking an admission into the United States for the purpose of
Imigration laws unless the alien {i} has abandoned or
relinquished that status; {ii) has been absent from the United
States for a continued period in access of 180 days. Matter of
Huang, 19 I&N Dec. at 754. Matter of Rivens, 25 I&N Dec. 623
{BIA 2011} . See Section 212{a) (7) {A) {i} (I} .
Any imigrant who at the time of application for admission
is not in possession of a valid, unexpired imigrant visa,
reentry permit or other valid entry document required by the Act
is inadmissible. 8 C. F. R. 211. 1 states that each arriving alien
applying for admission as a lawful permanent resident returning
to an unrelinquished lawful permanent residence in the United
States shall present a valid, unexpired Form I-551, permanent
A043-144-667 2 March 5, 2012
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resident card, if seeking readmission after a temporary absence
of less than one-year.
8 C. F. R. Section 211.4 (a) states that pursuant to the
authority contained in 2ll (b) of the Act, an alien previously
lawfully admitted to the United States for permanent residence
who upon return from a temporary absence was inadmissible
because of failure to have or to present a valid passport,
imigrant visa, reentry permit, border crossing card or other
document required at the time of entry, may be granted a waiver
of such requirements in the discretion of the district director,
.· ·
if the district director determines that the alien was not
otherwise inadmissible at the time of entry and is not otherwise
subject to removal. Denial of a waiver by the district director
is not appealable but shall be, without prejudice, be renewed as
an application and for application and reconsideration in
proceedings before an Immigration Judge.
SUMMARY OF THE EVIDENTIARY RECORD
The evidentiary record in this case consists of Exhibit 2
which is a Q and A, record of sworn statement taken at the
airport upon the respondent's arrival to the United States, at
the port of entry in San Juan, Puerto Rico on July 18, 2011.
Exhibit 3 is a filing by the respondent, including Form I-193,
application for waiver of visa with supporting documents. And
that is the extent of the documentary evidence in this case.
All documents and Exhibits have been admitted in the record and
A043-144-667 3 March 5, 2012
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into evidence without any objection. All admitted evidence
identified has been considered in its entirety regardless of
whether specifically mentioned in the text of the decision.
The respondent was the only witness to testify. The Court
finds his testimony generally credible. However, at times he
was evasive, provided general information, failed to provide
details. The respondent testified that he has been a lawful
permanent resident of the United States since 1992. He was
petitioned by his stepfather and he came to the United States
when he was approximately 13 years old. He went to school in
Puerto Rico from the seventh grade on. And he last departed the
United States to the Dominican Republic in September 2007. He
testified that he is not married; that he studied his master's
degree in San Pedro de Macoris in the Dominican Republic. All
prior studies were conducted in Puerto Rico.
According to the respondent, prior to his departure from
the United States in 2007, specifically, the respondent departed
the United States on October 5, 2007 according to the
information in the Q and A, Exhibit 2, page 3 of that Exhibit.
The respondent testified that before he departed the United
States, he registered a corporation with the Comonwealth of
Puerto Rico State Department. According to the respondent's
Exhibit 3, page 10, the corporation was registered on October 5,
2007, that is approximately four days before the respondent's
departure from the United States on October 5, 2007. Although
A043-144-667 4 March 5, 2012
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the respondent in his testimony tried to portray that he
registered that corporation before departing because he was
coming back to the United States to have that corporation and to
open a business with that corporation, the truth is that the
respondent never did anything about that corporation other than
to register it four da
y'
_
_
_
_
be_ fore he departed the United States.
The respondent testified that when he came back to Puerto
Rico after July 18, 2011 because he had failed to make any
reports on that corporation because he had failed to do anything
with the State Department or any other Government entity in
.· ·
Puerto Rico with that corporation, he had to request another
corporation to be opened in order to establish the business that
he claims he has at the present time. The respondent also
testified that when he departed the United States, he had no
property in the United States. He only had two vehicles which
he sold before he departed the United States. So at the time
the respondent departed, he had nothing in Puerto Rico to which
he was returning. He did have his mother and his sister.
Nevertheless, the respondent when he departed the United
States had a child in the Dominican Republic that had already
been born
1
and had his father in the Dominican Republic
1
and had
the mother of his child in the Dominican Republic with whom the
respondent, after departing the United States on October 5,
2007, lived with, and subsequently had two more children with
this person. So the respondent's family, his comon law spouse
A043-144-667 5 March 5, 2012
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and his three children are in the Dominican Republic and remain
in the Dominican Republic. And at the time the respondent
departed on October 5, 2007, he had already a child and a common
law spouse in the Dominican Republic.
The respondent testified that he went to the Dominican
Republic in order to complete his master's degree. However, the
respondent in his testimony indicated that he completed his
master's degree and graduated on January 24, 2009. So the
respondent's original, according to his testimony, intention to
go to the Dominican Republic to complete his master's degree and
.· ·
come back to Puerto Rico to operate the corporation that he
registered four days before he departed, although he graduated
on January 24, 2009, he continued to live and work in the
Dominican Republic.
The respondent testified that although he remained in the
Dominican Republic, he did so to gain experience in his father's
business. However, the respondent testified that he traveled to
different countries while he was gaining experience in his
father's business. Nevertheless, he never came back to the
United States. He simply remained in the Dominican Republic
working for his father. According to the respondent, while he
was studying, he was working for his father and he continued to
work for his father in the same capacity after he graduated and
with the same salary and under the same conditions. So it seems
to the Court that the respondent went to the Dominican Republic,
A043-144-667 6 March 5, 2012
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.· ·
completed his master's at night and continued to work for his
father.
The respondent's testimony that he remained in the
Dominican Republic after January 24, 2009 to gain experience
after his graduation is not persuasive because the respondent,
according to his own testimony, was working with his father
since 2007 and he continued to work in the same capacity and
under the same conditions. Therefore, the respondent since his
departure in 2007, worked for his father gaining experience and
also studying and upon graduation on January 24, 2009, he did
not return to the United States, but remained working for his
father in the Dominican Republic.
The respondent indicated that the reason he remained
working for his father was to gain experience and also because
his father had told him that he was going to give him a
donation. And the responde
n
t was waiting for that donation in
order to come back to the United States to establish his
business. Nevertheless, there was no specific time for the
father to provide the respondent with the donation that he
claims he was waiting for. He just continued to work and for
the father to have his business until the father had enough
profit that then he provided the respondent with $20, 000 which
the respondent claims that he used to come back to the United
States to establish his business.
The respondent provided absolutely no corroboration that
A043-144-667 7 March 5, 2012
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his father had promised him any amount of money and that his
return to the United States was contingent upon his father
providing him with that donation. It seems that at one point
the respondent somehow had problems with his father and the
business and he just decided to leave the business, no longer
worked for his father, and that is when his father provided him
with the funds that the respondent claims he was waiting for in
order to return to the United States to open his business.
The respondent, throughout the time that he was in the
Dominican Republic, which is practically two months short of
four years, the respondent remained outside the United States
for three years and ten months approximately, from October 1,
2007 to July 18, 2011. And throughout that time, the respondent
did nothing to pursue his business that he claims he left in
Puerto Rico which the only action he took was to incorporate and
register this corporation with the State Department in Puerto
Rico. He never did anything else to establish that he had a
business, that he had the intent to return to that business.
The respondent testified that he never filed taxes in
Puerto Rico al though he
·
was gainfully employed in Puerto Rico
and worked for a bank. He claims that he did not earn enough
money to file taxes in Puerto Rico. But the fact is that he
never did file taxes in Puerto Rico. The respondent's testimony
regarding not earning enough money and having worked in Puerto
Rico prior to his departure is entirely self-serving. There is
A043-144-667 8 March 5, 2012
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absolutely no corroboration that the respondent was working in
the United States and did not make enough money in order to file
taxes. The respondent testified that he did file taxes and paid
taxes in the Dominican Republic.
The respondent testified that while he was in the Dominican
Republic from 2007 to 2011, he went to Brazil and Costa Rica in
order to visit agricultural shows as part of his business with
his father and as part of working for his father's business.
Although the respondent testified that he went to Dominican
Republic to prepare himself by completing his master's degree
and to meet agricultural contacts and return to Puerto Rico for
his business, according to the respondent, he never intended to
abandon his residence. And he never knew that he could have
problems if he returned to the United States after so many
years. The fact is that the respondent did not come back to the
United States for almost four years and he did not do anything
to establish that he had the intent of coming back to Puerto
Rico to establish that business that he claims he opened four or
five days before he departed through the Internet.
The respondent testified that when he left the United
States on October 5, 2007, he registered a corporation on
October 1, 2007. And when he came back to Puerto Rico, the
certified public accountant recomended that he create a new
f
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corporation because he had�prepared nor filed any annual reports
for the corporation he had created on October 1, 2007. So the
A043-144-667 9 March 5, 2012
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respondent had to create a new corporation after he came back
in 2011.
The respondent testified that when he came back to Puerto
Rico in July 2011, he was coming back to his home in Riveras Del
Rio apartment to his mother's apartment. And that is what he
tried to portray that he had a house, a home here to which he
was coming back to. However, during testimony, the respondent
indicated that the apartment, owned by his mother, was rented
and was not available to him. That he came back to the United
States and he stayed with some friends in Guaynabo, Puerto Rico
and t�en he rented the residence where he is living presently.
So, the respondent, at the time he came back to Puerto Rico,
although he has portrayed at all times that he was coming back
to his home, his residence, the apartment owned by his mother,
the fact is that the apartment was not available to him, it was
rented. And the respondent has never resided in that apartment
since he came back to Puerto Rico.
The respondent testified that when he left for the
Dominican Republic, he was planning to stay two years and
complete his master's degree. And that was completed in 2009.
Subsequent to that, the respondent remained working for his
father under the same conditions that he had been working since
he left and worked with his father in 2007. The respondent
indicated that he was waiting for his father's donation and the
money he was going to use for his corporation. However, it took
A043-144-667 10 March 5, 2012
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from 2009 to 2011 for the respondent to receive the money that
he claims he was expecting from his father.
The respondent also testified regarding the children that
he has in the Dominican Republic. His first child was born
before the respondent's departure to the Dominican Republic, and
since then he had two more children born in the Dominican
Republic, one in 2009, one in 2010. And although he claims the
relationship with his comon law spouse is unstable, the fact is
that throughout the years since 2006, the first child was born,
2009, the second child born, 2010, the third child was born, all
with the same mother who lives in the Dominican Republic. And
his children live in the Dominican Republic. And that is the
sumary of the respondent's testimony in court. The respondent
was the only witness to testify.
Based upon the evidentiary record, the Court finds that the
Department of Homeland Security has proven by clear and
convincing evidence that the respondent is an arriving alien and
an applicant for admission pursuant to the definition at INA
Section lOl (a} (13} {C} (ii}, in that the respondent has been
absent from the United States for a continuous period in excess
of 180 days, that is, from October 5, 2007 to July 18, 2011.
The respondent has been outside the United States for over three
years.
The Court further finds that the Department of Homeland
Security has established facts supporting deportability pursuant
A043-144-667 11 March S, 2012
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(
to Section 212 (a) (7) (A) (i) of the Act by clear, unequivocal and
convincing evidence. DHS established that the respondent at the
time of application for admission on July 18, 2011 was an
imigrant without an imigrant visa in that the respondent's
alien registration card, Form I-551, which was the travel
document that he presented, was expired since he had been
outside the United States for over one year. And he did not
present any other valid entry document as required under
8 C.F.R. Section 211.l (a).
The Court also finds that the respondent is not returning
from a temporary visit abroad in that he has failed to establish
that he had ties in the United States that he is returning to.
The respondent left his imediate family in the Dominican
Republic and the respondent in the United States, although he
tried to portray he was returning to his home and his mother's
apartment, the apartment was not available for him. The
apartment was rented and the respondent had not resided in that
apartment. The respondent did not, although he claims he left
the corporation, the fact is that he registered that corporation
four days before he departed. And he never did anything about
that corporation for almost four years. So the respondent has
failed to establish that he had property, a job and other links
to the United States when he was returning to the United States.
The Court finds that the respondent acquired his �l�
permanent residence in 1992, but he has not retained that status
A043-144-667 12 March 5, 2012
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from the time he acquired it in that he is not returning to
unrelinquished lawful permanent residence after a temporary
visit abroad.
The Court finds that the respondent's departure from the
United States on October 5, 2007 was not for a temporary visit
abroad. The Court considers the departure and stay of the
respondent in the Dominican Republic for a period of over three
years from October 2007 to July 18, 2011 not to be a temporary
visit based on the respondent's testimony and evidence
presented.
The Court finds that the respondent has failed to establish
that he held a continuous, uninterrupted intention to return to
the United States during his entire absence. The Court
specifically makes a firm finding that the respondent has failed
to establish that his stay in the Dominican Republic for over
three years was contingent upon the occurrence of an event that
was fixed in time. Inasmuch as the event that was fixed in time
was the respondent's graduation in 2009 and although the
respondent may have had a fixed time to return to the United
States, his stay beyond that from 2009 to 2011 was not
contingent upon the occurrence of an event that was fixed in
time.
As such, the Court concludes that the respondent's absence
from the United States for over three years upon his departure
foreign cannot be considered a temporary visit. And that when
A043-144-667 13 March 5, 2012
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the respondent arrived in the United States at the port of San
Juan, Puerto Rico in July 2011, he was not returning to the
United States from a temporary visit abroad. Specifically, the
time period after his graduation in 2009 up until his return in
2011 to Puerto Rico was not contingent upon an occurrence of an
event that was fixed in time, and as such, the Court finds that
the respondent has failed to establish that he is returning from
a temporary visit abroad.
Based upon the evidentiary record and the factual findings
cited, the Court concludes as a matter of law that the
.· ·
respondent is an applicant for admission pursuant to INA Section
lOl{a) {13) {C). The Court concludes that the respondent is no
longer a lawful permanent resident of the United States as
defined in INA Section lOl (a) (20} . The Court concludes that the
respondent is inadmissible to the United States pursuant to
Section 212 (a) (7) (A) (i) (I), and the Court concludes that the
respondent is an applicant for admission imigrant without an
imigrant visa and no longer a lawful permanent resident
returning from a temporary visit abroad in that he has abandoned
such status. The Court concludes that the respondent is
ineligible for a waiver of documents for returning residents
contained in 8 C.F.R. 211.4; 211 (b} of the Act, and the same
must be and are hereby denied.
Regarding voluntary departure,
.
to �s\ablish eligibility for
voluntary departure under Section
'
) i 0 @.df the Act, respondent

A043-144-667 14 March 5, 2012
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must prove that he has been physically present in the United
States for at least one year immediately preceding service of
the Notice to Appear. The Court finds that the respondent fails
to meet that requirement in that the respondent arrived in the
United States on July 18, 2011 and the Notice to Appear was
served on the respondent, in person, on July 18, 2011.
Therefore, the Court finds that the respondent does not meet the
statutory prerequisite in that he has not been physically
present in the United States for at least one year imediately
preceding service of the Notice to Appear. As such, the Court
concludes that the respondent is ineligible for voluntary
departure under Section 240B (b) of the Act.
ORDERS OF THE IMMIGRATION JUDGE
WHEREFORE, IT IS HEREBY ORDERED that the charge that
appears in the Notice to Appear is sustained and respondent's
removability established.
IT IS HEREBY FURTHER ORDERED that the respondent's
application for waiver of visa pursuant to INA 2ll (b) of the Act
be and herein is denied.
IT IS HEREBY FURTHER ORDERED that the respondent's request
for voluntary departure at conclusion of proceedings under
Section 240B (b) of the Act be and herein is denied.
IT IS HEREBY FURTHER ORDERED that the respondent shall be
A043-144-667 15 March 5, 2012
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removed from the United States to the Dominican Republic on the
charges sustained in the Notice to Appear .
. · ·
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A043-144-661
16 March 5, 2012.
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'· .
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
CRIMILDA GUILLOTY, in the matter of:
OLIVER GARCIA GUZMAN
A043-144-667
GUAYNABO, PUERTO RICO
is an accurate, verbatim transcript of the recording as provided
by the Executi�e Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
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