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Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)

Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.

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Nightingale, Zachary, Esq.

U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fals Church, Vrginia 20530
Van Der Hout, Brigagliano & Nightingale
LLP
OHS
/
ICE Ofice of Chief Counsel - SFR
P.O. Box 26449
San Francisco, CA 94126-6449
180 Suter Street, Fifh Floor
San Francisco, CA 94104-029
Name: YE, XINGCHEN A 078-694-496
Date of this notice: 11
/
8
/
2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Malphrus, Garr D.
Mann, Ana
Mullane, Hugh G.
Sincerely,
Do  c t
Donna Car
Chief Clerk
yungc
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)
t"

.
U.S. Deparment of Justce
Executive Ofce fr Itmigation Review
Decision of the Board oflmmigation Appeals
FaJls Church, Virginia 22041
File: A078 694 496 - Sa Francisco, CA
In re: XIGCHEN YE
IN RMOVAL PROCEEDINGS
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: Zachary Nightingale, Esquire
ON BEHALF OF OHS: James B. Gildea
Assistant Chief Counsel
APPLICATION: Termination of proceedings; remand
NOV -8 2013
The respondent has appealed a Immigration Judge's decision of August 7, 2012, fnding
that te respondent had abandoned his lawfl permanent resident ("LPR") status. While the
appeal was pending, the respondent fled a motion to remad, which the Department of
Homeland Securty ("DHS") has OPposed. The record will be remaded to the Immigration
Í,
Judge.
We review fr c1ea eror the fndings of fct, including the deterination of credibilit,
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues,
including wheter the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § 1003.1 (d)(3)(ii).
Where, as here, the respondent has a colorable claim of LPR status, the buden is on the
DHS to demonstrate by clear, uequivocal, and convincing evidence that the respondent
abandoned that status. Khoshahm v. Holder, 655 F.3d 1147 (9th Cir. 2011). In order to quaify
as a returing resident, a alien "must be retuing to a urelinquished lawfl permaent
residence afer a temporay visit abroad." See Singh v. Reno, 113 F .3d 1512, 1514 (9t Cir.
1997). A trip is a "temporary visit abroad" if (a) it is fr a "relatively short" period, fxed by
some early event; or (b) te tp will terinate upon the occurence of a event that has a
reasonable possibility of occuring wthin a relatively shor period of time. See Chavez-Ramirez
v. INS, 792 F.2d 932, 937 (9 Cir. 1986). If the alien's trip abroad is not "relatively shor," it is
a "temporay visit abroad" only if the alien has "a continuous, uninterupted intention to ret to
the United States during the entirety of her visit." See Khodagholian v. Ashcrof, 335 F.3d 1003
(9th Cir. 2003). Factors to be considered in evaluating the respondent's intent to retur to the
United States include: "the alien's family ties, property holdings, and business affliations within
the United States, and the alien's faily, property, and business ties in the freign couty."
Singh v. Reno, supra, at 1514-15.
Te respondent was granted LPR status in 2004 and was placed in removal proceedings
in April 2010. The Immigration Judge fund that te respondent had abadoned his status,
citing to the fct that between 2004 ad 2010, the respondent spent a minimal number of days
in the United States, ad he got maried, had children, and started his own business in China.
Tñ. ñ
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Cite as: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)
«¯
. AQ78 694 496
The Immigration Judge specifcally noted the deah of documentay evidence of the
respondent's ties to the United States (l.J. at 10), the lack of affdavits fom family or fiends
(I.J. at 12-13), the lack of proof t�at. he maintained any rental units or had any property
ownership in the United States (l.J. a

. 10, 12).
With his motion, the respondent· has submitted evidence of his United States business ties
(Motion, Exhs. B l-C6), afdavits fom his United States citizen family members (Motion,
Exh. A, 2-4), documentation of the ba account he maintained in the United States (Exh. A12),
as well as evidence he says indicates that, during the years in question, he paid rent to maintan
a residence here (Motion, Exh. A2) and owned, registered, and paid taxes on the car which he
kept in the United States (Motion, Exh. A, 5-8). The respondent has also submited medical
evidence regarding his fther's illness and death which he said caused him to remain in China in
2005, as well as evidence of his own medical problem that he said delayed his ret in 2010
(Motion, Exhs. D ad E).
Although the evidence profered by the respondent was previously available, he asserts a
claim of inefective asistace of counsel against his frer attorey fr failing to advise the
respondent to produce such evidence (Motion, at 14-20). He also claims that his atorey
filed to advise him of the consequences of a removal order, namely the 10-year bar fom
retuing to the United States, and did not give him the option of withdrawng or renouncing
his LPR status (Motion, at 23; Tr. at 100-08).
The respondent has complied with the requirements set frth in in Matter of Lozada, 19 l&N
Dec. 637 (BIA 1988), fr ineffctive assistance of counsel claims (Motion, Exh. H, 2-5).
We will remand fr the Immigration Judge to evaluate the inefective assistance claim and to
determine whether the respondent ha established the requisite prejudice. See Dent v. Holder,
627 F.3d 365, 373 (9 Cir. 2010) (prejudice "means that the outcome of the proceeding may
have been afected by the alleged violation"). 1 Accordingly, the fllowing orders shall be
entered.
ORDER: Te respondent's motion to remad is granted.
FURTHER ORDER: The record will be remanded to the Immigration Judge fr fher
proceedings consistent with the fregoing opinion and fr the entry of a new decision.
 �
R THE BOARD
1 Given our disposition of the motion, we need not adjudicate the respondent's appeal at
this time.
2
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Cite as: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
File: A078-694-496
In the Matter of
XINGCHEN YE
RESPONDENT
SAN FRANCISCO, CALIFORNIA
August 7, 2012
IN REMOVAL PROCEEDINGS
CHARGES: Section 212(a) (7) (A) (i) (I) of the Immigration and
Nationality Act as amended as an Irigrant who, at the time
application for admission, was not in possession of a valid
unexpired Immigrant visa, the entry permit Border crossing card,
or other valid entry document required by the Act and a valid
unexpired passport or other suitable travel document or
documents of identity and nationality as required under the
regulations issued by the Attorney General under Section 2ll(a)
of the Act.
APPLICATIONS: Abandonment of residence.
ON BEHALF OF RESPONDENT: ROBERT CUMMINGS, ESQUIRE, 2000 BROADWAY
STREET, REDWOOD CITY, CALIFORNIA 94063
ON BEHALF OF OHS: JAMES B. GILDEA, ESQUIRE, 120 MONTGOMERY
STREET, SUITE 200, SAN FRANCISCO, CALIFORNIA 94104
ORAL DECISION OF THE IMMIGRTION JUDGE
Respondent is a married male, native and citizen of
China. The Department of Homeland Security instituted
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proceedings against the Respondent with the issuance of a Notice
to Appear dated April 12, 2010. A copy of this notice is
located in the record at Exhibit 1.
At a Master Calendar hearing held on April 27, 2011,
Respondent admitted allegation one, two, and three in the Notice
to Appear, denied allegations four and five and denied the
charge of removability. Respondent sought to get an abandonment
of residence hearing. Respondent declined to designate a
country of removal so the Court directed China.
In addition, Respondent sought to apply for
cancellation of removal pursuant to EOIR 42A. This relief is
available to lawful permanent residents, to excuse or waive
crimes. However, Respondent, in this case, is not eligible for
such relief nor, for that matter, has he submitted any type of
application. Therefore this request will be considered waived.
The Court held a hearing on Respondent's claim on
August 7, 2012. At this hearing, Respondent submitted several
documents and testified in support of his claim.
EVIDENCE OF THE HEARING
The evidence of the hearing consisted of the
following. Exhibit 1 was the Notice to Appear. Exhibit 2 was a
document submitted by the government, including the record of
sworn statement given the Respondent on April 5, 2010, as well
as a record of Respondent's entries back and forth from the
United States. Exhibit 3 consisted of a declaration from the
A078-694-496 2 August 7, 2012
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Respondent, a statement of entries and departures, a CV and
resume of the Respondent, two copies of certificates for the
Respondent's two Masters' Degrees, a letter that purports to be
from Intel. However, the Court notes that it does not have a
certificate of translation as required and 8 C. F. R. will give
limited weight to this document. Exhibit H, 3H, was a letter
from an individual named Kristen Durham from Bay Area Council.
Ms. Durham was not made available. A letter from Ron Collier,
what appears to be a declaration of an individual named Naomi
Brochus. Ms. Brochus and Mr. Collin Snyder, then, were made
available, a declaration from Minerva Yang, again Ms. Yang was
not made available. Respondent also submitted tax documents
from 2005 to 2007, as well as a copy of his older passports, and
what purports to be copies of Respondent's older passports, some
documents relating to his purchase of a property in 2007, as
well as a copy of Respondent's lawful permanent resident card,
and a title for a car dated 08/04/2004. Respondent, in Exhibit
4, submitted a deed for property purchase in 2011. And Exhibit
5 consisted of a certificate of title for an automobile dated
2011. Exhibit 6 consisted of a 1994 letter from an individual
back at his university. And Exhibit 7 consisted of the 2011
taxes. Respondent also testified in support of his application
and his testimony can be briefly sumarized as follows.
Respondent is a native and citizen of China.
Respondent entered the United States sometime in 1994.
A078-694-496 3 August 7, 2012
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Respondent claimed he entered here to go to school. He
explained that he came to the United States on an F-1 visa to
study at the University of Illinois in Urbana, Illinois. He
obtained two Masters' Degrees, one in English Literature and
English Language and a second one in Information Science. After
these degrees, he went on to work several years for various
companies in the United States. Respondent explained that
around 2004 his father became ill and he had spent approximately
10 years in the United States so instead he chose to return back
home to spend some time with his father. He explained that his
father had·been suffering from Parkinson's so he returned to be
with him.
In 2005, his father passed away. Respondent, however,
decided to remain in China because at that time he had a job
offer with Intel in China. Respondent explained that this job
we very interesting to him and he thought he would be a good fit
there so he remained with Intel Company until October 2008.
Respondent testified and the record reflects Respondent went up
the corporate ladder with Intel China in 2008. He was
responsible for a new product and he was asked to head-up this
spinoff company, Nanosoft in China. He explained that ·they are
connected and interdependent on Intel and he continues to
head-up this company.
Respondent testified that he originally obtained his
LPR stats sometime in 2003 but somehow he never got the card
A078-694-496
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August 7, 2012
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until November of 2004. Respondent discussed the fact that
while he was living in China and working for Intel he did have
and was concerned about his status in the United States. He was
advised by Intei attorney, through email, that he would not lose
his status in the United States provided that he kept returning
and paying taxes. As a result, Respondent kept filing taxes
from 2004 to the present. He also maintained a car here or
claims to have maintained a car herlnd has provided a title- to
that effect. Respondent also discussed how he would routinely
travel to the United States but would try to spend less than 30
days every month to avoid tax consequences.
Respondent also testified that back in China he was
viewed as an Aerican and he was taxed more heavily and he
points to a letter from Intel showing his green card number.
Respondent also discussed his personal life and
extended family. He stated that he has a sister who is a U. S.
citizen and lives in Massachusetts. He has several cousins here
in the United States, one in Massachusetts and one in
California. Both are U. S. citizens. As for his imediate
family, Respondent testified he is married to a woman who is a
lawful permanent resident and together they have two children
that were born in Hong Kong. Respondent discussed how his wife
is a lawful permanent resident and that she owns some property
in New York, apparently some sort of condominium that they sold
and together they have purchased a property here in California.
A078-694-496 5 August 7, 2012
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Respondent discussed how both his children were born in Hong
Kong and neither of them have status. He explained that they
are very young.
Respondent testified that it is his intent and his
wife's intent to return to the United States, live here, and
raise their children. He explained he feels American and that
this is his home and that he wishes to spend the rest of his
life here. He explained that the opportunities here are better,
the educational system is better, and he wants his children to
be raised here in the United States. He and his wife intend to
return and raise their children and educate them and they are
merely waiting for approval for the children's cards,
particularly once their daughter, who is practically three and a
half to four years old will start kindergarten. They hope that
they will be able to begin her education here.
With respect to his other family, which was previously
discussed, was his sister and his wife. His mother continues to
live in China.
Respondent testified that, although he filed taxes, he
has not paid taxes in these last few years, to his knowledge,
that he relied upon the advice of a f rie�d preparing his taxes
for filing singly and he has not made any efforts to correct
these representations of filing these taxes.
Respondent claims that he did not intend to abandon
his U. S. residency. He acknowledged that between 2004 and 2010
A078-694-496 6 August 7, 2012
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he spent only approximately, according to this Court's
calculations, approximately 61 days in the United States.
Nevertheless, he explained that he would travel often and it was
not his intention to abandon and he, in fact, made efforts to
make sure that his status was legal through contacting the Intel
lawyer. Respondent also explained that since arriving in the
United States in April of 2010, he has returned back to China
several times and, in fact, only spent the last two months or so
in the United States despite knowing that his status was at
risk. He explained, first of all, that he heads up a company in
China and needs to be there, also that his children are very
young, and finally he had some sort of medical condition that
required emergency medical treatment in China.
Respondent also explained that his wife was unable to
come here today even though his wife and children live in China
and he did not think to ask other people to come testify.
Respondent, therefore, based on these documents and his
testimony, believes that he has established that he has not
abandoned his residency in the United States.
STATEMENT OF THE LAW
In order to qualify as a returning resident alien,
alien must have acquired lawful permanent resident status in
accordance with the laws of the United States and must have
retained that status from the time he acquired it and must be
returning to an unrelinquished lawful permanent resident after a
A078-694-496 7 August 7, 2012
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temporary visit abroad. See Matter of Huang, 19 I&N Dec. 749 at
757 (BIA 1988).
A trip is a temporary visit abroad if it is for a
relatively short period, fixed by some early event or the trip
will terminate upon the occurrence of an event that has a
reasonable possibility of occurring within a relatively short
period of time. See Singh v. Reno, 113 F. 3d 1512 at 1514 (9th
Cir. 1997), see Chavez-Ramirez v. INS, 792 F. 2d 932 (9th Cir.
198 6) .
Trips abroad of eight or nine months in consecutive
duration are not relatively short. See Singh v. Reno, supra at
1514. If an alien's trip abroad is not relatively short, it is
not a temporary visit abroad and only if the alien has a
continuous uninterrupted intention to return to the United
States during the time of his visit, the intent is not the
intent to return to the United States ultimately, but the intent
is to return to the United States within a relatively short
period of time, Singh at 1514.
Factors that the Court must consider in making
determinations on whether an alien harbored a continuous,
uninterrupted intention to return, including alien's family
ties, property holdings, business affiliations within the United
States, and an alien's family, property, and business ties in
the foreign country. See Khodagholian v. Ashcroft, 335 F. 3d
1003 at 1007 (9th Cir. 2003), an alien's desire to retain his
A078-694-496 8 August 7, 2012
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status without more is not sufficient. See Matter of Huang,
supra.
FURTHER ANALYSIS AND FINDINGS
I've listened to the Respondent. I've reviewed the
documentation in this matter and carefully observed his demeanor
during his testimony. Although this Court notes that Respondent
is subject to the provisions of the REAL ID Act, where he must
submit evidence regardless of credible testimony, this Court
notes that the Court did have some concerns regarding his
testimony, particularly with respect to his tax returns.
Respondent has a history of filing tax returns where he has made
claims of telling the truth where, in fact, these documents are
not truthful. This does raise the question if Respondent has
been truthful to this Court. Nevertheless, even if Respondent
did testify credibly, this Court is simply not persuaded that he
has maintained a continuous, uninterrupted intention to return
to the United States.
The Court first addresses the time that Respondent has
remained in the United States. In this case, the time at issue
is from 2004 to April 4, 2010. In this case, the Court notes
Respondent remained in the United States only approximately 61
days. That's approximately 10 days per year for the six years
he's had his lawful permanent residence. In fact, Respondent
was not even physically here when he was given his lawful
permanent resident card. This shows the Court that he was
A078-694-496 9 August 7, 2012
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simply not interested in living in the United States and
building a life in the United States for himself, rather he was
simply interested, in the future, having the ability to return
to the United States with his family. As further evidence of
this, since coming and knowing in April of 2010, that his status
was at risk, he yet again decided to return to China. Although
Respondent offers various explanations of why he chose to do
that, the Court finds it troubling that he would, knowing his
status was at risk in the United States, he nonetheless would
return to China and spend less than two months in the United
States. In this case, the Court really has no idea how much
time Respondent has spent in the United States in the last two
years since 2010, except only to assume that it's probably less
than 30 days a year, again serving further evidence that
Respondent is simply not interested in making a life for himself
in the United States.
In addition, with respect to ties in the United
States, this Court sees actually no ties here to the United
States. Respondent has a United States citizen sister, yet
failed to provide her or submit a statement from her or
evidence, in fact, that she is a United States citizen. He
claims to have property ties in the United States. The Court
notes, however, that the only property tie he had was a car from
2003. He has not proven, or claimed, or shown me that he has
paid taxes on it and in light of his other failures with taxes
A078-694-496 10 August 7, 2012
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and questionable taxes, this Court is not even sure that
Respondent has done that. Moreover, although Respondent
recently purchased a property, such property was purchased in
2011, giving the Court the impression he's trying to create
evidence or ties to the United States knowing full well that his
status was at risk. Respondent also claims his wife had some
property yet he provides no evidence, whatsoever, of his wife's
property ties, nor even a statement from his wife explaining·
that she had such property ties.
As for family ties, this Court notes Respondent's wife
was not here in the United States. This Court does not even
have a copy of Respondent's wife's lawful permanent resident
status. In addition, both his children were born overseas.
They do not have status in the United States. It is clear to
this Court that Respondent has virtually no ties to the United
States with respect to family. He also claimed to have two
cousins. Again, no evidence of any family members in the United
States except his own self-serving testimony.
In fact, it is clear that Respondent does and would
like to live in the United States, eventually bringing his
family here. However, what is certain here is that intent to
eventually return to the United States is simply not grounds for
showing that he had a continuous, uninterrupted intention to
return to the United States. The only explanation this
Respondent has given here is the illness of his father. This
A078-694-496 11 August 7, 2012
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Court is sympathetic to the Respondent. Certainly going and
spending some last days of his father's life is understandable.
And had Respondent done that and returned to the United States
after the death of his father, then the Court may rule
differently. However, �e 'nstead chose to remain in China
r1l
pursuing his careerthere.
Respondent submitted some evidence that he worked for
Intel in the United States but none of this shows that they
considered him a
U
. S. employee and the fact that he failed to
pay taxes or make any effort to show that he considered himself
living in the United States and had ties to the United States,
again belies any claim. There's no explanation why Respondent
was unable to find a job here in the United States to show his
interest in living a life here, rather, what has been
established here is that Respondent actually would, sometime in
the future, like his children to come to the United States and
go to school here. However, it is clear he had no intentions,
in these last years, to live in the United States, own property
in the United States, have his children born, or marry here in
the United States, or create a life for himself in the United
States. He did not own property. He did not have rental units.
He did not even bother paying taxes, or even filing proper
taxes, or making efforts to show he had an interest in doing so.
He claims to have friends and family here in the
United States. The Court notes that no one here came to testify
A078-694-496 12 August 7, 2012
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on Respondent's behalf and the letters and friends he claims are
all prior to 2004. This Court is certain that Respondent lived
here continuously from 1994 to 2004. He had friends and a life
here but from 2004 on there's simply nothing in this record that
persuades this Court to show that he had a continuous,
uninterrupted intention to remain in the United States. And as
noted, even since 2010 he has made it clear that he has no
interest in remaining in the United States. Therefore, based on
this finding, the Court finds that Respondent has not met his
burden of proof in establishing continuous, uninterrupted
intention to live in the United States, particularly his actions
here since knowing his status was at risk even further confirmed
this fact.
This Court is sympathetic to Respondent. Certainly,
he has an education here and would certainly like to raise his
children here but intent and wishes do not create a case. And
certainly, the fact that Respondent has shown me no efforts to
even bring his children here, even have them born here in the
United States show me that he's interested in creating a life
for himself. He can certainly return and continue his business
and his life in China with a visitor's visa for the business.
The Court also notes Respondent's made quite an effort to show
that he has business ties here to the United States and that he
has done much for business in the United States. That's
certainly a good thing. However, making efforts or positively
A078-694-496 13 August 7, 2012
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speaking about the United States abroad does not create an
uninterrupted, continuous interest or continuous establishment
to live in the United States. All it shows is that he thinks
highly of the United States. It's certainly not a factor this
Court has considered, or shown, or is required to consider for
this purpose. Accordingly, the Court will find that Respondent
has abandoned his United States lawful permanent residence, as
such, he does not have any status in the United States, and will
order him removed to China on the charges contained in the
Notice to Appear. So ordered this 7th day of August, 2012.
A078-694-496 14 August 7, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
LORETO GEISSE, in the matter of:
XINGCHEN YE
A078-694-496
SAN FRANCISCO, CALIFORNIA
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 Imigration Review.
sac/seh
NORMA DANFELT (Transcriber)
YORK STENOGRAPHIC SERVICES, Inc.
OCTOBER 1, 2012
(Completion Date}
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