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R-P-, AXXX XXX 024 (BIA Feb. 19, 2014)

R-P-, AXXX XXX 024 (BIA Feb. 19, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) denied a DHS appeal and upheld a grant of adjustment of status. The Board found the respondent was not inadmissible under INA 212(a)(2)(C) because of the small amount of marijuana at issue and the lack of evidence of any remuneration or commercial aspect to the transaction; not admissible under 212(a)(6)(C) because the fraudulent submission of a letter purportedly written by her father was not a “material” misrepresentation; and warranted a favorable exercise of discretion. The decision was written by Member Roger Pauley.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) denied a DHS appeal and upheld a grant of adjustment of status. The Board found the respondent was not inadmissible under INA 212(a)(2)(C) because of the small amount of marijuana at issue and the lack of evidence of any remuneration or commercial aspect to the transaction; not admissible under 212(a)(6)(C) because the fraudulent submission of a letter purportedly written by her father was not a “material” misrepresentation; and warranted a favorable exercise of discretion. The decision was written by Member Roger Pauley.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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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 Church, Virginia 20530

Goldblatt, Steven H., Esq. Georgetown Law, Appellate Litigation Program 111 F Street, NW Suite 306, McDonough Hall Washington, DC 20001

OHS/ICE Office of Chief Counsel 201 Varick, Rm. 1130 New York, NY 10014

NYD

Immigrant & Refugee Appellate Center | www.irac.net

2 4 7014
A -024

Name: P

, R

Date of this notice: 2/19/2014

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

DOnrtL cwvu
Donna Carr Chief Clerk

Enclosure Panel Members: Pauley, Roger

Luiseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: R-P-, AXXX XXX 024 (BIA Feb. 19, 2014)

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

Decision of the Board oflmmigration Appeals

20530 Date:

File: In re: R P

024 - New York, NY

FEB I 9

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Steven H. Goldblatt, Esquire

Sarah B. Campbell Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] In the United States in violation of law APPLICATION: Adjustment of status

The Department of Homeland Security ("DHS") appeals from the Immigration Judge's August 19, 2013, decision granting the respondent's application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). The appeal will be dismissed. First, the DHS argues that the respondent is ineligible for adjustment of status because she is inadmissible under section 212(a)(2)(C)(i) of the Act, 8 U.S.C. § 1182(a)(2)(C)(i), as an alien who the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance or is or has been a knowing, assister, abettor, conspirator, or colluder with others in the (DHS's Br. at 12-15). United States for permanent residence). illicit trafficking in a controlled substance See section 245(a) of the Act (requiring alien to be admissible to the The respondent testified that in May 2011, while she

was incarcerated, she picked up a package containing marijuana that was left in a communal shower, concealed it in her bra, and returned to her cell to await her friend's return (Tr. at 27075). She was caught with the drugs, and as a result, she was convicted of Promoting Prison Contraband in violation of New York Penal Law section 205.201(1) (Exh. 12). The DHS argues that the respondent's admitted involvement in this transfer of marijuana shows that there is "reason to believe" that she has been an illicit drug trafficker. We disagree. Specifically, we are persuaded by the respondent's appellate argument that her admitted conduct does not constitute "illicit trafficking" because of the small amount of marijuana at issue (two "baggies" that fit in her bra) and because there is inadequate evidence of any remuneration or commercial aspect to the transaction (Respondent's Br. at 29-32). Accordingly, we agree with the Immigration Judge that the respondent is not barred from adjustment of status as an alien inadmissible under section 212(a)(2) of the Act (I.J. at 10-11).

Cite as: R-P-, AXXX XXX 024 (BIA Feb. 19, 2014)

024

Next, the OHS argues that the respondent is inadmissible under section 212(a)(6)(C)(i) of the Act, as an alien who by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission to the United States or other benefit (Respondent's Br. at 1519). The respondent admitted that she submitted a letter in support of her adjustment application, purportedly from her father, when she in fact wrote the letter herself and signed his name (Exh. 30; Tr. at 364, 372). The OHS argues that this was a material misrepresentation that We disagree. Although the respondent made a warrants a 2 l 2(i) waiver of inadmissibility.

misrepresentation to the court, the misrepresentation lacks sufficient materiality to necessitate a waiver (l.J. at 4-5, 17). The respondent's father testified that he agreed with the content of the statement, detailing that he would provide the respondent financial support such that she would not become a public charge (I.J. at 15). Thus, the misrepresentation did not cut off a line of
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Immigrant & Refugee Appellate Center | www.irac.net

inquiry in the respondent's eligibility for relief.

Finally, the OHS challenges the Immigration Judge's discretionary grant of relief in this matter, pointing to, inter alia, the respondent's criminal record and disregard of her tax and child support obligations (Respondent's Br. at 25-33). While we consider this a close case, we The respondent has a lengthy ultimately agree with the Immigration Judge's decision to grant the respondent's adjustment of status application as a matter of discretion (I.J. at 17-19). parents, and a United States citizen sister. residency in the United States, two United States citizen children, lawful permanent resident The respondent was forthcoming during her presentation to the Immigration Judge regarding her criminal history and her efforts toward rehabilitation, such as earning her GED and taking anger management and parenting classes while incarcerated (l.J. at 7-8, 18-19). The record reflects that the respondent has been a repeated victim of domestic violence and does not have any support network in Haiti (l.J. at 910). Her mother and father both testified in support of her application and attested to the ways in which they would help her should she be granted relief. Specifically, her father will provide her housing and her mother, who currently has custody of the respondent's son, would help her reconnect and reunite with the child. On balance, we decline to disturb the grant of relief in this matter. Accordingly, the following order is entered. ORDER: The DHS's appeal is dismissed.

1

The OHS does not pursue further argument that the respondent is inadmissible under any other

grounds under section 212(a)(2) of the Act. 2

Cite as: R-P-, AXXX XXX 024 (BIA Feb. 19, 2014)

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