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Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)

Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) Appeal sustained the respondent’s appeal upon finding the respondent's application to adjust status under Section 245(i) was denied based on the clearly erroneous determination that the respondent submitted no evidence indicating that his father, Yogesh Pandya, was the same person named as the beneficiary of a labor certification filed prior to April 30, 2001. The decision was written by Member Roger Pauley and joined by Member Anne Greer and Member Patricia Cole.
In this unpublished decision, the Board of Immigration Appeals (BIA) Appeal sustained the respondent’s appeal upon finding the respondent's application to adjust status under Section 245(i) was denied based on the clearly erroneous determination that the respondent submitted no evidence indicating that his father, Yogesh Pandya, was the same person named as the beneficiary of a labor certification filed prior to April 30, 2001. The decision was written by Member Roger Pauley and joined by Member Anne Greer and Member Patricia Cole.

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Chaudhary, Bhavya Esq.

The Law Ofice of Bhavya Chaudhary
5696 Peachtree Parkway, Ste. A
Norcross, GA 30092
Name: PANDYA, NISHAD YOGESH
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeb11rg Pike, Suite 2000
Fals Cl11rch. Vrginia 2204/
OHS/ICE Ofice of Chief Counsel - ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
A 088-276-788
Date of this notice: 8/22/2013
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Cole, Patricia A.
Pauley, Roger
Sincerely,
DC cl
Donna Car
Chief Clerk
lucasd
Userteam: Docket
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Cite as: Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
.,
U.�. Department of Justice
Executive dfce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A088 276 788 - Atlanta, GA
In re: NISHAD YOGESH PANDY A
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Bhavya Chaudhary, Esquire
ON BEHALF OF DHS: Mary C. Lee
Assistant Chief Counsel
CHARGE:
AUG 2 2 2013
Notice: Sec. 212(a)(6)(A)(i), l&N Act [
8 U.S.C. § 1182(a)(6)(A)(i)] -
Present without being admitted or paroled (conceded)
APPLICATION: Adjustment of status
The respondent, a native and citizen of India, appeals fom the Immigation Judge's
January 31, 2012, decision, pretermitting the respondent's application fr adjustent of status
under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i). His appeal will
be sustained and the record will be remanded fr fher proceedings consistent with this
decision.
There is no dispute that the respondent is the son of Y ogesh Pandya, a native and citizen of
India (l.J. at 4; Tr. at 136-37; Resp. May 4, 2010, Pretrial Memorandum at Tabs F-G). The
respondent maintains that a labor certifcation was fled on his fther's behalf on or befre
April 30, 2001, identifing his father as Rajesh Dave (I.J. at 4; Tr. at 136-37, 177-78;
Resp. May 4, 2010, Pretrial Memorandum at Tab H). By virtue of this fling, the respondent
asserts tat he is a grandfthered alien under section 245(i) of the Act, such that he is eligible to
adjust his status notwithstanding the fct that he entered the United States without inspection and
admission or parole (Resp. Brief at 11-19; I.J. at 4; Tr. at 23, 41-42, 44, 47-48, 56-57; Exh. 28).
The Immigration Judge concluded that the respondent is not a grandfthered alien under
section 245(i) of the Act because he did not establish that he is the derivative benefciary of a
labor cerifcation fled on or befre April 30, 2001 (l.J. at 4-5). Specifcally, she fund that the
respondent did not present any evidence establishing that the respondent's fther, Yogesh
Pandya, and te labor certifcation benefciary, Rajesh Dave, are the same person (l.J. at 4-5).
On appeal, the respondent maintains, inter a/ia, tat the Immigation Judge ered in concluding
that Y ogesh Pandya and Rajesh Dave are not the same person (Resp. Brief at 5-11 ).
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Cite as: Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)
,
fR
A088 276.788
We review the Immigation Judge's fctual fnding that there is no evidence establishing that
the respondent's fther is known as Rajesh Dave fr clear error. 1 Clea error review is
"sigifcantly defrential" to the trier of fct and precludes reversal even if the reviewing
authority views te evidence diferently fom the fct fnder. See Concrete Pipe & Products of
Cal., Inc. v. Constuction Laborers Pension Trust Fund for S Cal., 508 U.S. 602, 623 (1993);
Anderson v. Cit of Bessemer Cit, NC, 470 U.S. 564, 573-74 (1985). In oter words, where
there ae two perissible views of the evidence, the fct fnder's choice between them is not
clea eror. See Anderson v. Cit of Bessemer Cit, NC, supra, at 574. Accordingly, in order to
reverse a factual determination, the appellate body must, upon consideration of "te entire
evidence," be "lef with the defnite ad fr conviction that a mistake has been committed."
See United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
Altough we express no opinion as to the sufciency of the respondent's evidence seeking to
establish that Yogesh Pandya and Rajesh Dave are the same person, we discer clear eror in the
Immigration Judge's fnding that the respondent did not present any evidence relevant to this
question (l.J. at 4-5). Notably, the respondent presented testimony fom several individuals who
claimed that they knew Yogesh Pandya and were aware that he sometimes used the alias Rajesh
Dave (Tr. at 68-75, 77-78, 80, 83-93, 98-101, 104, 129-32, 136-37, 173-75, 177-78, 187-89).
Moreover, the respondent presented afdavits fom his fther and vaous people who knew the
faily to establish tat his fther also used the alias Rajesh Dave and documents showing that
bot Yogesh Pandya and Rajesh Dave received mail at 16 Norh Garden Court, Rome, Georgia
(Resp. May 4, 2010, Pretrial Memorandum at Tab G; Resp. October 31, 2011, Pretrial
Memorandum at Tabs B-C, E-P; Resp. Opposition to the Deparment of Homelad Security's
(DHS's) Motion to Preterit at Tab B). In fnding that no evidence was presented, the
Immigation Judge did not ackowledge te presentation of te fregoing testimony ad
documents, nor did she refrence the evidence provided by the respondent in explaining why it
was insufcient fr the respondent to carry his burden in estalishing he is grandfthered by the
labor certifcation fled on Rajesh Dave's behalf.
2
As a result, we conclude that the Immigration Judge's decision is not supported by adequate
analysis explaining the reasons fr her ultimate determination that the respondent did not cary
his burden of proof to demonstrate that he is a grandfthered alien. See Matter of A-P-, 22 I&N
Dec. 468, 473 (BIA 1999) (vesting the Immigration Judge with the responsibility fr ensuring
the "substantive completeness of the decision"); Mater of M-P-, 20 I&N Dec. 786 (BIA 1994).
Accordingly, remand of the record is necessa to allow the Immigation Judge to make these
1 We review fndings of fct, including credibility fndings, fr clear eror. See 8 C.F.R.
§ 1003. l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F .R. § 1003 .1 ( d)(3)(ii).
2 Te respondent also presented additional evidence on appeal aimed at carrying his burden of
proof (Resp. Brief at Tabs B-G). As an appellate body, we cannot consider this evidence. See
8 C.F.R. § 1003.1 (d)(3)(iv); Matter of Fedorenk, 19 l&N Dec. 57 (BIA 1984). However, in
light of our disposition of this matter, although the respondent has not explained how this
evidence is new and previously unavailable, te Immigration Judge. may consider the documents
ad any other evidence the parties wish to present in the course of remanded proceedings.
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Cite as: Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)
A088 276. 788
fctual fndings. See 8 C.F.R. § 1003.l(d)(3)(iv) (limiting our fct-fnding authority on appeal to
talng administrative notice of certain curent events or the contents of ofcial documents);
Matter ofS-H-, supra.
Upon remand, the Immigration Judge shall evaluate the identity evidence presented by the
respondent aimed at establishing that Y ogesh Pandya ad Rajesh Dave are the sae person.
Should the Immigation Judge fnd that the respondent's fther is Rajesh Dave, the benefciay of
the labor cerifcation in question, she should then consider whether the labor certifcation was
approvable when fled, and specifcally, whether the petition was non-fivolous, in light of the
benefcia's use of an alias. See 8 C.F.R. §§ 245.IO(a)(2), 1245.10(a)(3) (requiring that a labor
certifcation be non-fivolous in order to qualif fr gandfthering); see also Matter of Butt,
26 I&N Dec. 108, 117 (BIA 2012) (explaining that a fivolous labor certifcation is one that is
deemed to be "patently without substance").
Additionally, the Immigration Judge shall consider whether the respondent is the benefciary
of an approved and/or pending visa petition though which he could ultimately apply fr
adjustment if he is in fct a grandfthered alien (OHS Brief at 2; Tr. at 4, 12, 23-26, 38-39; Resp.
May 4, 2010, Pretial Memorandum at Tabs A-C). 3 See section 245(i)(l)(B) of the Act
(requiring an alien to have a approved visa petition and an available priority date befre he may
adjust); see Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (outlining the crteria fr
continuances sought by respondents who are the benefciaries of pending visa petition
applications); see also Ferriera v. United States Attorney General, 714 F.3d 1240
(11th Cir. 2013) (requiring the Board to apply the criteria set frh in Matter of Hashmi, supra,
when deterining the propriety of a continuance request sought fr a pending visa petition).
Without such a petition, the respondent will not ultimately be eligible to adjust, without regard to
his grandfthering status.
4
3 Although the Immigration Judge did not make any fral fndings regarding any pending or
approved petitions fled on the respondent's behalf, the respondent indicated, tough counsel
below, that he had maried, divorced, and remarried his United States citizen wife, such that it is
unclear whether he is the benefciary of a visa petition fled by his wif on his behalf fllowing
the couple's second mariage. See 8 C.F.R. §§ 205. l(a)(3)(i)(D); 1205.l(a)(3)(i)(D) (providing
that a petition fled by a citizen on behalf of her alien spouse is automatically revoked upon the
legal terination of the mariage).
4
We also note that on June 15, 2012, the Secretary of the OHS anounced that cerain young
people, who are low law enfrcement priorities, will be eligible fr deferred action. The
respondent may be eligible fr defrred action, and we encourage the paies, upon remad, to
explore this and ay alterative dispositions that may be available in this case as a result.
See generally Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Also, inforation regarding
DHS's Consideration of Defred Action fr Childhood Arrivals may be obtained on-line
(ww .uscis.gov or ww .ice.gov) or by phone on the United States Citizenship ad Immigration
Services hotline at 1-800-3 75-5283 or Immigation and Customs Enfrcement hotline at 1-888-
351-4024.
3
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Cite as: Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)
A088 276. 788
Based on the fregoing, we decline to address the balance of the respondent's appellate
aguments regarding whether he qualifes as a gandfathered alien based on the labor
cerifcation fled on behalf of Rajesh Dave (Resp. Bref at 1 I - I 9).
Accordingly, the fllowing orders shall be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORER: Te record is remanded fr frther proceedings consistent with this
decision ad fr the entry of a new order.
4
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Cite as: Nishad Yogesh Pandya, A088 276 788 (BIA Aug. 22, 2013)
,.·
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
File: A088-276-788 January 31, 2012
In the Matter of
NISHAD YOGESH PANDYA
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212 (a) (6) (A) (i) - in that the respondent
is an alien who is present in the United States
without being admitted or paroled, who arrived in
the United States at any time or place other than
as designated by the Attorney General.
APPLICATIONS: Adjustment of status under 245 (i) of the Act.
ON BEHALF OF RESPONDENT: DARA L. BERGER
1000 Abernathy Road, Suite 1115
Atlanta, Georgia 30328
ON BEHALF OF OHS: MARY LEE
Assistant Chief Counsel
Department Of Homeland Security
180 Spring Street, Southwest, Third Floor
Atlanta, Georgia 30303
ORAL DECISION OF THE IMMIGRATION· JUDGE
This matter comes to the Court on a Notice to Appear dated
November 10, 2009. At a Master Calendar hearing dated March 16,
1
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2010, the respondent admitted all six allegations contained on
the charging document and the charge under 212 (a) (6) (A) (i) was,
in fact, conceded. The Court found that the respondent was
removable as charged. Written pleadings were tendered to the
Court on that same date and the respondent designated the
country of India as the country of removal in the event that
that should become necessary.
Relevant to the proceedings at hand, the Government
tendered a motion to pretermit the application for adjustment of
status on July 27, 2011. The respondent filed�he reply to the
motion to pretermit. The allegation in this case is basically
that the respondent is 245 (i) eligible in that he is
grandfathered to a labor certification application that was made
allegedly on behalf of his father, which would grandfather him
in. There was a question that arose as to whether the
respondent would have to show physical presence, and that is not
the case. The Court is satisfied that there is a directive
indicating that the derivative beneficiaries of petitioners who
have applications that were approvable when filed would not have
to show physical presence. In fact, I believe the regulation is
8 C. F. R. 245.lO (n) . That not being an issue, let us go ahead to
the statement of the law that does apply here.
STATEMENT OF THE LAW
Adjustment of status is available to an alien who has been
inspected, admitted or paroled into the United States, is
A088-276-788 2 January 31, 2012
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eligible to receive an immigrant visa because he has an approved
visa petition, has an imigrant visa immediately available to
him at the time the application is filed because the
petitioner's priority date, if applicable, is current and is
admissible to the United States for permanent residency. See
Section 245 (a) of the Act. As adjustment of status is a
discretionary form of relief, the alien must also show the he
merits a favorable exercise of discretion. See Matter of Patel,
17 I&N Dec. 597 (BIA 1980) .
In addition to that, in this P?rticular case, INA Section
245 (i) applies. That section of law weighs the requirement of
inspection, admission or parole and the 245 (c) bars upon payment
of a $1, 000. 00 sum if the alien is the beneficiary of a visa
petition or labor certification filed on or before April 30,
2001. That application must be approvable when filed and
therein lies whether the respondent actually qualifies for
245 (i} eligibility. We need to look at the underlying labor
certification application and determine whether, in fact, it was
approvable when filed.
Regulations at 8 C. F. R. 245. lO (a) (3) specifically provide
that in order for labor certification to allow for the
grandfathering of either the petitioner or the derivative
beneficiaries, it must have been approvable when filed. That
is, the petition or labor certification must have been properly
filed, meritorious in fact and non-frivolous. This
A088-276-788 3 January 31, 2012
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determination is made based on the circumstances that existed at
the time the petition was filed and not whether there was later
a deficiency that arose.
RECORD OF PROCEEDINGS
The respondent tendered documentation to show that a labor
certification was, in fact, filed on behalf of a person named
Rajeshbi M. Dave. There is nothing in the record t6 show that
the respondent's father is, in fact, this one and the same
person as Rajeshbi Dave. In fact, in the application and the
documentation that was �ubmitted, the respondent's father
appears to be Yogeshbi Nagardas Pandya. In all documentation,
the respondent have referred to the father as YNP. There is
nothing to show that YNP and Rajeshbi M. Dave are one and the
same person. The respondent has had the opportunity to bring
forward testimony and documentation on several occasions. Those
deadlines to file documentation to show that the respondent's
father are one and the same have been ignored. The Court is
simply not convinced that Yogeshbi Nagardas Pandya and Rajeshbi
Dave are the same person. Specifically, there were statements
from the respondent's counsel that clearly indicated that the
respondent's father had fraudulently obtained a passport in the
name of Rajeshbi Dave. The Court takes this very seriously and
was not able to determine either by any type of testimony of the
witnesses that were brought forward whether Rajeshbi Dave and
Yogeshbi Nagardas Pandya are the one and the same person. There
A088-276-788 4 January 31, 2012
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I
was simply no testimony that provided any foundation that would
show that they are one and the same person.
Having said that, notwithstanding the testimony that was
provided, the Court has grave concerns about the identity of
this person in that respondent's counsel admitted that he had
obtained the passport by fraudulent means. It is anybody's
guess as to who this person is and whether, in fact, he is one
and the same person. Whether, in fact, he is the respondent's
father is the only issue before the Court and the Court is not
satisfied th?t the respondent has been able to establish that
Rajeshbi Dave is the same person as his father and therefore,
the application of labor certification cannot possibly be
determined to be approvable when filed. As such, the respondent
cannot then derive benefits from an application that was not
approvable when filed and 245 does not apply.
As the respondent has made no other applications for
relief, although the respondent was given the opportunity to
request a voluntary departure, at this time he has made no other
application for relief. The Court will then direct the
respondent's applications to be pretermitted. All applications
that were not filed at this time are deemed to be abandoned and
the respondent will be directed to be removed to the country of
India, the country which he indicated to be the country of
removal in the event that that should become necessary. The
respondent is afforded up to and including March 1, 2012, to
A088-276-788 5 January 31, 2012
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appeal this decision. Actually, both parties are, in the event
that either party reserves.
A088-276-788
MADELINE RCI
Imigtftion
January 31, ¬
6
..
·
January 31, 2012
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CERTIFICATE PAGE

I
i
I
'
I hereby certify that the attached proceeding before JUDGE
MADELINE GARCIA, in the matter of:
NISHAD YOGESH PANDYA
A088-276-788
ATLANTA, GEORGIA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
KAREN STOCKHAUSEN (Transcriber)
FREE STATE REPORTING, Inc.
APRIL 7, 2012
{Completion Date)
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