U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5 I 07 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Tsai, Winston W., Esq. 6202 Winston Drive Bethesda, MD 20817

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

Immigrant & Refugee Appellate Center | www.irac.net

Name: MORGAN, SO ANN TANEISHA

A 099-166-966

Date of this notice: 4/3/2014

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

DcnrtL caJVL)
Donna Carr Chief Clerk

Enclosure Panel Members: Greer, Anne J.

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: So Ann Taneisha Morgan, A099 166 966 (BIA Apr. 3, 2014)

U.S. Department of Justice
·

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A099 166 966 - Baltimore, MD In re: SO ANN TANEISHA MORGAN IN REMOVAL PROCEEDINGS

Date:

APR

-

3 2014

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(l)(A), I&N Act [8 U.S.C. § 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(6)(C)(i) of the Act (found) 237(a)(l)(A), I&N Act [8 U.S.C. § 1227(a){l)(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(7)(B)(i)(II) of the Act (conceded) 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] In the United States in violation of law (found) Winston W. Tsai, Esquire

Sec.

Sec.

APPLICATION: Adjustment of status; voluntary departure

The respondent, a native and citizen of Jamaica, appeals from the Immigration Judge's December 19, 2012, decision sustaining the charges of removability against her and denying her applications for adjustment of status pursuant to section 245(i) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1255(i), and voluntary departure pursuant to section 240B(b) of the Act, 8 U.S.C. §1229c(b). We will remand the record to the Immigration Court. We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof and issues of discretion or judgment. 8 C.F .R. § 1003.1 (d)(3)(ii). The respondent filed her application after May 11, 2005; therefore, the provisions of the REAL ID Act apply (Resp't October 24, 2011, Documentary Submission at Tab B). Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006). On appeal, the respondent argues that the Immigration Judge erred in holding that the Department of Homeland Security (OHS) satisfied its burden of proving by clear and convincing evidence that she is removable under section 237(a){l)(A) of the Act, 8 U.S.C. § 1227(a)(l)(A), as an alien inadmissible at the time of entry due to fraud or willful misrepresentation of a material fact (I.J. at 6; Resp't Br. at 2). We discern no clear error in the Immigration Judge's findings that the respondent wrote and signed a statement, under oath before an officer at United States Citizenship and Immigration Services, stating that she entered the United States using the passport of and individual named Janice Lemonius. We likewise discern no clear error in the
Cite as: So Ann Taneisha Morgan, A099 166 966 (BIA Apr. 3, 2014)

A099 166 966

Immigration Judge's finding that the respondent attached an airline ticket to the adjustment application purchased under the same name (I.J. at 5-6; DHS Exh. 1, Tabs B-C). See Anderson v. City ofBessemer City, North Carolina, 470 U.S. 564, 573-74 (1985) (where there are two permissible views of the evidence, the fact finder's choice between them is not clear error); Matter ofR-S-H-, 23 l&N Dec. 629, 637 (BIA 2003) (stating that a factual finding is only clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))). The respondent attempted to rebut the contents of her sworn statement through her own testimony, claiming that her statement was coerced (I.J. at 6; Tr. at 16-22, 26-29). However, the Immigration Judge rejected this explanation (1.J. at 5-6).
An Immigration Judge must give specific, cogent reasons for an adverse credibility determination. Hui Pan v. Holder, 737 F.3d 921, 928 (4th Cir. 2013); Dankan v. Gonzales, 495 F.3d 113, 120 (4th Cir. 2007) (noting that inconsistent statements and contradictory evidence qualify as cogent reasons that could support an adverse credibility finding); accord section 208(b)(l)(B)(iii) of the Act, 8 U.S.C. § l158(b)(l)(B)(iii) (allowing the Immigration Judge to rely on factors such as the plausibility of the applicant's account, the consistency between the applicant's written and oral statements, the internal consistency within such statements, and the consistency of such statements with other evidence of record in making a credibility determination). The Immigration Judge is not required to accept the respondent's testimony when inconsistencies arise, even if the respondent provides a plausible explanation for the inconsistencies. See Dankan v. Gonzales, supra, at 122 (emphasizing that discrepancies in the applicant's testimony and corroborative documents may support an adverse credibility finding even where the applicant offers a plausible explanation for the inconsistencies).

Immigrant & Refugee Appellate Center | www.irac.net

The Immigration Judge gave specific, cogent reasons for rejecting the respondent's claim of coercion where it was not corroborated and was otherwise contradicted by her sworn statement (I.J. at 5-6). Moreover, the respondent's claim that she did not enter the United States with a fraudulent passport is undermined both by the sworn statement and the respondent's own submission of an airline ticket bearing the same name as the passport that she allegedly used to enter this country (I.J. at 6; DHS Exh. I, Tab C). Because the respondent was inadmissible when she entered the United States in 1998, she is statutorily ineligible to adjust her status under section 245(i) of the Act unless she can establish her eligibility for a waiver of inadmissibility under section 212(i) of the Act. See section 24S(i)(2) of the Act, 8 U.S.C. § 1255(i)(2) (requiring that the alien be admissible to the United States for permanent residence); section 212(i) of the Act, 8 U.S.C. § 1l82(i) (authorizing a waiver of inadmissibility for fraud or willful misrepresentation only when the refusal to admit the alien would result in extreme hardship to a qualifying relative, or in the case of a self­ petitioning battered spouse, the alien herself). Because the respondent concedes that she has no qualifying relative for a waiver, she is ineligible to adjust her status. The respondent also appeals from the Immigration Judge's decision to deny her voluntary departure. An Immigration Judge may grant voluntary departure where: (1) an alien-has been 2
Cite as: So Ann Taneisha Morgan, A099 166 966 (BIA Apr. 3, 2014)
_ :

.&

a

-=

A099 166 966

physically present in the United States for at least one year preceding the service of the notice to appear; (2) the alien is, and has been, a person of good moral character for at least five years; (3) the alien is not deportable under sections 237(a)(2)(A)(iii) or 237(a)(4) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(4); and (4) the alien has the means to depart the United States. Section 240B(b)( 1) of the Act. The Immigration Judge did not make factual findings concerning these statutory requirements and did not state any reasons for his decision to deny the respondent's request for voluntary departure. Accordingly, we must remand the record. See 8 C.F .R. § 1003.l (d)(3)(iv); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002); Matter of A-P-, 22 l&N Dec. 468 (BIA 1999). The following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

� �B6M&J �·�
FOR THE

3
Cite as: So Ann Taneisha Morgan, A099 166 966 (BIA Apr. 3, 2014)

� �·

� f4.. .

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

IN THE MATTER OF

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

SO ANN TANEISHA MORGAN

Case A# 099-166-966

RESPONDENT

CHARGE:

INA§ 237(a)(l)(A) intended nonimmigrant without proper visa [INA§ 212 (a)(7)(B); INA§ 237(a)(l)(A), intended immigrant inadmissible for fraud & willful misrepresentation of material fact (INA§ 212 (a)(6)(C)(i)]]; INA§ 237(a)(l)(B), nonimmigrant overstay.

APPLICATIONS:

INA§ 245(i), Adjustment of Status; Alternatively, INA§ 240(8) Voluntary Departure

APPEARANCES ON BEHALF OF RESPONDENT:
Winston Tsai, Esq. 6202 Winston Drive Bethesda,

ON BEHALF OF THE DHS:
Jennifer Piateski, Esq. Assistant Chief Counsel 31 Hopkins Plaza, 16th Floor Baltimore, Maryland 21201

MD 2081 7

MEMORANDUM OF DECISION AND ORDER
The Respondent previously appeared before the United States Immigration Court, Baltimore, Maryland in contested proceedings and later to present her application(s) for relief

Immigrant & Refugee Appellate Center | www.irac.net

from removal. The Court then reserved its decision and order to further review the record. Having done so, the Court issues the following findings and orders.

I.

Statement of the Case
The Respondent is a native and citizen of Jamaica. She entered the United States on a B-

2 visitor for pleasure visa on or about August 13, 1998 with authorization to remain until February 12, 1999. The Respondent was placed in removal proceedings after she attempted to adjust her status to that of a lawful permanent resident under an approved I-140 employment based visa petition. In addition to the change of nonimmigrant overstay,

INA§ 237(a)(l)(B), the INA§

Respondent was also charged as an intended nonimmigrant without a proper visa,

237(a)(l)(A) [INA§ 212(a)(7)(B)(i)(II)), and for being inadmissible at the time she requested
adjustment of status because of fraud and misrepresentation of a material fact,

INA§

237(a)(l)(A) [INA§ 212(a)(6)(C)(i)). In pleading proceedings before the Court held on January
27, 2010, the Respondent conceded that she was subject to removal as a nonimmigrant overstay, but denied both charges of inadmissibility. She asked that the Department of Homeland Security ("DHS") be put to its proofs and also requested relief in the forms of adjustment of status and voluntary departure. At a contested hearing, the DHS presented the following evidence.

Government Group Exhibit #1
o o

SubExhibit A- Application for Adjustment of Status, I-485 filed by Respondent SubExhibit B- Sworn statement of Respondent given to the U.S. Citizenship and Immigration Service ('"USCIS") 2

o o

SubExhibit C- Plane ticket Respondent used to come to the United States SubExhibit D- USCIS denial of Respondent's adjustment of status I-485 application

In addition to the documentary evidence offered by DHS, they also called the Respondent

Immigrant & Refugee Appellate Center | www.irac.net

as an adverse witness. The Respondent testified that she was given a plane ticket in the name of James Lemonius, but did not use the ticket to enter the United States. 1 She also testified that she

does not know any Janice Lemonius. Rather, she claimed she came to the United States by boat, a six hour journey arriving at Miami, Florida in 1998. In response to questioning by the Court, the Respondent testified she left Jamaica for a better lif e and was brought to the United by a Jamaican man. They met no Coast Guard or government officials. They came by night. The Respondent worked for Phil Jackson doing chores and caring for him. A one-year marriage to a United States citizen ended in divorce. She represented that the marriage was not for a "green card." According to the Respondent, the CIS officer told her what to write in her statement. She claimed the officer interviewed her over a period of eight hours and yelled at her. Based on the evidence presented and the Respondent's testimony, the DHS contends that Respondent is removable on the fraud charge and is not eligible for INA § 245(ii) adjustment of status. The Respondent offered the proffered testimony of her sponsor, the petitioner Hope Eastman. Under cross-examination, witness Eastman testified that the Respondent cared for her husband until he passed and is currently providing for her brother who is indigent, has cancer and advanced disabilities. She testified that the Respondent is a loyal, loving employee. Additionally, the Respondent presented the following evidence.

2

Respondent Group Exhibit #1
o o

A. 1-140 Approval Notice B. I-485 Application for Permanent Resident

2

Group Exhibit # 1, SubExhibit C, but did not use it.

1

Respondent conceded that she attached a copy of the ticket to her adjustment of status application, Government Melvin Williams was incarcerated for lewd conduct.

3

o o o o o o o o o

C. 1-485 Supplement A and Fee Receipt D. G-325A Biographic Information E. Employment letter F. Birth Certificate G. Divorce Decree

Immigrant & Refugee Appellate Center | www.irac.net

H. Medical Examination I. 1-140 Visa Petition J- Labor Certification K-M Tax Returns

Respondent Group Exhibit #2
o

A. Employment Letter

II.

Statement of the Law and Findings of the Court

A. Burdens of Proof
The DHS must establish by clear and convincing evidence that Respondent is removable as charged. 3 This can be established through the admissions of the Respondent or by the presentation of independent evidence. The Respondent bears the burden of proof and persuasion for all applications of relief. The statute sets forth the requirements.

B. Relief from Removal
1. Adjustment of Status

INA § 245(i)4

Persons who have entered the United States without inspection, who had a visa filed on their behalf on/or before April 30, 2001 can pay a $1,000 penalty fee and apply for adjustment of status to lawful permanent residence.

INA§ 245(i)(l)(C). Additionally, there

3

4

[INA § 212(a)(7)(B)(i)(II)].

Respondent conceded removability under

INA §237(a)(l)(A) as an intended nonimmigrant without a proper visa
4

Sunset on April 30, 2001, no longer the law.

must be

an

approved visa petition and the visa must be available. Finally, the Court must

balance discretionary factors. 2. Fraud Waiver

INA § 212(i)

An alien who is inadmissible for fraud or willful misrepresentation of material fact may receive a waiver of inadmissibility (fraud/misrepresentatio�) if it is established that the refusal of

Immigrant & Refugee Appellate Center | www.irac.net

admission "would result in extreme hardships to the citizen or lawful resident spouse or parent of the alien .. . " The application is discretionary.

III.
I.

Position of the Parties
The DHS

The DHS argues that based on the evidence presented along with the Respondent's testimony, she is removable as a nonimmigrant overstay

INA§ 237(a)(l)(B) and also as an who INA§ 237(a)(l)(A)

is inadmissible for fraud and willful misrepresentation of a material fact.

[INA§ 212(a)(6)(C)(i)]. The OHS further argues that Respondent is not eligible for a fraud
waiver under 2.

INA§ 212(i) because she had no qualifying relatives to waive the fraud.

The Respondent The Respondent continues to argue that she did not use someone else's passport to enter

the United States. Rather, she contends she entered illegally on a boat. She argues she is

INA§

245(i) adjustable based on an approved employment based visa. Because of this position, she
states that no

INA§ 212(i) fraud waiver is applicable. Findings of the Court

The Respondent is not credible. The OHS evidence clearly shows that she admitted under oath to a DHS officer that she entered the United States in August of 1998 by using the passport of Janice Lemonius. The statement was given in May 2005 when the Respondent sought adjustment of status to resident. Although brief, the statement is detailed.

5

Before the Court the Respondent asks that I believe she was yelled at and interrogated for eight hours and finally told what to write on her statement. This is simply non believable that a DHS officer would question her for eight hours and then have her make up a story of a journey to the United States by boat and write such a statement. Rather, the statement was written by the

Immigrant & Refugee Appellate Center | www.irac.net

Respondent and signed by her under oath.

See Government Group Exhibit # 1, SubExhibit B.

Further, the Respondent attached a copy of the airline ticket to her application for adjustment of status. To believe that she never saw this document before and that it was used by the DHS officer in order to deny her application belies any semblance of truth. Nor is it particularly credible to now accept as truth that the Respondent was able to arrive in Miami, Florida by boat undetected. The outstanding charges of removability are sustained by clear and convincing evidence. The Respondent engaged in misrepresentation of material fact(s) in order to gain entry into the United States by the use of false documents. She is removable on all charges. In addition, the Respondent cannot adjust her status· under needs a fraud waiver.

INA§ 245(i) because she

INA§ 212(i) requires hardship to a qualifying relative. The Respondent

has none. Nor has the Respondent been qualified for voluntary departure. All applications for relief from removal are denied and the Respondent shall be removed as charged to Jamaica. Done and Ordered this

I ct A

day

�1--2012.
rt, Jr. ·Uni ed States Immi ration Judge Baltimore, Maryland

6

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

IN THE MATTER OF

IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

SO ANN TANEISHA MORGAN

Case A# 099-166-966

RESPONDENT

CHARGE:

INA§ 237(a)(l)(A) intended nonimmigrant without proper visa [INA § 212 (a)(7)(B); INA§ 237(a)(l)(A), intended immigrant inadmissible for fraud & willful misrepresentation of material fact [INA§ 212 (a)(6)(C)(i)]]; INA§ 237(a)(l)(B), nonimmigrant overstay.

APPLICATIONS:

INA§ 245(i), Adjustment of Status; Alternatively, INA§ 240(B) Voluntary Departure

APPEARANCES ON BEHALF OF RESPONDENT:
Winston Tsai, Esq. 6202 Winston Drive Bethesda, MD 20817

ON BEHALF OF THE DHS:
Jennifer Piateski, Esq. Assistant Chief Counsel 31 Hopkins Plaza, 16th Floor Baltimore, Maryland 2120 I

7

ORDER

It is this

I 'l12 �
yo

012, by the United States Immigration

Court, sitting at Baltimore, Maryland,

Immigrant & Refugee Appellate Center | www.irac.net

ORDERED: 1.
that the Respondent's adjustment of status application pursuant to

DENIED.

INA§ 245(i) is

2.

that the Respondent's voluntary departure application pursuant to is

INA§ 240(B)

DENIED; and

3.

that the Respondent be removed to Jamaica as charged.

����rEwrv_
Jo

Sign up to vote on this title
UsefulNot useful