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Brett Richard Godke, A059 435 050 (BIA May 16, 2014)

Brett Richard Godke, A059 435 050 (BIA May 16, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in finding the respondent abandoned his petition to lift the conditions on his residency (Form I-751). The Board stated that the immigration judge should have reviewed the existing petition submitted to USCIS and provided the respondent an opportunity to submit additional evidence in support of the petition. The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and by Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in finding the respondent abandoned his petition to lift the conditions on his residency (Form I-751). The Board stated that the immigration judge should have reviewed the existing petition submitted to USCIS and provided the respondent an opportunity to submit additional evidence in support of the petition. The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and by Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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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10/13/2014

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Freshwater, Patricia, Esq.

Schwamkrug, Freshwater & Lopez, PLLC
P .0. Box 796844
Dallas, TX 75379
Name: GODKE, BRETT RICHARD
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Qfce of the Chief Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virgmia 20530
OHS/ICE Office of Chief Counsel - DAL
123 E. John Carpenter Fwy., Ste. 500
Iring, TX 75062-2324
A 059-35-050
Date of this Notice: 5/16/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hoffman, Sharon
Manuel, Elise
Sincerely,
Donna Carr
Chief Clerk
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)
U.S. Deiarent of Jutice
Exve O c for I gon Rview
Deson of te Bod of Im gon Ap
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FalCu Vi 20530
File: A059 435 050 - Dalas, T
I re: BRTT RCHD GODK a.k.a. Bre Godae
l ROVAL PROCEIGS
APPEA
Date:
ON BEHLF OF RSPONDET: Patcia Freshwater, Esquire
MAY 1 6 2014
APPLICATION: Joi peition to remove conditional basis of residence (or 1-751)
Te respondent appeals fom an Immigation Judge's decision dated August 13, 2012,
fndin that he h abandoned his petition to remove the conditional basis of his lawfl
perent residence stats (or I-751), that his application fr voluny deaure was
aandone, ad ordering his remova to India. The appel will be sustained, ad the reord will
be remande to the Imgation Judge fr fher proce ngs.
Te Boad revews an Immigation Judge's fndings of fc including fndings a to the
credibility of testimony, unde the "clealy eroneous" stdard. 8 C.F.R § 1003. l(dX3)(i). The
Boad reviews questions of law, discretion, and judgen ad all othe isses in appeals fom
decisions of Immigation Judges de novo. 8 C.F.R § 1003. l(d)(3)(ii).
We aee with the respondent's agument on appeal tat the applicable regulations do not
reuire him to fle a new Form I-751 peition, and that te Immigation Judge should have
revewed ad. adjudicated the joint petion that had been denied by the Unted Stes
Immigration ad Citizenship Serice ("USCIS") on December 21, 2009 (which wa in the record,
Exh. 3), 1 rathe tha fnding that he had abandoned the application beause he did not fle a new
application. A te respondent poins ou the aplicable regulations provide fr "review in
remova proceings of join peition under seon 216( c )( 1) of the Ac not orgina juisdiction
over such pettions. See 8 C.F.R § 1216.4(d)(2). Thus, we age tha the I  igaton Judge,
rather thn seting a deadline fr a ne pettion to be fled, should have allowed fr the
sbmission of new evidence in support of the petition ad considered the evidence that was
sbmited aready in conjunction with the "Motion to Reopen'' fled in July 2013.2 See, e.g.,
Mater of He"era d/ Odn, 25 I&N Dec. 589 (I 2011) (providing that, in reviewing the
USCIS decision regading a 216 petition to waive the joint fling requirement, a Immigation
Judge should allow the aien to introduce aditiona evidence in suppor of the petion).
1 Notice of the denal was mailed to the respondent on Ja 7, 2010 (xh. 3).
2 We also point out tere is some indication by bot te respondent ad his wife that he timely
requesed repening of the Jaua 7, 2010, aandonment deerination (Moton, tas F & G).
Aother option on remand, teefre, is to conside whether administaive closre or
continuace of this matte is waranted to alow fr adjudication of that repeng reuest. See
generall Mater of Avetisa, 25 I&N Dec. 688 (I 2012); Mater of Hahi, 24 l&N
Dec. 785 (I 2009).
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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)
AOS9 435 050
ln view of this deterination, we conclude that a abandonent fnding was not apprprate
in this case, een though the respondent indicated a intent to fle a joint pettion but did not
meet te deadline fr fling a petition with te Immigation Cou. 3 Rther, the joint petion in
the reord should have been reviewed aer opportnity was provided to the respondent to submit
additional evidence in suppor of that petion.
Base on the fregoing, we will sustain the appeal ad remand fr fher consideation of
the I-751 joint petion, ad we need not reach the question of whether good case was show fr
a contnuace. The fllowing orde is entered.
ORER: The appea is sustaned and the record is remanded to the Immigation Cour fr
fhe proceedins consistent wth this deision, and fr te enry of a new deision.
FOR T BOA
3 We also point out ta a abandonment fnding regading voluntary deae, based on the
failure to fle an applicaton fr anothe fr of relief would not ordinily be approprate
without poviding te respondent an opportnity fr a voluntay depare heaing, since thee is
no sepaate application fr voluntay depare.
2
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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)
´¾
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTON REVIEW
U.S. IMMIGRATION COURT
DALLAS, TEXAS
I TH MATTER OF:
BRETT RCHARD GODKE
[X] RESPONDENT [ ] APPLICANT
CASE NO. A 59 435 050
ORDER OF THE COURT
I [ ] DEPORTATION [ ] EXCLUSION [X] REMOVAL PROCEEDINGS
ON BEHALF OF THE RESPONDENT:
BRETT RICHARD GODKE
5409 NAAMAN FOREST BLVD., APT. 704
GARLAND, TEXAS 75044
ON BEHALF OF THE DHS:
PAUL B. HUKER III, ESQ.
CHIEF COUNSEL
125 E. JOHN CARPENTER FREWAY
SUITE 500
IRVING, TEXAS 75062
ORDER OF THE COURT
A review of the record of proceedings indicates that respondent filed to fle his I-751
petition and the fling fe receipts on or befre August 3, 2012. On April 5, 2012, te Cout
ordered respondent to submit his I-751 petition and the fling fee receipt on or befre August 3,
2012. The Cou also advised the respondent and his pror counsel of te consequences if he (the
respondent) failed to timely fle his I-751 petition and the fling fee receipts with te Cour. See
8 C.F.R. § 1003.3 l(c). Pursuat to 8 C.F.R. § 1003.3 l(c), the Cour fnds tat respondent has
waived his right to fle the 1-751 petition. Te Court also fnds that te respondent has
abadoned ay relief fom removal, including voluty depaure, since he failed to timely
submit his I-751 petition and the fling fe receipt.
Accordingly, the fllowing order shall be entered:
ORDER
IT IS HERBY ORERD that respondent's I-751 petition is hereby
PRTERITTED and DENIED.
IT IS FURTHERED ORDERED that respondent shall be removed fom the United
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Sttes to India on the charge contained in the Notice to Appear.
Dated this 13th Day of Augst 2012
cc: District Counsel
Counsel fr Respondent/ Applicant
Respondent/ Applicant
Mailed out: '- ;0-1;
Deitch H. Sims
U.S. Immigration Judge
Dallas, Texas
By:   J� n
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