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Douglas Shitote, A200 224 343 (BIA March 6, 2014)

Douglas Shitote, A200 224 343 (BIA March 6, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) faulted the immigration judge for requiring the respondent and his out-of-state counsel to appear at the hearing rather than telephonically when the charges of removability were not contested and appearing in person required them to incur substantial financial difficulty to attend the hearing. The Board ultimately upheld the immigration judge’s decision to deny a change of venue, however, because the respondent was not eligible for any forms of relief. The decision was written by 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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) faulted the immigration judge for requiring the respondent and his out-of-state counsel to appear at the hearing rather than telephonically when the charges of removability were not contested and appearing in person required them to incur substantial financial difficulty to attend the hearing. The Board ultimately upheld the immigration judge’s decision to deny a change of venue, however, because the respondent was not eligible for any forms of relief. The decision was written by 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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 Mar 11, 2014
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Hurd, Rusten C., Esq.

Colombo & Hurd, PL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immi
g
ration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
5555 East Michigan Street, Suite 100
Orlando, FL 32822
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fw, Ste. 500
Irving, TX 75062-2324
Name: SHITOTE, DOUGLAS A 200-224-343
Date of this notice: 3/6/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Sincerely,
DO ct
Donna Carr
Chief Clerk
lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Douglas Shitote, A200 224 343 (BIA March 6, 2014)
1
U.S. Department of Justice
E·xecuti�e Ofcfor Immigration Review
Decision of the Board oflmmigation Appeals
Falls Church, Virginia 20530
File: A200 224 343 - Dallas, TX
In re: DOUGLAS SHITOTE
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Rusten C. Hurd, Esquire
CHARGE:
MAR 6 2014
Notice: Sec. 237(a)(l)(C)(i), l&N Act [8
U
.S.C. § 1227(a)(
l
)(C)(i)] -
Nonimmigrant - violated conditions of status (conceded)
Sec. 237(a)(3)(D),
I
&N Act [8 U.S.C. § 1227(a)(3)(D)] -
False claim of citizenship (fund)
APPLICATION: Change of venue
The respondent, a native ad citizen of Kenya, appeals fom the Immigration Judge's
March 27, 2013, decision denying his multiple requests to chage venue.
1
We will dismiss the
appeal.
We review fr clear eror the fndings of fct, including the determination of credibility,
made by the Immigration Judge. 8 C. F.R. § 1003.l(d)(3)(i) (2013). We review de novo all other
issues, including whether the parties have met the relevat burden of proof ad issues of
discretion. 8 C.F.R. § 1003.l(d)(3)(ii).
The respondent was admited to the United States as a nonimmigrat stdent on
August I 6, 2008, and conceded that he violated the conditions of his status (I.J. at 1; Exh. 1;
Tr. at 34). In addition, the respondent signed a swor statement wherein he admitted that he
claimed to be a citizen of the United States on an Employment Eligibility Verifcation For
(Form I-9) in order to obtain employment and checked the box indicating that he was a "citizen
of the United States" (I.J. at 3-4; Exhs. 4-5; Tr. at 47). Accordingly, the Immigration Judge also
fund the respondent removable under section 237(a)(3)(D) of the Immigration and Nationality
Act (Act), 8 U.S.C. § 1227(a)(3)(D) (1.J. at 4).
1 In his Notice of Appeal, the respondent also challenged the Immigration Judge's decision to
deny his request fr a continuance. The record refects that the respondent did not request a
continuance at his fnal hearing befre te Immigration Judge, and the Immigration Judge
granted his prior requests fr continuaces (Tr. at 9-10, 40, 45-52). Additionally, the
respondent's appellate brief does not discuss the decision to deny the continuance. Terefre,
we will not address the issue.
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Cite as: Douglas Shitote, A200 224 343 (BIA March 6, 2014)
A200 224 343
.
.
On appeal, the respondent maintains that the Immigration Judge erred in denying his motions
to change venue (Resp't Br. at 6-9; November 14, 2012 Motion; December 19, 2012 Motion;
Tr. at 33, 40-41). The Immigration Judge denied the motions because he concluded that
removability was contested (l.J. at 2; Tr. at 41). See Chow v. INS, 12 F.3d 34 (5th Cir. 1993).
An Immigration Judge may, fr good cause, order a change of venue upon motion by one of
the parties, afer the charging document has been fled with the Immigration Court.
8 C.F.R. § 1003.20(b). Good cause is determined by balancing the fllowing fctors:
administative convenience, expeditious treatment of the case, the location of witnesses, and the
cost of transporting witesses or evidence to a new location. See Matter of Rahman,
20 I&N Dec. 480, 482-83 (BIA 1992) (citing Matter of Rivera, 19 I&N Dec. 688 (BIA 1988);
Matter of Velasquez, 19 l&N Dec. 377 (BIA 1986)). The Immigration Judge did not address
these fctors.
Additionally, we conclude that the Immigration Judge's reliance solely on Chow was
misplaced. In Chow, the Immigration Judge permitted the respondent's attorey in another state
to appear telephonically and waived the respondent's presence, but ordered that the respondent's
original attorey (who was in the same state as the Immigration Cour) appear at the hearng.
Chow v. INS, supra, at 37. Under these circumstances, the United States Court of Appeals fr
the Fifh Circuit deterined that the Immigration Judge did not abuse his discretion and upheld
the Board's deterination that it is not unreasonable fr an Immigration Judge, in the exercise of
discretion, to deny a motion fr a change of venue where te alien's deportability remains at
issue. Id. at 39 (afrming Matter of Chow, 20 l&N Dec. 647, 652 (BIA 1993)). In the case sub
judice, the Immigration Judge did not allow the respondent's out-of-state attorey to appear
telephonically
2
and did not waive the respondent's presence. Instead, the respondent and his
attorey apparently had to travel, potentially resulting in substantial fnancial diffculty
(Tr. at 31-33, 41). See Matter of Rahman, 20 l&N Dec. 480, 482 (BIA 1992) (discussing the
prejudice to the goverment when detainees either had to be transported �undreds of miles or
released on parole). In addition, the respondent conceded removability under section
237(a)(l)(C)(i) of the Act, such that removability was not at issue and jurisdiction befre the
Immigation Court had been established (l.J. at 1; Tr. at 34).
Notwithstanding the fregoing problems with the Imigration Judge's decision, we
ultimately agee with his conclusion that the respondent's motion to change venue was
unsupported by good cause (l.J. at 2). Here, we note that the respondent seeks a change of venue
to pursue an application fr adjustment of status under section 245 of the Act (Resp't
Nov. 19, 2012, Motion fr a Change of Venue; Resp't Dec. 20, 2012, Amended Motion fr a
Change of Venue). However, to obtain adjustent of status, the respondent bears the burden of
establishing that he is admissible. See 8 C.F.R. § 1240.S(d); Matter of Zamora-Molina,
25 l&N Dec. 606, 609 (BIA 2011). Under section 212(a)(6)(C)(ii) of the Act, 8 U.S.C.
§ I I 82(a)(6)(C)(ii), the respondent is inadmissible if he flsely represented himself to be a
United States citizen fr any purpose or beneft under the Act or any other federal or state law.
In light of the decision to sustain the charge under section 237(a)(3)(D) of the Act in fnding that
2 The Immigration Judge apparently mistakenly believed that he had granted the respondent's
frst motion to appear telephonically (Tr. at 34 ), when in fct he had denied the motion
(Tr. at 31).
2
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Cite as: Douglas Shitote, A200 224 343 (BIA March 6, 2014)
�200 224 343
the DHS established by clear and convincing evidence that the respondent represented he was a
United States citizen, we agree with the Immigration Judge's conclusion that the respondent is
not statutorily eligible to adjust his stats (I.J. at 3-4). Compare section 212(a)(6)(C)(ii) of the
Act with section 237(a)(3)(D) of the Act (outlining the same requirements generally in
establishing a flse claim to United States citizenship fr inadmissibility and removabilit
puoses).
Additionally, the respondent has not asserted that he is eligible fr ay additional frms of
relief. On appeal, the respondent has . not provided any evidence, arguments, or a profer
regarding how the outcome in these proceedings would have been altered had his motion to
change venue been granted. Accordingly, the respondent has not demonstrated that he was
prejudiced by the Immigration Judge's decision to deny his motion. Seet e.
g
.t
O
g
unfye v. Holder, 610 F.3d 303, 306-07 (5th Cir. 2010) (explaining that to prevail on a due
process claim, an individual must demonstrate with substantial evidence that te error could have
changed te outcome of proceedings).
Õ ·
The fllowing order will be entered.
ORDER: The respondent's appeal is dismissed.
Mq
FOR THE BOARD
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Cite as: Douglas Shitote, A200 224 343 (BIA March 6, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
File: A200-224-343
In the Matter of
March 27, 2013
DOUGLAS SHITOTE
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Violation of Section 237(a)(1)(C)(i);
Additionally, 237(a)(
3
)(D).
APPLICATIONS: No relief claimed.
ON BEHALF OF RESPONDENT: SONALI PATNAIK
ON BEHALF OF OHS: SEAN MCCRORY
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male native and citizen of Kenya who was issued a
Notice to Appear on Januar 26, 2012. At a master calendar previously held, the
respondent appeared with his attorney of record and admitted allegations 1 through 4,
denied allegation 5. Additionally. the respondent conceded his removability from the
United States under Section 237(a)(1 )(C}(i). and denied his removability from the United
States under Section 237(a)(3)(D). The respondent, through his attorney, designated
Kenya as the country of removal. The record would also reflect that the respondent
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.� ·�
continues to be represented by an attorney named Rusten Hurd. Mr. Hurd failed to
appear in court on January 23, 2013, without leave of the Cour. The Court will also
note that today the respondent is accompanied by a diferent attorney, Ms. Sonali
Patnaik, who has filed an entry of appearance as the non-primary atorney. ·
The continued absence of Mr. Hurd continues to be unexplained.
The Cour will also note that on November 29, 2012, the Cour, by written
order, denied a motion to change venue in this case to Florida. In accordance with the
authority of the Fifh Circuit in Chow v. INS, 12 F.3d 34 (5th Cir. 1993), the Fifth Circuit
afirmed a decision of the Board indicating that it was not improper to deny a change of
venue when removability remains contested, which is the facts of this case.
Additionally, the respondent certified and ratified in cour on August 2, 201 2 that he
continues to reside in For Worh, Texas, which contradicted the information provided in
tab C of the motion to change venue. The respondent then filed another motion to
change venue, which was also denied by written order on December 20, 201 2. Again,
the respondent continued to deny his removabilit and to contest the charges, and
therefore, in accordance with the Fifh Circuit's decision in Mater of Chow, the Court
denied the second request to change venue.
In support of its charges, the Government of the United States had
previously tendered a copy of a SEVIS report, which was marked and admited without
objection as Exhibit 3. The Government also produced a copy of an 1-21 3, which was
marked and admitted without objection as Exhibit 2. The Court received and previously
marked fr identification only a copy of a revised Form 1-9, and received and marked for
identification only as Exhibit 5 a copy of a record of sworn statement made by the
respondent.
A200-224-343 2
� ¯ ® ··--- Ëv º
March 27, 2013
W . • Ñ
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' '
On today's date, Ms. Patnaik, counsel for the respondent, indicated that
she had no objection to the admissibility of Exhibit 4 or Exhibit 5. Therefore, Exhibits 4
and 5 were marked and admitted without objection.
On today's date, counsel for the respondent indicated that they just
wanted to take an order on the ground of removabilit that had been previously
conceded, and not address allegation 5 or the remaining charge under Section
237(a)(3)(D). However, that is not the decision of the respondent to make. The
Government of the United States indicated on the record that they wanted to continue
the false claim charge.
In support of allegation 5, the Government drew the Court's attention to
Exhibits 4 and 5. Exhibit 4 indicated on the revised (updated) new Form 1-9 that the
respondent marked the block indicating that he was a citizen of the United States.
The Court is aware of old precedent from the Board which indicated that
simply marking a block on an 1-9 form was insuficient evidence to sustain a ground of
removability as a false claim to U. S. citizenship. However, the Court finds that that prior
precedent from the Board is factually distinguishable from the current case. Prior Board
precedents were decided on the old Form 1-9, which contained the combined question,
are you a citizen or national of the United States. That is not the form used in this case.
The current case (see Exhibit 4) contains the new Form 1-9, in which the question is
solely, are you a citizen of the United States, to which the respondent marked yes.
Additionally, this case is factually distinguishable from prior Board
precedent in that we have the additional evidence in the form of a handwritten sworn
statement by the respondent. See Exhibit 5. On January 26, 201 2, the respondent
executed a statement under oath in his own handwriting to oficers of the Deparment of
Homeland Security in which he acknowledged, 111 checked the document as a United
A200-224-343 3 March 27, 2013
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·•
States citizen, and in return, I was given a job." That statement has not been disputed
by the respondent.
The Board has told us previously that seeking employment in the United
States is a purpose for benefit under the Act.
The Cour will also note that the respondent, through his attorney, made
no argument as to Exhibit 4 or 5, made no argument contesting the charge, and
produced no evidence in response to Exhibit 4 or 5.
Therefore, based on the evidence submited by t
t
e Government as par of
Exhibit 4 and 5, the Court finds that the Government has met its burden of establishing
by clear and convincing evidence that the respondent is removable from the United
States as charged under Section 237(a)(3)(D) of the Act. The Court further finds that
factual allegation 5 is fully supported by Exhibits 4 and 5, and finds allegation 5 to be
true.
Therefore, based on the admissions and concessions with regard to the
237(a)(1 )(C)(i) charge, and the Court having sustained t removability under Section
237(a)(3)(D), the Court finds that the respondent is removable from the United States as
charged. As indicated previously, his attorney had previously indicated that Kenya was
designated as the country of removal.
Counsel for the respondent was asked to identif any relief that they had
available, and his attorney indicated on the record that he has no relief available, they
just want to reserve appeal.
ORDERS
IT IS HEREBY ORDERED that the respondent be removed from the
United States to the nation of Kenya.
A200-224-343 4 March 27, 2013
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The respondent will be advised of his appeal rights separately on the
record.
signature
A200-224-343
Please see the nex page for electronic
MICHAEL P. BAIRD
Immigration Judge
5 March 27, 2013
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= ª
/Isl/

(
Imigration Judge MICHAEL P. BAIRD
bairdm on June 27, 2013 at 9:13 PM GMT
A200-224-343 6 March 27, 2013
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