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Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)

Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a prior decision finding the Department of Homeland Security (DHS) did not meet its burden of showing the respondent was deportable under INA 237(a)(3)(D) based on her checking a box on Form I-9 declaring her to be a “citizen or national” of the United States, but finding her ineligible for adjustment of status because she did not bear her burden of showing she did not falsely claim citizenship to obtain a benefit under the INA. The decision was written by Member Neil Miller.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld a prior decision finding the Department of Homeland Security (DHS) did not meet its burden of showing the respondent was deportable under INA 237(a)(3)(D) based on her checking a box on Form I-9 declaring her to be a “citizen or national” of the United States, but finding her ineligible for adjustment of status because she did not bear her burden of showing she did not falsely claim citizenship to obtain a benefit under the INA. The decision was written by Member Neil Miller.

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02/04/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Cli11rch, Virginia 20530

Esquenazi, Marc, Esq. Schein & Esquenazi, LLP 14651 Dallas Parkway, Suite 123 Dallas, TX 75254

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: NYABWARI, EVERLINE GESARE

A 097-683-208

Date of this notice: 12/ 5/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincere1y,

DOYUtL ct1/lA)
Donna Carr Chief Clerk

Enclosure Panel Members: Miller, Neil P.

yungc Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)

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I

.U.S. Department of Justice
Executive Office for Immigration Review
Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A097 683 208 - Dallas, TX In re: EVERLINE GESARE NYABWARI IN REMOVAL PROCEEDINGS

Date:

OEC

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o £013

Immigrant & Refugee Appellate Center | www.irac.net

MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Marc Esquenazi, Esquire

Paul B. Hunker Chief Counsel

APPLICATION: Reconsideration This matter was last before the Board on September 26, 2013, when we sustained in part and dismissed in part the respondent's appeal and denied her motion to remand. On October 7, 2013, the respondent filed a timely motion to reconsider our decision. See section 240(c)(6)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). The Department of Homeland Security (DHS) opposes the motion, which will be denied. The respondent contends that the Board erred when it affirmed the Immigration Judge's decision to deny her request for a continuance based on a pending Form I-130, Petition for Alien Relative (Resp't Mot. to Reconsider at 3-5). The respondent's motion contains evidence that the respondent's United States citizen husband filed an I-130 petition on her behalf and that this petition was approved on September 1, 2011-after her removal hearing (id at Form I-171). The Immigration Judge found that the respondent was removable under section 237(a)(3)(D) of the Act on account of evidence that she had made a false claim of United States citizenship on two Employment Eligibility Verification Forms (Form I-9s).1 Based on this same evidence, the Immigration Judge denied the respondent's motion for a continuance based on her pending petition after concluding that the respondent was inadmissible under section 212(a)(6)(C)(ii)(I) of the Act as an alien who represented herself to be a citizen of the United States for any benefit under the Act. In proceedings and on appeal, the respondent argued that she did not deliberately make a false claim of citizenship when she marked the "citizen or national" box on the Form I-9s because, despite knowing that she was not a citizen, she did not know the meaning of the term "national" (l.J. at 16; Tr. at 63). Although the Immigration Judge found some aspects of the respondent's testimony not credible, he accepted her explanation that she was ignorant of the term "national" (1.J. at 10 & 16; Tr. at 63: 11) The Immigration Judge nevertheless sustained the charge of deportability llllder section 237(a)(3)(D) of the Act and found her to be inadmissible under section 212(a)(6)(C)(ii)(I) of the Act because it could be inferred that the respondent "was attempting to represent herself as
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1 The Immigration Judge also found the respondent was removable pursuant to sections 237(a)(l)(B), (C)(i) of the Act, and we affirmed this determination.

Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)

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A097 683 208 a United States citizen to gain employment" based on her deliberately false statement on the Form I-9s that she was authorized to work in the United States (I.J. at 16). The Board sustained the respondent's appeal insofar as it related to her deportability under section 237(a)(3)(D) of the Act because the Immigration Judge's reasonable inference did not discharge the DHS's burden to prove that the respondent was removable by clear and convincing evidence. See section 240(c)(3)(A) of the Act; 8 C.F.R. § 1240.8(a). However, we dismissed the respondent's appeal of the Immigration Judge's denial of her request for a continuance based on her pending I-130 petition because she had not carried her burden of proof that she was eligible for adjustment under section 245(a) of the Act (requiring, inter alia, that an applicant for adjustment be "admissible to the United States for permanent residence ....") (emphasis added). For purposes of adjustment, the respondent-not the DHS-bore the burden of establishing "clearly and beyond doubt" that she was not inadmissible under section 212(a)(6)(C)(ii)(I) of the Act. See sections 240(c)(2)(A), (4)(A) of the Act. The evidence in this case is equivocal, at best, as to the respondent's intentions when she marked the "citizen or national" box on the Form I-9s (I.J. at 16; Tr. at 63, 64, & 70).2 The respondent's motion acknowledges that the disjunctive nature of the phrase "citizen or national" is "ambiguous," and nothing in the record establishes that the respondent was attesting to being a national when she marked the "citizen or national" box on the Form I-9s (Resp't Mot. at 3). This ambiguity, while fatal to the charge of removability, was equally fatal to the respondent's application for adjustment of status. On this record, the Board applied tJJ.e proper burden of proof and determined that the respondent had not established that she was "clearly and beyond doubt" not inadmissible under section 212(a)(6)(C)(ii)(I) of the Act, a ground for which there is no waiver. Consequently, the Board properly found that the respondent was ineligible for adjustment of status under section 245 of the Act. 3 We therefore correctly dismissed her appeal of the Immigration Judge's decision to deny her request for a continuance to seek adjustment and denied her motion to remand on account of the approved 1-130 petition. The respondent's motion does not present any additional evidence that establishes, clearly and beyond doubt, her admissibility or her eligibility for adjustment of status. Accordingly, the Board will deny the respondent's motion to reconsider because there was no error of fact or law in our prior decision. Section 240(c)(6)(C) of the Act; 8 C.F.R. § 1003.2(b)(l); see also Matter of 0-S-G-, 24 l&N Dec.56, 57-58 (BIA 2006).

Immigrant & Refugee Appellate Center | www.irac.net

The record demonstrates that the particular section of the Form I-9s at issue is written in the disjunctive, (Exhs. 2 & 3), and the law recognizes a distinction between the terms "citizen of the United States" and "national of the United States." Cf section 325 of the Act.
3 This includes adjustment of status under section 245(i) of the Act, which does not waive alien's inadmissibility under section 212(a)(6)(C)(ii)(I) of the Act. an

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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)
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A097 683 208
ORDER: The respondent's motion to reconsider is denied.

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F01CTHE BOARD

QJ? l-----Immigrant & Refugee Appellate Center | www.irac.net

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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Dec. 5, 2013)

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