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Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of an application for adjustment of status upon finding the respondent, who was paroled into the country prior to April 1, 1997, was improperly classified as an “arriving alien.” The Board also found the respondent could renew his application in removal proceedings because it had previously been denied by USCIS. The decision was written by Member Sharon Hoffman and joined by Vice Chairman Charles Adkins-Blanch and Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of an application for adjustment of status upon finding the respondent, who was paroled into the country prior to April 1, 1997, was improperly classified as an “arriving alien.” The Board also found the respondent could renew his application in removal proceedings because it had previously been denied by USCIS. The decision was written by Member Sharon Hoffman and joined by Vice Chairman Charles Adkins-Blanch and Member John Guendelsberger.

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01/06/2015

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5 I 07 Leesburg Pike. Suite 2000 Falls Church. Virginia 20530

Mathur, Sanjay S., Esq. Mathur Law Offices, P .C. 2989 N. Stemmons Freeway, Suite 1000 Dallas, TX 75247

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Immigrant & Refugee Appellate Center | www.irac.net

Name: NGUYEN, HIEP THANH

A 073-306-230

Date of this notice: 11/26/2013

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

DoYUtL ca.AA)
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon

lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

NGUYEN, HIEP THANH A073-306-230 ROLLING PLAINS DET CENTER 118 COUNTY ROAD 206 HASKELL, TX 79521

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

Immigrant & Refugee Appellate Center | www.irac.net

Name: NGUYEN, HIEP THANH

A 073-306-230

Date of this notice: 11/26/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this If the attached decision orders that you be decision pursuant to 8 C.F .R. § 1292.S(a).

removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

Don.JtL ca.;vU
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon

lulseges Userteam: Docket

Cite as: Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

U.S. Department of Justice
Ex.ecutive Office fo! Immigration Review

Decision of the Board of Immigration Appeals

Falls

Church, Virginia 20530
A073 306 230 - Dallas, TX Date:

File:

In re: HIEP THANH NGUYEN

NOV .2 6 2013
.

IN REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: Sanjay S. Mathur, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Adjustment of status; remand

The respondent, a native and citizen of Vietnam, appeals the decision of the Immigration Judge dated May 9, 2013, that determined that the Immigration Judge did not have jurisdiction to adjudicate the respondent's adjustment of status application and ordered the respondent removed from the United States to Vietnam. The Immigration Judge also issued Amended Orders dated June 3, 2013, that found he had no jurisdiction over this adjustment application because the respondent was an arriving alien.
On appeal, the respondent contends that the Immigration

Judge erred in finding that he did not have jurisdiction. The respondent also filed a motion to remand. The Department of Homeland Security has not responded to the appeal or the motion. The respondent's motion is granted and the record is remanded for further proceedings. The Immigration Judge erred in determining that he did not have jurisdiction because the respondent was an arriving alien. The record indicates that the respondent was paroled into the United States in 1994. The regulations initially provide that an alien remains an arriving alien even if paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act. See 8 C.F.R. § 1001.l(q). However, the regulation further stipulates that "an arriving alien who was paroled into the United States before April 1, 1997 . . . will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b){l)(A)(i) of the Act." Because the respondent was paroled into the United States in 1994, he should not be considered an arriving alien. Moreover, the respondent claims on appeal that the USCIS denied

his

application for adjustment of status and waiver of inadmissibility and, therefore, jurisdiction vests back to the Immigration Judge. The respondent is correct that an Immigration Judge also has jurisdiction to adjudicate an adjustment of status application which has been denied by USCIS and is renewed in removal proceedings. An alien (other than an arriving alien) whose adjustment of status application has been denied by USCIS has a right to renew the application in removal proceedings. See 8 C.F.R. §§ 245.2(a)(5)(ii), 1245.2(a)(5)(ii). Accordingly, the record is remanded to the hnmigration Court for further proceedings consistent with this order. ORDER: The respondent•s motion to remand is granted and the record is remanded to the Immigration Court for further action as appropriate and the issuance of a new decision.

Cite as: Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

�·�,
ORTliEBO

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT DALLAS, TEXAS

File: A073-306-230

May 91 2013

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of ) ) ) )

HIEP THANH NGUYEN RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(2)(A)(i)(I) of the Act.

APPLICATION:

Adjustment of status with waiver of inadmissibility pursuant to Section 212(h) of the Act.

ON BEHALF OF RESPONDENT: SONJl\Y H. Ml\DJ\R SANJAY H. MATHUR 2989 N. Stemmons, Suite 1000 Dallas, Texas 75247 ON BEHALF OF OHS: PEGGY PRICE, ESQUIRE Assistant Chief Counsel U.S. Department of Homeland Security Office of the Chief Counsel 125 E. John Carpenter Freeway, Suite 500 Irving, Texas 75062

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE The respondent is a native and citizen of Vietnam. The present action commenced when the Department of Homeland Security issued a Notice to Appear dated March 22, 2012. The Notice appears to have been served on the respondent on

1

the same day [Exhibit 1].1 In the Notice to Appear, the Department alleged that the respondent was inadmissible to the United States pursuant to Section 212(a)(2)(A)(i)(I) of the Act in that he was paroled into the United States on or about August 17, 1994, and that on or

Immigrant & Refugee Appellate Center | www.irac.net

about October 20, 1999, an application to adjust his status had been submitted by his U.S. citizen spouse. The application was denied according to the 1-862 Notice to Appear on May 17, 2002. However, on September 19, 2001, the respondent was convicted in the Criminal District Court Number I, Tarrant County, Texas, for the offense of indecency with a child by contact in violation of Section 22.021 of the Texas Penal Code. This conviction, according to the Department, made the respondent inadmissible under the provisions of Section 212(a)(2)(A)(i)(I) of the Act in that the respondent was convicted of an act which constitutes the essential elements of a crime involving moral turpitude other than a purely political offense. As noted above, at a Master Calendar hearing on April 2, 2012, the respondent admitted the factual allegations in the Notice to Appear and conceded the charge of removability. 2 For its part, the Department also submitted a copy of the Form 1-213, as well as the conviction documents, which are contained in the record as Exhibit 2. Based on the statutes, evidence and admissions, the Court sustained the inadmissibility charge under

1 The certificate of service seems to indicate that the Notice to Appear was served on March 21, 2012, actually one day before the issuance date on March 22, 2012. However, at the Master Calendar hearing on April 2, 2012, the respondent admitted that he had been properly served with the Notice to Appear. 2 The Court notes that originally the application also indicated that the respondent was an alien present in the United States who had not been admitted or paroled and that he was subject to removal based on 212(a) (6)(A)(i) of the Act. The Department amended the Notice to Appear to indicate that the respondent was in fact an arriving alien and not an alien present without being admitted or paroled. The 212(a)(6)(A)(i) charge was stricken from the Notice to Appear.

A073-306-230

2

May 9, 2013

Section 212(a)(2)(A)(i)(I) of the Act. The respondent designated adjustment of status with a waiver of inadmissibility pursuant to Section 212(h) as his avenue of relief. Following that hearing, it took several months for the 1-130 to be filed and then approved by USCIS. Upon receipt of the 1-130 approval, the Court eventually set the

Immigrant & Refugee Appellate Center | www.irac.net

matter for an Individual hearing on May 9, 2013. The Record of Proceedings shows that a number of exhibits were submitted in support of the application, including Exhibits 3, 4, 5, and 5-A. The Court notes that there is no medical examination in the Record of Proceedings at this point, however, there appears to be some evidence that the medical exam was in fact submitted to USCIS rather than to the Court. However, at the commencement of the Individual hearing on May 9, 2013, the Court became obliged to address the jurisdictional issue relating to the respondent. It appears that this Court does not have jurisdiction to rule on the respondent's application for adjustment of status or his waiver of inadmissibility. The Court notes that 8 C.F.R. 1245.2 indicates that the respondent would have to meet certain exceptions before this Court would have jurisdiction to adjudicate his application for adjustment of status since he is an arriving alien. Under that section, the Court does not have jurisdiction unless: (a) the alien properly filed the application for adjustment of status with USCIS while he was in the United States; (b) the alien departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue a

previously filed

application for adjustment of status; (c) the application for adjustment was denied by
USCIS; and (d) DHS placed the arriving alien in removal proceedings either upon the arriving alien's return to the United States pursuant to the grant of advance parole or after USCIS denied the application. In the present case, it does not appear that the respondent falls under the exceptions set forth in 8 C.F.R. 1245.2. The Fifth Circuit addressed this issue in

A073-306-230

3

May 9, 2013

Chambers v. Mukasey, 520 F.3d 446 (5th Cir. 2008). In that case, the Fifth Circuit ruled that Mr. Chambers, who was attempting to adjust his status through an application for adjustment of status filed after he entered the United States, was not subject to having said application adjudicated by an Immigration Judge.

Immigrant & Refugee Appellate Center | www.irac.net

This Court notes that the Fifth Circuit's ruling in Chambers is analogous to the present situation. It appears from the record that the respondent was paroled into the United States in 1994 and that he has had two different applications for adjustment of status denied. The present application was filed in late 2012 and not approved until February 2013 by USCIS. The application currently before the Court is not the previously filed applications filed earlier by first the respondent's brother and then the respondent's wife. The Court notes that the application by the respondent's wife was denied in 2002 and documentation on that denial is contained within the record of proceedings. It appears, therefore, that the Court does not have jurisdiction over the respondent's present application for adjustment of status. The Court does note that the respondent has been in the United States for 18 years on his present parole. While the Court is perplexed that the respondent would still be considered "an arriving alien" as a matter of logic, the Court is bound by the law to find that he is "an arriving alien," notwithstanding the fact that he has been in the United States for 18 years on his parole status. He was originally admitted under a public interest parole and that parole was indefinite. The Court also notes that the respondent does not fall within an exception that was set forth in regulation 8 C.F.R. 1245.7, which might have been a way for him to adjust his status before this Court. Under 8 C.F.R. 1234.7, there was a period of time when individuals who were nationals of Vietnam, who had been granted parole into the United States after being denied refugee status, would have been able to file an

A073-306-230

4

May 9, 2013

·�

adjustment of status application before the Court. However, in order to apply for that exception under 8 C.F.R. 1245.7, the respondent would have been inspected and granted parole into the United States between August 15, 1988, and September 30, 1990. The respondent did not receive his parole until 1994 and cannot, therefore, claim

Immigrant & Refugee Appellate Center | www.irac.net

the benefits of 8 C.F.R. 1245.7. Since it appears that the Court does not have jurisdiction over the respondent's application for adjustment of status, the Court is obliged to grant the Department's motion to pretermit the respondent's applications. In reaching this ruling, the Court does not make any comments as to the merit of the respondent's waiver of inadmissibility under Section 212(h) since it did not reach the issue because of the jurisdictional question. However, in the absence of any other viable applications for relief, the Court makes the following order: ORDER IT IS ORDERED that the Department of Homeland Security's motion to pretermit the respondent's application for relief be, and is, hereby granted for the reasons set forth above. IT IS FURTHER ORDERED that the respondent, having previously been found inadmissible to the United States by clear and convincing evidence and in the absence of any viable applications for relief and at the present time, be, and is, hereby ordered removed from the United States to Vietnam based on the charge contained in the Notice to Appear, as amended. Dallas, Texas, this 9th day of May, 2013.

Please see the next page for electronic signature

A073-306-230

5

May 9, 2013

JAMES A. NUGENT Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net
May 9, 2013

A073-306-230

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0

/Isl/
Immigration Judge JAMES NUGENT nugentj on September 11, 2013 at 12:43 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net
May 9, 2013

A073-306-230

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