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Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)

Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for consideration of the respondent's request for administrative closure to pursue a provisional unlawful presence waiver (Form I-601A). The Board instructed the immigration judge to determine whether he would be subject to permanent unlawful presence bar under INA 212(a)(9)(C), for which no waiver is available. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for consideration of the respondent's request for administrative closure to pursue a provisional unlawful presence waiver (Form I-601A). The Board instructed the immigration judge to determine whether he would be subject to permanent unlawful presence bar under INA 212(a)(9)(C), for which no waiver is available. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 Jul 02, 2014
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Ai, Jonathan Y.
103 N Adams St., 2n
d
Fl
Rockville, MD 20850
Name: Ayebae, Benjamin Ayemoba
U.S. Department of Justice
Executive Ofce fr Imigation Review
Board of Immigration Appeals
Ofce of the Chief Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief of Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 073-602·922
Date of this Notice: 5/1/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
Donna Carr
Chief Clerk
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)
U.S. Department of Justice.
Executive Ofce fr Imigation Review
Decision of te Boad of Imigation Appeals
Falls Church, Virginia 20530
File: A073 602 922 - Batimore, MD
I re: BENJAMIN A YEMOBA A YEBAE
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Jonathan Y. Ai, Esquire
ON BEHALF OF DHS:
CHARGE:
Car ie E. Johnston
Senior Atorey
Date: MAY 0 1 2014
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -
Present without being admitted or paroled
APLICATION: Terination; astative closure
The respondent appeals the June 28, 2012, denial of his motion to terminate ad his motions
seeking administative closure. The Immigation Judge concluded that the respondent did not
establish tat he was lawflly admitted to the United States or that administative closure was
warated to await fnalization of regulations that would potentially enable te respondent
to seek lawfl status while abroad. The appeal will be dismissed in part, ad the record will be
remanded.
The respondent has admitted that he is not a citizen or national of the United States and he
is a native ad citizen of Nigeria (I.J. at 1, 4; Exhs. 1-2). Te burden thu shifed to the
respondent to establish by clea and convincing evidence that he is "lawflly in te United States
pursuat to a pror admission," or that he is "clearly ad beyond a doubt entitled to be adtted
to the United States and is not inadmissible as charged." Section 240( c )(2)(A) of the
Immigation and Nationality Act, 8 U.S.C. § 1229a(c)(2)(A); 8 C.F.R. § 1240.8(c).
The respondent testifed that he entered the United States sometime befre 1995, obtained
a driver's license ad social security card, ad reted to Nigeria in 2003 (l.J. at 1-3;
Tr. at 24-25, 41 ). Te respondent decided to tavel to the United States in 2007 afer leaing
tat beginnig on January 8, 2008, he would not be allowed to cross the border wit only
a driver's license (l.J. at 2; Tr. at 31-32). He taveled on British Airways fom Lagos to Belize,
and then to Tiuaa by bus (l.J. at 2-3; Tr. at 32, 37). Te respondent purchased a Mexicoach
bus tic�et to enter the United States (I.J. at 2; Tr. at 32-33). According to the respondent, when
the bus reached te border, the respondent stood in a line fr lawfl peranent residents, and the
ofcer allowed hm to enter afer inspecting his driver's license and social securit cad (I.J. at
2
;
Tr. at 33-34). The respondent lost the driver's license and social secuty card, as well as the
passport he used to enter Belize (I.J. at 3; Tr. at 34-38). He also has no paperwork related to his
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Cite as: Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)
A073 602 922
. fight to Belize or his subsequent bus trips (I.J. at 3; Tr. at 37-38). I addition, te respondent
h no records corroboratng his tip to Washington, DC, on Amtak aer he entered te
United States (I.J. at 3; Tr. at 40).
On appeal, te respondent asser tat te Immigation Judge made an adverse credibility
fnding. While the Immigation Judge described the respondent's testimony as "self-serving,"
she did not fnd that he lacked credibility (l.J. at 4). Rather, she concluded that he did not submit
sufcient evidence to demonstate by clear and convincing evidence that he is lawlly present in
the United States pursuat to a prior admission (I.J. at 4). Seesection 240(c)(2)(A) of the Act;
8 C.F.R. § 1240.8(c). Since the question whether the respondent was previously allowed by a
ofcer to enter the United States (tereby being admitted) is fctual in nature, we review the
Immigation Judge's fnding fr clear eror. See8 C.F.R. § 1003. l(d)(3)(i).
We affr the holding that the respondent's testimony and supporing afdavits/letters of
fends ad faily ae insuffcient to ca y his burden of proof (l.J. at 4; Ex. 2, Tabs D-F; Ex. 3,
Tabs G-H). Along these lines, we obsere that the supportng statements only indicate tat the
witesses were told of te respondent's intention to oyto obtain admission by using his driver's
license and socia secuity cad. This does not in ad of itself show that the witesses had
knowledge that the respondent succeededin doing so. Moreover, while the respondent testifed
tat he lost all relevat documentay evidence, he has not explained his inbility to obtan
replacement docuentation fom te travel providers he used (l.J. at 4; Tr. at 38-39). I tese
circumstces, we hold that the Immigration Judge did not clealy err in fnding that the
respondent has not shown by clear and convincing evidence that he is "lawflly in te
United States pursuat to a prior admission," or tht he is "clearly ad beyond a doubt entitled to
be admited to the United States and is not inadmissible as charged" (.J. at 4). Section
240(c)(2)(A) of the Act; 8 C.F.R. § 1240.8(c); see also |nitedStatesv. Antone, 742 F.3d 151,
159 (4t Cir. 2014) (stating that "clear ad convincing evidence" is that which suppors "a fr
belief or conviction, without hesitancy, as to the truth of the allegations sought to be established")
(interal quotation omitted).
Next, the respondent asserts that the Imigration Judge shoud have granted administative
closure because he is te benefciary of an approved visa petition fled on his behaf by his
United States citizen wife (For 1-130) (Ex. 6). During the fal heaing, the respondent's
counsel stated that if regulations providing fr a waiver of his unlawfl presence were fnalized,
the respondent would move to recalendar ad seek terination of these removal proceedings
(1.J. at 4; Tr. at 84-85). The respondent would ten ret on hs own to Nigeria ad pursue
consular processing unhindered by any removal order or other impediment to seeking lawl
status while abroad (I.J. at 4-5; Tr. at 84-85, 88-89). Counsel reiterates tis clam on appeal. On
the oter had, the Depament of Homelad Secuty ("DHS") indicated that it opposed
administative closure ad terination (l.J. at 5; Tr. at 58, 68, 85-87; DHS's 5/3/12 fling).
The new rule cited by the respondent on appeal was fnalized in Januy of2013. See78 Fed.
Reg. 536 (Ja. 3, 2013). It expressly contemplates a possible grat of administrative closure
while a applicant seeks a "unlawfl presence" provisional waiver though For I-601A,
fllowed by a request fr terination or dismissal of proceedings without prejudice fr aliens
whose waiver requests are ultimately approved, so that the alien (if such terination is grated)
will not be under a removal order when he depas fr his immigrat visa interiew abroad.
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Cite as: Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)
A073 602 922
See id. We will remand fr reconsideration of te respondent's request fr administative
closure in light of this new regulation pursuant to Maaer of4vetisyan, 25 I&N Dec. 688
(BIA 2012). However, in evaluating wheter administative closure is wa  anted, the
Immigation Judge should deterie wheter the respondent, upon any depaure, would be
inadmissible uder a ground other than section 212(a)(9)(B) of te Act, 8 U.S.C. § 1182(a)(9)(B),
such a section 212(a)(9)(C). In this regad, the new regulation contemplates a provisional
waiver fr only those aliens who, upon deparure, would be inadmissible only due to accrual of
unlawfl presence uder section 212(a)(9)(B) of the Act. See78 Fed. Reg. at 545.
Accordingly, te fllowing order is entered.
ORDER: Te appeal is dismissed to the extent that the respondent agues that he established
his admission into the United States, ad te record is remaded fr fer proceedings
consistent with this decision.
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Cite as: Benjamin Ayemoba Ayebae, A073 602 922 (BIA May 1, 2014)
In the Matter of
United States Department of Justce
Executve Ofce fr Immigration Revew
ImoCor
Baltimore, Maryland
In Removal Proceedigs
Benjam Ayemoba AYEBAE Case #A 073 - 602 - 922
Respondent
Charge: Immigation ad Nationality Act ("INA") § 212(a)(6)(A)(i)
Applcations: Adminstrative Closure
Key Hearing Dates: Mach 16, 2012, and June 27, 2012
Appearances: Jonatha Ai, on behalf of Respondent;
Carrie Johnston, on behalf of the Depament of Homeland Securit
Decision and Order of the Immigration Judge
The Respondent is a native and citizen of Nigea. He was issued a notice to appear
(NT A) on July 28, 2011. I written pleadings, the Respondent admitted allegations 1-2, dened
alegations 3-4, ad denied removability as chaged in the NT A. I te event that Respondent is
reoved, te county desigate fr reoval is Nigeria.
A conteste reova heang was held on March 16, 2012. Te fllowing documenta
evidence was considered by te Court and admitted into the record at that hearing: Exhibit 1, the
Notice to Appear; Exhbit 2, te Respondent's Writen Pleadings, Bref i Suppor of Claimed
Lawfl Admission, ad Atachmets Tabbed A-F; ad Group Exhibit 3, te Respondent's
Supplemental Witess Filing G-H. (Exhibit 4, Witess Filing, was maked fr identifcation
puroses only due to the late fling without good cause. Also in te record at tis point is Group
Exhibit 5, the Respondent's Motion fr Administrative Closure and Attachents A-J; ad
Exhibit 6, the I-130 approval notice.)
At the individual heang on removabilit on March 16, 2012, the Respondent testifed.
Brefy summarized, he testifed that he resides in Bowie, MD, with his wif. He is fom
Nigeria. He cre to the U.S. He then depaed the U.S. in 2003. It was in September, 2003. He
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wenfto Lagos, Nigeria. At that time, he lef behid his daugter and his now-present wif in te
U.S., a well as his brother and his cousin. His daugter is a U.S. citizen. His now-spouse is a
USC. His brother and his cousin and the cousi's children ae USCs.
Afer he lef the U.S., he spoke around November 2003 to his now wife Nogzi Ayebae.
(They maied in 2011.) He asked aout their daugter. In 2004, they spoke again. He told her
that he realized that he could come back to the U.S. with his driver's license but he did not have
money. He told her he was thinking about coming back to the U.S.
He also spoke to his fend Taiwo. He knew he ad his wif taveled to Jaaica wit a
driver's license. Te Respondent told him he migt tr to do tat.
He aso spoke to his cousin and his brter. His cousin is Michael. His brote is
Anthony. Wit tem, he told them it was his idea to come into te U.S. with his driver's license.
They had numerous conversations like tat. He was in Nigeria fr tree and a half yeas.
I 2005 or 2006, his cusin came to Nigeria. They spoke a litle about tat. He told him
tat fnaces were the problem. In 2006, his now wif came to vsit and brougt teir daugter.
She asked h whether he caved in on his plan to try to come to te U.S.
She reted to the U.S. with their daugter.
I 2007, he was on te interet. He saw someting uder immigration tat fom Jauar
8, 2008 you would not be alowed to come into the U.S. fom borders with a driver's license. He
was concered. He called and told his now-wife that he could not wait any longer and would t
now.
He spoke to all of tem that he was going to try.
He bought a plae ticket and boarded a plae to Belize fom Lagos. From tere, he went
into Mexico. He went by bus fom Belize to Mexico. He a ived in the Tijuaa area by bus.
When he got thee, he got tere in the moring. He knew that he could tae a bus across the
border. He went to a stall fr Mexicoach. He purchased a bus ticket to enter the U.S.
He boaded the bus, ad it took them to the border. He remembered that there were a lot
of cas on one end ad a bus line on the other end. They went in there. There were citizens and
permaent residents lines. He went into the line fr legal permaent residents.
The ofcer asked him fr his i.d. He took out his driver's licene ad hs social security
card. He looked at it ad hi and then let him pass troug. He gve the docmets to hi and
waved him in. He put his bag through a machine and then enteed the U.S. on fot.
On crss-eaination, he aswered aditiona queions.
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He used a Maland State driver's license. He does not have that license. He lost it. He
'
has a police report. He did not submit that into evidence in his case.
He does not kow when the drver's license was issued. He thought it was supposed to
expire in 2008. He went to renew it a few weeks later afer he entered. He has no docwentation
on te renewal.
He lost the social security card too. He was asked when he lost it. He hesitated and he
then sad it was Augst or September 2011.
He was aske how he obtained the social securit cad. He got it aound 1997 or so. He
was maried at that time. Tat is how he got the social securty cad. He got it troug the social
securty administaton.
He took British Airays. He did not have a ticket or any confraion that he tavele
aound then. He purchased the ticket in Lgos. He chose to go to Belize because he kew tat it
was an easier port to get into.
He said the visa to get i was easy. He had a visa to get into Belize. He does not have
that passpor aymore. He wa ake why not. He said that he lost a lot of stf whe he cae
in ad moved aound. He wa asked when he lost the passport. He looke aound, and he ten
said he thougt it was in 2008.
He has no paperwork related to te bus trip. He did not think tat he would be doing this
today. Otherwise, he would have kept his receipts. He was asked ifhe tried to get confration
of his tavels. He did not.
He pad fr eveing in cash.
When he entered the U.S., he took the blue line bus to the Amtrak station. He took
Amtak to DC. He has no records relating to his trip.
He stayed wit Taiwo afer he ar ved in DC. It was aoud the 30'
h
of September.
He entered in 1995 and stayed until 2003. He did have work authorization. He had a
pending pettion by hs earlier wife. He lef volw1taly. I was afer immigation court
proceedings.
His daughter was bor May 3, 2000.
He did not t to get a vsa to come back lawflly. He said tat it was costly and yu have
to wait.
He got ma e i Setembe 2011.
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·
He was not awae that he would have to keep records.
Te Court heard brief closing agents on removability. Respondent ages that he
entered lawflly in Setember 2011. Respondent arges tat credibilit is key. Respondent's
counsel agues tha the Respondent is cedible.
DHS ages that the burden is now on te Respondent to demonstrate by clear and
convincing evidence tat he was in te U.S. pusuat to a lawfl admission.
DHS agues tere is evidence of a intent to enter, but that there is not suffcient evidence
of te claimed metod of enty or tavel. DHS notes tat there is a claim tat he had a passpor
ad visa, and that it is suspect tat every piece of documentation has been lost
In the case of a respondent charged a being i te U.S. witout beng admited or
paroled, the Goveent must frst establish te alienage of the Repondent. Once alienage has
bee estalished, unless te Respondet demonstrates by clea and convincing evdence tat he
or she is lawflly in the US pursuat to a pror admission, te Respondent must prove tat she or
she is ceary and beyond a doubt entitled to be admitted to te U.S. ad is not inadmissible as
chaged. 8 CFR § 1240.8(c); 240(c)(2).
Wit respect to reovaility, te Cout fnds tat the Respondent is reovable as chaged
by clea ad convincing evidence. All allegations ad te chage will be sustaed. Notably, te
Respondet has conceded alienage. As such, the Respondent has the burden of deonstating by
clear ad convincing evidence that he is lawflly in the US pursuant to a pror admission. On
ths record, the Respondent has not met his burden. Tere simply is not sufcient supporting
evidence of te Respondent's claim. His testimony is self-serving, and it is thus reasonable to
view it wit skepticism. While he claimed he had a passport ad visa, DHS is corect that it is
curous that eve piece of docuentaton has been lost. The Respondent has not been able to
obtan ay sort of replacement documentaton, ad there appea to be no reliable records t
suppor his claim. Letters fom fiends and fmily are entitled to less weigt a they can be
presued to have a interest in helping te Respondent. Te Cou accordingly concludes that
te Respondent has not met his buden. All alegations ad te charge of reovabilit ae
sustained.
The Respondent has requested administative closure, now thoug two successive
motion. DHS opposes administatve closure. The Respondent essentialy seeks admiistrative
closure so that DHS can fnalize reglations that mgt peit him to fle fr a provisiona wave
of unawfl presence while he is in the U.S. and to retur to Nigera so that he ca  fle fr
adjustent of status based on the approved 1-130 fled by hs wif. Respondent's counsel
explained in court on June 27, 2012 that, if te reglations are fnalzed in a paicula fr such
tat the· Respdet could tae· advntage of them and if the Responet wa gte a
provisional waive, the Repondent would te move to reclendar proceeings and seek
terination of prceedings. T1en, the Respondent would inted on his own to retur to Nigeia
ad csula pces fe frm a reoval order or othe apparet impetto hs
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tment. DHS, however, has indicated that it utimately would be opposed to terination of
· proceedings fr that purose and considering the fctors present in this case.
Te Court concludes tat administrative closure pursuant to Matter of Aveytisan, 25 I&N
Dec. 688 (2012), is not warrated. DHS opposes administrative closure, in pa as the
Respondent would not ultimately be eligible to adjust status in the U.S. even if the regulations
ae fnalized (and fnalized in a way that is advantageous to him) ad as DHS would be
ultimately opposed to termination. DHS rightly notes that te Respondent was previously
ganted voluntar depae. He reted without prope authoration. Administative closure
is not being sougt on the basis of a paicular petition being. apprved; rater it is being sougt
on the speculative basis that regulations possibly in his fvor will be fnalized. Tat is qute
uncertain. In any event, the ultimate outcome of the proceedings once recalendare would likely
be removal not terination, given DHS's opposition and tat the Cour is not persuade that a
adeuate basis fr tenination ha been provide.
Te Respondent's request fr administrative closue is hereby denie. Te Respondent
has made no oter applications fr relief, ad he aclowledges that he is not eligible fr
voluntar depae. Te Respondent will therefre be ordered removed fom te Unted States
to Nigera.
Order
I is ordeed that the Respondent's request fr administative closure is hereby denied.
It is frther ordered that the Respondent is to be removed fom te United States to
Nigeria.
A eal Riats
Each pay has the rigt to appeal this Cour's decision to the Boad of I igation
Appeals. Any appeal must be fled within 30 calenda days of the maling of this decision.
Under the reglations, a notice of appeal must be received by the Boad by that deadine. Te
notice of appeal must also state te reasons fr the appeal. See 8 C.F.R. § 1240.15.
Advisal Regarding Compliance With Court's Removal Order
I accordance with 8 C.F.R. § 1240.13, the Respondent is hereby advised tat te
Respondent must depart te United States in accordance with ts Cour's order and that any
failue to depart culd lead to serious consequences, including the imposition of civil ad
crmina penalties under IA §§ 243 ad 274D.
Date: June 28> 2012
. � . '
Eiizfe A. Kesle
hmiga6on Judge
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