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Gerald Morisset Boisvert, A041 905 505 (BIA Jan. 29, 2014)

Gerald Morisset Boisvert, A041 905 505 (BIA Jan. 29, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for a hearing on whether the respondent intended to abandon his lawful permanent resident status by signing Form I-407 in order to obtain medical treatment abroad. The Board noted that the DHS bore the burden to prove abandonment by clear and convincing evidence. The decision was written by Member Linda Wendtland and joined by Member Roger Pauley and Member Patricia Cole.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for a hearing on whether the respondent intended to abandon his lawful permanent resident status by signing Form I-407 in order to obtain medical treatment abroad. The Board noted that the DHS bore the burden to prove abandonment by clear and convincing evidence. The decision was written by Member Linda Wendtland and joined by Member Roger Pauley and Member Patricia Cole.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Feb 09, 2014
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03/28/2014

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Synder, Leslie I.

4000 Ponce de Leon Blvd, Ste. 470
Coral Gables, FL 33146
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
OHS
/
ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite
2
00
Miami, FL 33130
Name: MORISSET BOISVERT, GERALD A 041-905-505
Date of this notice: 1/29/2
014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Cole, Patricia A.
Sincerely,
Do c w
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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U.S. Deparent of Justice
Executiye Offc� fr Immigation Review
Decision of the Board of Immigration AppeaJs
Falls Church, Viginia 20530
File: A04 l 905 505 - Miami, FL
I re: GERLD MORISSET BOISVERT
I RMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RSPONDENT: Leslie I. Snyder, Esquire
ON BEHALF OF DHS: Maia T. Armas
Assistant Chief Counsel
CHARGE:
Date:
Notice: Sec. 212(a)(7)(A)(i)(I), I&N A
ct (8 U
.S.C. § 1l82(
a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document
APPLICATION: Reopening
JAN
2 9 2014
In a decision dated April 25, 2011, the Immigration Judge terminated the respondent's
removal proceedings witout prejudice, fllowing the respondent's completion of an 1-407 Form,
abandoning his lawfl permanent resident (LPR) status.
On March 9, 2012, the respondent fled a Motion to Calendar to Claif the issues of his
lawfl peranent residence, wit a request fr voluntary departue. The Department of
Homelad Security (DHS) fled a opposition to the respondent's motion. The Immigration
Judge deemed te respondent's motion to calenda as a motion to reopen. We fnd that teating
the Motion to Calenda as a Motion to Reopen was apprpriate, given that the deadlines fr
motions to reopen do not apply in this instance, as no removal order was entered in this case.
On Mach 28, 2012, the Imigration Judge denied the respondent's motion to reopen on the
gound that te respondent executed a Form 1-407, Abandonment of Lawfl Permanent Resident
Status, and is terefre no longer a lawfl permanent resident. The respondent has appealed this
decision. We will sustain the appeal, and remand the record, so that the Immigration Judge can
conduct a heaing on whether the respondent abandoned his lawfl permanent resident status.
On appeal, the respondent agues that although he executed a Form 1-407 abandoning his
lawl peranent residence, that is not dispositive of this case, as he claims that he did not intend
to abandon his residence. He also asser that the Immigration Judge erred and abused her
discretion in failing to aford him adequate due process.
The record is unclear as to whether on Mach 9, 2012, when the respondent fled his motion
to reopen, he was outside te United States and in Spain. In any event, even if te respondent
had departed and was outside the United States when his motion was fled, the Eleventh Circuit,
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A041905 505
the jusdicton in which this case arises, held, in Jian Le Lin v. US. At'. Gen., 681 F.3d 1236
(11th Cir. 2012), that the prohibition in 8 C.F.R. § 1003.2(d) on motions to reopen where the
person is outside the United States is contrary to section 240(c)(7)(A) of the Act, 8 U.S.C.
§ 1229a(c)(7)(A), permitting one motion to reopen, and is therefre invalid. Under these
circumstaces, there is no question that the Immigation Judge had jurisdiction to enterain the
respondent's motion, even if it was fled when he was outside the United States.
We note that pursuant to 8 C.F.R. §1001.l(p), the status of an alien accorded LPR status
terinates upon ent of a fnal order of deportation, removal, or rescission. No order of
removal was entered against the respondent in tis case, and the proceedings therefre did not
operate to divest the respondent of his LPR status. Although the respondent apparently signed an
1-407 during the hearing, he now claims that he did not genuinely intend to abandon his LPR
status, and did not understand the import of what he was signing. The respondent never had a
hearing on that claim, and the 1-407 itself says that the respondent is entitled to obtin a hearing
on the abadonment issue.
The DHS agreed to termination in this case to avoid an order of removal, if the respondent
agreed to abadon his LPR stats. Intent is a critical element in whether there was abandonent
of LPR stats. The Imigration Judge fund that if she had not terminated proceedings, she
would have issued an order of removal, and the respondent could have appealed such order to
this Board. The respondent opted to frego tis option so he could retu to Spain fr medical
treatment. We note that the record refects that the respondent was advised to fle Form 1-407, so
that he could return to the United States fom Spain as a tourist under the Visa Waiver Progra
(I.J. at 2). The "beneft" in this case was the ability of the respondent to ret to the United
States a a B-2, which ultimately was denied.
The DHS ca mae the "beneft of the bargain'' argument, and any argument relying on the
respondent's previous representation, during a hearng on remand. In addition, any aguments
regadig abadonment and coercion, and whether the respondent understood the "bagain," can
be made on remad as well. We note that under longstanding judicial precedents the DHS has
the burden to prove abadonment by clear and convincing evidence.
Under these circumstances, we will sustain the respondent's appeal, and remand the record in
accordance with the fregoing opinion.
Accordingly, the fllowing order will be entered:
ORER: The appeal is sustained and the record is remanded to the Immigration Court fr
fer proceedings consistent with the fregoing opinion.
c �ow iLJ
FOR THE BOAR
"
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� · ·�
I
un!D
·
STATES DEPARTMENT OF JUST:h
EXECUT:! VE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRTION COURT
MIAMI, FLORIDA
INRE:
Gerald Morisset Boisvert
A 041-905-505
For the Respondent:
Leslie I. Snyder, Esq.
4000 Ponce de Leon Blvd., #4 70
Coral Gables, FL 33146
IN Removal PROCEEDINGS
For the Deparment of Homeland Security:
Maria Annas, Esq.
Assistant Chief Counsel
Immigration & Customs Enfrcement
DECISION ON RESPONDENT'S MOTION TO CALENDAR
On March 9, 2012, new counsel fr the Respondent fled wth the Immigration Cou a
"motion to calendar to clarif the issues of the Respondent's lawfl permanent residence."
Counsel's motion also requests clarifcation on the Respondent's eligibility fr voluntary departure.
A review of the record indicates this matter was last befre the Court on April 25, 2011, at which
time the Court terminated removal proceedings without prejudice fllowing the Respondent's
completion of a 1-407 frm abandoning his lawfl permanent residence status. Respondent's motion
is deemed a motion to reopen proceedings.
At the April 25, 2011, hearing the Respondent testifed under oath that he has been living and
working as a medical doctor in Spain fr many years. Although he owns a house in te United
States, he never actually resided in the house. His purpose in coming to the United States in
September 2010, was to fnd out why his nephew was not frwarding to him the rental income fom
the property. Thereafer, the Respondent was going to retur to Spain to continue with his medical
treatment fr a leg injury he sustained in 2009 in Spain. Prior to September 2010, the Respondent
stated he had last been to the United States fve or six years earlier to take exams in Puerto Rico.
The Respondent stated that afer his medical treatment was completed, he wanted to retu to live
in the United States, since he was now retired. The Respondent was in a hurry to ret to Spain to
continue with his medical treatment.
Based on the Respondent's testimony, the Court clearly explained to the Respondent that it
fund he had abandoned his lawfl permanent residence status and would be entering an order of
removal against him. The Court explained to the Respondent his appeal rights as well as his
ineligibility fr voluntar departure. Contrary to new counsel's asserions in the motion to reopen,
the Court did consider the Respondent's eligibility fr voluntary departue, but fund that he was not
eligible because he had not been physically present in the United States fr one year pror to issuance
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.. -
of the Notice to Appear. Additionally, as an arrival alien, the Respondent was not eligible fr "pre­
concJusion" voluntary deparure under section 240B(a)(l) of the Act. See section 240B(a)(4) of the
Act.
Te Respndent did not want to have a rmoval order enterd against him, ad he was also
in a hurr to retr to Spain fr medical treatent. The Deparment of Homeland Security, taing
into consideration the Respondent's age and circumstances, agreed to a terination of Respondent's
removal proceedings, and thus avoid an order of removal, if the Respondent agreed to complete the
required frm abandoning his residence. The Respondent would thereafer be able to retur to the
United States as a tourist with his Spanish passpor under the visa waiver program. The Court notes
the Respondent was represented by counsel at the hearing, and the Respondent was able to consult
with him. The Court is satisfed that the Respondent understood the natre and object of the
proceedings. The proceedings were "conducted in a manner that satisfes principles of fndamental
fairess." Matter of M-A-M, 25 l&N Dec. 474, at 479 (BIA 2011).
Although removal proceedings were ·terminated, the Respondent executed an 1-407
abandoning his resident status. Therefre, the Respondent is no longer a lawfl permanent resident
of the United States. The Cour notes the Respondent's removal proceedings were handled in a way
to beneft the Respondent and not negatively impact his ability to retur to the United States under
the visa waiver program as a Spanish citizen. If proceedings had not been terminated, the Cour
would have issued an order of removal against the Respondent, and he thereafer could have
appealed the decision to the Board of Immigration Appeals. However, the Respondent wanted to
retur to Spain fr treatment and chose not to pursue this option.
Accordingly, Counsel fr the Respondent's motion to reopen is hereby DENIED.
DONE and ORE ED in Chambers this 2g•h day of March, 2012.
c�stant District Counsel
 �nsel for Respondent
 espon�

 i
Mailed out �ByV
�. J �
ariopez 
U.S. Immigration Judge
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