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Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014)

Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's assertion that he was admitted to the United States pursuant to Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), by being waived through at a port of entry. The Board rejected the DHS’s argument that the respondent’s testimony alone was insufficient to satisfy his burden of proof, but stated that the immigration judge could require the submission of reasonably obtainable corroborating evidence on remand. The decision was written by Member Linda Wendtland and joined by Member Anne Greer and 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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's assertion that he was admitted to the United States pursuant to Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), by being waived through at a port of entry. The Board rejected the DHS’s argument that the respondent’s testimony alone was insufficient to satisfy his burden of proof, but stated that the immigration judge could require the submission of reasonably obtainable corroborating evidence on remand. The decision was written by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 09, 2014
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Canales, Cynthia, Esq.

Canales & Canales, P .C.
114 Mesa Park Dr., #200
El Paso, TX 79912
Name: FONSECA-HARO, RICARDO
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - ELP
1545 Hawkins Blvd.
El Paso, TX 79925
A 097-369-036
Date of this notice: 5/27/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Wendtland, Linda S.
Pauley, Roger
Sincerely,
Do  c t
Donna Car
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014)
. ·
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of te Board of Immigation Appeals
Falls Church, Virgiia 20530
File: A097 369 036 - El Pao, TX
In re: RICARDO FONSECA-HO
I REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RSPONDENT: Cynta Caales, Esquire
ON BEHALF OF DHS:
CHAGE:
Lorely Ramirez Mavetz
Assistt Chief Counsel
Date:
MAY 2 7 2014
Notice: Sec. 2
12(a)(6)(A)(i), I&N Act [8 U.S.C. §
11
82(a)(
6
)(A)(i)]
-
Present without being admitted or paoled (fund)
·
APPLICATION: Adjustent of stats
Te respondent, a native and citizen of Mexico, appeals fom the Imgation Judge's
November 30, 20
11
, decision, fnding h removable a charged ad sttutorily ineligible to
pursue adjustent of stats uder section 245(i) of the Immigration and Nationalit Act (Act),
8 U.S.C. § 1255(i). His appeal will be sued ad te record will be remaded fr fer
proceedings consistent wit ts decision.
We review fndings of fct, including credibilit fndings, fr clea eror. See 8 C.F.R.
§ 1003.l(d)(3)(i); see also Mater of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Mater of S-H-,
23 l&N Dec. 462 (IA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).
The respondent was chaged with being present without fs being admitted or paoled, but
he mantned befre the Imigation Judge, ad he reiterates on appeal, that he was admitted to
the United States when he was waved trough at a por of ent (I.J. at 1-2; Tr. at 2-3, 36-37;
Resp. Brief at 1-2). In sustaining te charge, the Imgation Judge concluded a a mater oflaw
tat a individua waved tough at a por of ent has not been admited. He did not allow te
respondent to testif to provide fer details regarding te circumstaces of his entry (I.J. at 2;
Tr. at 37).
Upon de novo review, we disagree with the Imigation Judge's legal conclusion tat a
individu waved tough at a por of enty has not been admtted (I.J. at 2). Instead, as we held
in Matter of Quilantan, 25 l&N Dec. 285 (BIA 2010), where a alien is perited to enter te
United States afer he has presented himself fr inspection ad made no false cla to
United States citizenship, the aien has been admited because the inspection satisfes the
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Cite as: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014)
A097 369 036
requirements of procedural regulaty. See id. at 290-93; see also Mater of Areguillin, 17 I&N
Dec. 308 (BIA 1980).
In the couse of remaded proceedigs, te respondent wll be aforded a opportity
to testif ad submit any other pertinent evidence regading te fcts ad circumstaces
sur ounding his enty. However, he maintns te buden of proof in demonstrating tat he was
waved troug at a port of enty, ad tus admited, in overcoming te chage of inadmissibility
curenty contained on the Notice to Appea. See secton 240(c)(2)(B) of te Act, 8 U.S.C.
§ 1229a(c)(2)(B); 8 C.F.R. § 1240.10. I ts regard, we ae unpersuaded by te Depament of
Homelad Security's (DHS's) appellate asertion that remad of the record is unecessay
because the respondent did not have ay coroborating evidence of his maner of entry at te
time of the prior heag ad canot ca y his burden of proof with his (not yet provided)
testimony aone (DHS Brief at 3). Instead, i Ma
t
ter of Quilantan, supra, the respondent
appaently did not present ay documentay evidence corroborating her claim of a wave-toug
admission, but she ca ied her burden of proof where te fcts surouding her enty were fund
to be udisputed. See id. at 293. Fuer, even in te presence of a fctua dispute, a
Immigation Judge has the authorit to deterine that credible ad persuaive testmony that
refrs to specifc fcts sufces to cary a respondent's buden of proof, athoug the Imgation
Judge neverheless may require the provision of reaonably obtanable corroboration where such
is fund appropriate uder the paicula circumstaces. Cf section 240( c )( 4 )(B) of te Act
(erng to requirements fr sustaining burden to establish eligibility fr relief fom removal).
Because removability is still at issue, we decline to reach the respondent's agument
regading his potentia eligibility fr adjustment of status or ay oter fr of relief fom
removal (l.J. at 2; Notice of Appeal; Resp. Brief at 2-3).
Accordingly, te fllowing orders will be entered.
ORER: Te respondent's appea is sustaned.
FURTHER ORDER: The record is remaded fr fer proceedings consistent wt this
order ad fr te enty of a new decision.
2
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Cite as: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014)
(
/
(
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
File A 97 369 036
In the Matter of
RICARDO FONSECA-HARO
Respondent
CHARGE:
APPLICATION:
APPEARANCES:
El Paso, Texas
Date: November 30, 2011
IN REMOVAL PROCEEDINGS
Section 212(a) (6) (A) (1) of the Immigration and
Nationality Act
None
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Cynthia Canales, Esquire Lorely Ramirez Mravetz, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE
The Respondent was placed in these removal proceedings
by the issuance of a Notice to Appear that was filed with the
Immigration Court. See Exhibit il. The Respondent is an adult
male, native and citizen of Mexico.
The Respondent admitted allegations one, two and three.
He denied allegation four and denied the charge. However, he
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,�· �
(
(
presented no evidence in regard to showing that he was admitted
into the United States. He said that he was "waved through."
That is not an admission.
The Respondent has indicated that he might be eligible
at some future date for relief. His I-140 was denied in April of
2005. There may be an additional I-140 pending. It is not clear
whether that is through perhaps the same employer as in the past.
His adjustment application was previously denied as well.
The Respondent has no applications pending before the
Imigration Court. Accordingly, the Court enters the following
order.
ORDER
IT IS HEREBY ORDERED that the Respondent is ordered
removed to the country of Mexico based on the charge in the Notice
to Appear. I will issue a written order off the record.
Imigration Judge
A 97 369 036 2 November 30, 2011
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(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
LARRY R. DEAN, in the matter of:
RICARDO FONSECA-HARO
A 97 369 036
El Paso, Texas
was held as herein appears, and that.this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
jmg/mab
Janine M. Giambalvo, Transcriber
YORK STENOGRPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
January 19, 2012
Completion Date
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