U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5/07 leesb11rg Pike, S11ile 2000 Falls Ch11rch, Virginia 220./l

Caruso, Aaron R., Esq. Abod & Caruso, LLC 3105 Mt Pleasant Street, NW Washington, DC 20010

OHS/ICE Office of Chief Counsel - BAL 31 Hopkins Plaza, Room 1600 Baltimore, MD 21201

Immigrant & Refugee Appellate Center | www.irac.net

Name: AMAYA-PORTILLO, JOSE

A 094-216-651

Date of this notice: 7/16/2013

Enclosed is a copy of the Board1s decision and order in the above-referenced case. Sincerely,

Don.nL ca.AA.)
Donna Carr Chief Clerk

Enclosure Panel Members: Grant, Edward R.

Lulseges Userteam: Docket

Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)

.

U.S. Department of Justice Executive Office for Immigration Review
Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A094 216 651 - Baltimore, MD

Date:

JUL 16 2013

In re: JOSE AMAYA-PORTILLO IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Aaron R. Caruso, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Temporary protected status

The respondent has appealed from the Immigration Judge's decision dated April 26, 2012. The Immigration Judge denied the respondent's application for temporary protected status (11 TPS11) under section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a, for failure to demonstrate that he has continuously resided in the United States since February 13, 2001, and that he has been continuously physically present in the United States since March 9, 2001. On appeal, the respondent argues that his credible testimony and that of his witness are sufficient to meet his burden of proof. The respondent's appeal will be dismissed. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de nova. 8 C.F.R. § 1003.1(d)(3)(ii). We agree with the Immigration Judge that the respondent has not met his burden of proof to demonstrate continuous residence in the United States since February 13, 200l, and that he has been continuously physically present in the United States since March 9, 2001, pursuant to sections 244(c)(l)(A){i) and (ii) of the Act, 8 U.S.C. §§ 1254a(c)(l)(A)(i) and (ii). At his hearing before the Immigration Judge, the respondent provided his own personal testimony and that of a witness regarding his residence and physical presence in the United States. However, the respondent did not submit any documentary evidence supporting the witness testimony. The regulation at 8 C.F.R. § 1244.9(b) provides that in order to meet his or her burden of proof "the applicant must provide supporting documentary evidence of eligibility apart from his or her own statements." Inasmuch as the respondent did not submit any documentary evidence to support the witness testimony, we agree with the Immigration Judge that the respondent did not meet his burden of proof to establish eligibility for TPS. See Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007). Effective January 20, 2009, an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal, and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted. 8 C.F.R. § 1240.26(c)(3). See Matter a/Gamero, 25 l&N Dec. 164 (BIA 2010). The Immigration Judge

Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)

A094 216 651

provided the respondent with the required advisals and granted the respondent a 60-day voluntary departure period, conditioned upon the posting of a $500.00 bond. The record before the Board, however, does not reflect that the respondent submitted timely proof of having paid that bond. Therefore, the voluntary departure period will not be reinstated, and the respondent will be removed from the United States pursuant to the Immigration Judge's alternate order. Accordingly, the following orders will be entered. ORDER: The appeal is dismissed.

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER:

The respondent is ordered removed from the United States

pursuant to the Immigration Judge's alternate order.

2

Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)

\

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFF ICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

Immigrant & Refugee Appellate Center | www.irac.net

File:

A094-216-651

April 26,

2012

In the Matter of

JOSE AMAYA-PORTILLO RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Immigration and Nationality Act Section 212 (a) (6) (A) (i) as one who is present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General.

APPLICATIONS:

De nova review of denial o f temporary protected status, Form I-821; voluntary departure.

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

JULIO HERNANDEZ

AMY POLLOCK

ORAL DEC ISION OF THE IMMIGRATION JUDGE The respondent has been placed in removal proceedings by the lodging of a Notice to Appear dated November 6, 2009. It

The Notice to Appear is a part of this record as Exhibit 1. indicates that the respondent is not a citizen or national of

the United States, [Exhibit l] .

but a native and citizen of El Salvador

The Notice to Appear indicates that the respondent

arrived in the United States at or near an unknown place at an

Immigrant & Refugee Appellate Center | www.irac.net

unknown date and that he was not then admitted or paroled after inspection by an Immigration Officer. Based thereon, the

Department of Homeland Security indicates the respondent is removable from the United States under Section 212 (a} (6} (A} (i} as one who is present in this country without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General [Exhibit 1] .

Respondent appeared previously in Immigration Court through counsel and admitted allegations 1, 2 and 4. allegation 3, August 22, charged. As to

indicates an arrival through Arizona on or about The respondent concedes removability as

1999.

Based on respondent's admissions to allegations

contained in the charging document and his concession of removability, the Court finds that the respondent's removability

has been established by evidence that is clear and convincing as would be required at INA Section 240{c). INS, 385 U.S. 276 (1966} See also Woodby v.

decided in the context of deportation

proceedings.

The Court next turns to the respondent's

application for relief in these proceedings. The respondent has submitted a petition for temporary protected status seeking de novo review by the Immigration Court pursuant to 8 C.F.R. Section 1244.11, his application for

A094-216-651

2

April 26, 2012

\

temporary protected status as a part of his record as Exhibit 2. He has also enclosed invoices which are part of this record as Exhibit 2B.

Immigrant & Refugee Appellate Center | www.irac.net

The respondent has testified in these proceedings that he is Jose Amaya-Portillo, that he is from El Salvador. He

stated on direct examination that he came to the United States on August 25, 1999. He states that he has not made any

departures from the United States since that date. On cross-examination, the respondent indicated that he

has paid rent since his arrival in the United States and that he has receipts, however, he concedes that he not submitted such He states that he has

receipts before the Immigration Court.

not received any letters from anyone in the course of his time here in the United States. Additionally, the respondent

testified that he has filed income taxes in the United States since as early as 2004, but concedes that he does not have such

forms or that he has never filed any income taxes before that date. In addition to the respondent's testimony is called on the testimony of one Maria Salmeron who has been granted t emporary protected status in the United States according to her testimony. 2000. 1999."
a

She states that she came to the United States in

She states that she knew respondent in El Salvador "since She states that they worked together in a restaurant for She states that as far as she knows the

while in Virginia.

A094-216-651

3

April 26,

2012

� �

respondent has not left the United States since his arrival. She indicated the respondent came to the United States in 1999 and that she knows that because they are from the same town in

Immigrant & Refugee Appellate Center | www.irac.net

El Salvador. The respondent indicates that he has sufficient funds to pay for his departure from the United States and that he has not been involved in any criminal conduct. The respondent

states that he has the appropriate travel document and that he is willing to comply with an order of voluntary departure if accorded. I have had an opportunity to observe the respondent's demeanor throughout these proceedings and to assess his testimony in the context of the documents that he offered in support of his claim. There is no outward signs of the The the

respondent making misrepresentations to the Court. respondent appears to have testified credibly,

however,

respondent has no documentary evidence to support his claim of an arrival in the United States since as early as 1999. The

Department of Homeland Security has offered the notice of intent to deny an application for temporary protected status, which is

a part of his record as Exhibit 3A and an outright denial of the respondent's request for temporary protected status, part of his record as Exhibit 3 and 3B. In the notice of intent to deny, which the Court is which is a

reviewing in these proceedings, the Department of Homeland

A094-216-651

4

April 26,

2012

\

Security indicated to the respondent that he

"failed to

establish that you have continuously resided in the United States since February 13, the Act. " 2001 pursuant to 244 (c) (1) (A) (ii) of

Immigrant & Refugee Appellate Center | www.irac.net

The notice from the Department o f Homeland Security

states as well that the respondent should submit evidence to show that he has resided in the United States as o f February 13, 2001. It is also pointed out to the respondent that "it is not

enough to show that you are simply present in the United States. You must show that you established a residence in the United States as of February 13, include, 2001. Acceptable evidence might

but is not limited to employment or school records, bank accounts or insurance documents."

rent or medical receipts, Additionally,

the notice of intent indicated to the respondent

that he " failed to establish that you have been continuously physically present in the United States since March 9, 2001 to

the date of filing o f your application pursuant to Section 244 (c) (1) (A) (i) of the Act." The Department of Homeland Security urged the respondent to both provide documents to show that you have been physically present in the United States from March 9, the date o f the filing. deny is dated April 28, [Exhibit 3A]. 2003. 2001 to

The notice of intent to 2003, the Department

On July 31,

o f Homeland Security sent the respondent a notice indicating that his application for temporary protected status was denied because the respondent was unable to overcome the grounds stated

A094-216-651

5

April 26,

2012

(

r-\

in the notice of intent to deny. In order to qualify for temporary protected status as a native and citizen of El Salvador, it is the respondent's

Immigrant & Refugee Appellate Center | www.irac.net

burden to demonstrate that he is a native and citizen of El Salvador and that he has continuously resided in the United States since February 13, 2001 up to the date of filing the It is also

application for temporary protected status benefits. the respondent's burden to establish that he has been

continuously physically present in the United States since March 9, 2001. 8 C.F.R. Section 1244.9 regarding evidence sufficient

to establish physical presence and residence and other eligibility for temporary protec� ed status makes it clear that as it relates to proof of residence (8 C.F.R. Section

1244.9 (a) (2)) such evidence may consist of documents such as employment records, such as paystubs or W-2 forms, state and local income tax

certifications of filing of federal,

returns or if the applicant has been self-employed, letters from banks and other firms with whom he or she has done business. The Code of Federal Regulations is very specific in terms of the information that should be contained in such documents. The litany of documents referenced at 8 C.F.R. Section 1244.9 (a) (2) includes such things as well as proof of the addresses at the time of employment, periods of layoffs, if any, the

alien's residences,

periods of employment,

and duties

with a particular company.

An applicant can offer rent

A094-216-651

6

April 26,

2012

(

r'-

receipts,

utility bills,

electric,

telephone,

or receipts or

letters from companies showing the dates during which the applicant received service. Such an applicant may also enclose

Immigrant & Refugee Appellate Center | www.irac.net

school records such as letters or report cards from the schools if the applicant attended school. There is also room to submit hospital or medical records showing medical treatment or hospitalization or attestations by churches or unions or other organizations o f the applicant's residency with specific requirements therein as well. It is made clear from 8 C.F.R. Section 1244.9 (a) (2) that

the litany re ferenced therein is not the limit to documentation that the respondent may be able to offer. It is reasonable that

i f an individual has been in the United States for the length of time that the respondent claims to have been here that the documents referenced at 8 C.F.R. Section 1244.9 (a) (2) available. should be

The respondent has not o f fered any such documents The Court notes as well that the respondent's The respondent does not me?tion his

before the Court.

testimony was quite sparse. places where he worked,

the length o f time working there,

salaries at those places and has not enclosed any receipts to that e ffect. The respondent has not made any re ference to any addresses where he may have lived in the United States and simply states that he has receipts from places that he rents, but he has not o f fered those receipts to the Court.

A094-216-651

7

April 26,

2012

The respondent has not shown even in his testimony any other activities showing the establishment of a residence as well. as continuous physical presence in the United States for

Immigrant & Refugee Appellate Center | www.irac.net

the period of time required for eligibility for temporary protected status. The Court has conducted a de novo review of the respondent's eligibility for temporary protected status pursuant to 8 C. F. R. Section 1244. 11. The Court finds on this record

that the reasons that the Vermont Service Center denied the respondent's application for temporary protected status are sufficient and valid and establish that the respondent has not met his burden of demonstrating eligibility for temporary protected status. He has

� urther

not overcome his inability to

establish that residence and continuous physical presence before the Court and therefore his application for temporary protected status will be denied. The respondent has testified that he has sufficient funds to pay for his departure from the United States, that he

has not been involved in any criminal conduct and that he can acquire the appropriate travel document. He has stated as well

that he is willing to comply with an order of voluntary departure. And based thereon the Court will find that the

respondent meets the threshold eligibility requirements for voluntary departure and will grant that limited form of relief through June 11, 2012 with an alternate order of removal from

A094-216-651

8

April 26,

2012

''·

the United States to El Salvador in the event that the respondent fails to comply. ORDER

Immigrant & Refugee Appellate Center | www.irac.net

IT IS ORDERED the respondent's application for temporary protected status .be and the same is hereby denied. IT IS FURTHER ORDERED the respondent's request for voluntary departure be granted through June 11, 2012 provided

the respondent places a voluntary departure bond in the amount o f $500 with the Department of Homeland Security by May 3, Failure to comply with the order of voluntary departure including the posting o f the bond in the amount o f $500 will result in an order o f voluntary departure� becom£ (? automatically an order o f removal from the United States to El S alvador. 2012.

A094-216-651

9

April 26, 2012

. '

CERTIFICATE PAGE

I hereby certi fy that the attached proceeding be fore JUDGE PHILLIP T. WILLIAMS, in the matter o f:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE AMAYA-PORTILLO

A094-216-651

BALTIMORE,

MARYLAND

is an accurate,

verbatim transcript of the recording as provided

by the Executive Of fice for Immigration Review and that this is the original transcript thereof for the file of the Executive O ffice for Immigration Review.

MICHAEL PERLMAN

(Transcriber) Inc.

DEPOS ITION SERVICES, JUNE 25, 2012

{Completion Date)

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