In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in finding the respondent abandoned his petition to lift the conditions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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in finding the respondent abandoned his petition to lift the conditions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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in finding the respondent abandoned his petition to lift the conditions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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
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Enclosure Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise Sincerely, Donna Carr Chief Clerk For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014) U.S. Deiarent of Jutice Exve Oc for Igon Rview Deson of te Bod of Im gon Ap % ' 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). I m m i g r a n t
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w w w . i r a c . n e t 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 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)
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 I m m i g r a n t
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w w w . i r a c . n e t 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 I m m i g r a n t