You are on page 1of 10

U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


qtfice of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - BOS

Joyce & Associates


205 Portland Street, 3rd Floor
Boston, MA 02114

P.O. Box 8728


Boston, MA 02114

Name: LUWAGA, MUHAMAD YUSUF

A 097-750-414

Date of this notice: 12/12/2014

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

DOWtL t!a.AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Wendtland, Linda S.
Cole, Patricia A.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Miller, Robin N., Esq.

Decision of the Board of Immigration Appeals

U.S. Department of Justice


Executive-Office for Immigration Review

20530

Falls S:hurch, Virginia

File:

Date:

A097 750 414 - Boston, MA

DEC 12 2014

In re: MUHAMAD YUSUF LUWAGA

APPEAL
ON BEHALF OF RESPONDENT:

Robin N. Miller, Esquire

CHARGE:
Notice:

Sec.

APPLICATION:

237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

Adjustment of status; waiver of inadmissibility

The respondent appeals the Immigration Judge's February 20, 2013, decision denying his
application for a waiver of inadmissibility in conjunction with adjustment of status under
sections 2 l 2(i) and 245 of the Immigration and Nationality Act, 8 U.S.C. l l 82(i), 1255.

We

have not received a response from the Department of Homeland Security ("DHS"). The appeal
will be sustained and the record will be remanded for further proceedings.
The respondent challenges the Immigration Judge's ruling that he is inadmissible under

section 212(a)(6)(C)(i) of the Act. 8 U.S.C. 1l82(a)(6)(C)(i). 2

It is conceded that at the

respondent's initial merits hearing on October 25, 2007, the respondent testified falsely that the
This matter was previously before us and was remanded by order dated August 18, 2009, for
additional fact finding and further consideration of the application for relief. The Immigration
Judge's decision of February 20, 2013, will be referred to as ''l.J.2"; the earlier decision of
October 25, 2007, will be referred to as "l.J. l ". The Immigration Judge initially denied the
respondent's application for adjustment of status on October 25, 2007, finding the respondent
and his wife had not testified credibly and that they were engaged in a fraudulent marriage
(l.J.1 at 2). The case was remanded to the Immigration Judge upon a finding that the respondent
had established prejudice due to ineffective assistance of his prior attorney. Upon remand, the
parties were given the opportunity to supplement the record regarding the application for relief.
2

Section 212(a)(6)(C)(i) states:


Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this Act is inadmissible.

Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A097 750 414

sigaature on the application for adjustment of status, Form 1-485, was his (I.J.2 at 2; Tr. at 30).
The Immigration Judge found that this false statement under oath rendered the respondent
inadmissible and that the false statement was "material" to his eligibility for adjustment of status,
reasoning that there was no application before the Court in the absence of a properly sworn
Form 1-485 (l.J.2 at 2-3; Tr. at 111). The respondent filed a new application for adjustment of
status at the remanded hearing. Additional evidence was submitted and further testimony of both

The test for materiality of a misrepresentation is generally whether the respondent


potentially would be inadmissible or ineligible for relief under the true facts, or whether the
misrepresentation would tend to cut off a line of inquiry relevant to the respondent's eligibility
for admission or relief.

See Matter of S- and B-C-,

9 l&N Dec. 436, 447 (A.G. 1961).

The

Supreme Court's iteration of the materiality of a false representation in denaturalization

proceedings is instructive in assessing a similar provision. In Kungys v. U.S., 485 U.S. 759
(1988), the Immigration and Naturalization Service sought to have the respondent's citizenship
revoked based upon false statements made as to his date and place of birth. The Court ruled that
a false representation is material when it would lead to a "natural tendency to end a possible line
of questioning or otherwise influence a decision on his application."
772.

See also Matter of P-S-H-,

Kungys v. U.S., supra, at


Matter of M-L-M-A-,

26 I&N Dec. 329, 336-38 (BIA 2014);

26 I&N Dec. 360 (BIA 2014).


It is obvious that if the respondent had truthfully told the Immigration Judge that the
signature on the application was not his, further inquiry would have been made at the first
hearing. Nonetheless, there is no finding by the Immigration Judge that the information in the
original Form I-485 was false or misleading. Nor is the identity of the signer of the original
Form I-485 relevant to the respondent's ultimate admissibility or eligibility for relief, particularly
in the context of a substantiated claim of ineffective assistance of counsel. Therefore, we do not
sustain the Immigration Judge's finding that the respondent was inadmissible under section
212(a)(6)(C)(i) of the Act. Thus, we sustain the appeal and conclude that the respondent did not
need a waiver under section 2 l 2(i) of the Act in order to be eligible for adjustment. In light of
our decision in this regard the issue of whether a continuance should have been granted is
rendered moot.
The Immigration Judge's decision did not address the respondent's eligibility for adjustment
of status, in the event the waiver was found not to be necessary. The Immigration Judge did not
make a credibility finding or a decision on whether the respondent warrants the favorable
exercise of discretion.

See section 245(a) of the

Act. Therefore, we will remand the record for

further factual findings and a new decision.


Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion.
ORDER:

The appeal is sustained.

Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

the respondent and his wife was taken.

,.

t:

_1

"(

A097 750 414

FURTHER ORDER:

The record is remanded to the lmmigration Court.

Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Board Member Roger A. Pauley respectfully dissents without opinion.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE O FF ICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS

In the Matter of

MUHAMAD YUSUF LUWAGA


RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(1 )(B) of the Immigration and Nationality Act.

APPLICATION:

Adjustment of status.

ON BEHALF OF RESPONDENT: ROBIN ANN M ILLER


ON BEHALF OF DHS: MARK SAUTER

ORAL DECISION O F THE IMMIGRATION JUDGE


The Board of Immigration Appeals remanded the case to this Court on
August 18, 2009. See Exhibit R1. In that remand the Board noted that the respondent
had appealed from a decision of this Court which denied his application

for adjustment

of status unde Section 245 of the Immigration and Nationality Act. Ultimately, being the
Board's decision the Board determined that the respondent satisfied the Lozado
requirements and remanded this case to the Court so that the parties could be afforded
an opportunity to supplement the record with evidence pertaining to the respondent,s
relief application, including testimony and documentary material.

MG&m.

Immigrant & Refugee Appellate Center | www.irac.net

February 20, 2013

File: A097-750-414

During the hearings that followed before this Court, the Court did allow the
respondent to present additional evidenc
_ e and testimony. At a hearing before this Court
on December 22, 201 1 the Court considered the respondent's arguments that he should

make misrepresentation or at the very least that the respondent's misrepresentation


was not material and did not render him inadmissible under INA Section 21 2(a)(6)(C)(i).
The statement at issue regarded the respondent's October 25, 2007
hearing. Under oath the respondent testified that the signature on his first 1-485
application was his own. This Court specifically directed the respondent to that
signature, noted that there was white out on the page and the respondent testified
under oath that that signature was his. The respondent has made arguments to the
Court that this misrepresentation was not material since it, in the respondent's view, had
no bearing on his eligibility for his relief. This Court disagrees. The application for
adjustment of status contains a jurat section where the respondent is required to swear
that the contents of the adjustment application are true and sign that application. The
respondent testified under oath to this Court that the signature on his first 1-485
application was his, when in fact it was not. This Court finds the respondent's
arguments that that misrepresentation was not material to be wholly unavailing.
Perhaps the most significant portion of that application is the respondent's signature on
the jurat section. Otherwise, that application has not been sworn to and this Court finds
that that application would not be properly submitted. Therefore, the Court finds the
respondent's arguments that that misrepresentation under oath is not material is
unavailing.
The Court recognizes the respondent's arguments that he felt that he
would be calling into question the integrity of his former counsel if he testified that that

A097-750-414

February 20,

2013

Immigrant & Refugee Appellate Center | www.irac.net

not be required to seek a waiver under Section 21 2(i) because the respondent did not

was not his signature. Moreover, the respondent was under oath. The respondent was
directly questioned by this Court about that signature and again this Court finds the

finding that the respondent has met his Lozada requirements. However, this Court does
not find that the Board's decision ultimately affects this Court's ruling regarding the
respondent's testimony under oath before this Court regarding this Court's direct
questioning of the respondent as to whether a signature on his 485 was his or not.
Therefore, this Court required the respondent to prosecute a 1-601 waiver,
that is a 212 {i } waiver before this Court. The respondent indicated that although on
December 22, 2011 he had some of his case in chief ready for that waiver hearing, he
did not have all of his case and chief ready. The Court set the case down for its next
available date which was today's date, February 20, 2013.
However, the respondent, instead of being prepared to go forward with his
waiver application today, seeks a continuance arguing that he and his United States
citizen wife have "temporarily fallen out of communication with each other, following a
disagreement at the end of December of 2012". The respondent seeks a continuance
of the hearing today to allow him time to "reconcile with his wife". The Department of
Homeland Security has filed a written opposition to the respondent's request for a
continuance. The respondent's request for a continuance was filed with this Court on
February 12, 2013. And

OHS' response was filed on February 15, 2013. The Court has

and will deny the respondent's request for a continuance.


The respondent's United States citizen wife was not present at the hearing
on December 22, 2011. The respondent's United States citizen wife is not present
today. Although the Court understands the respondent's arguments to the Court, this
case has been pending for now over a year for this waiver hearing. The respondent has

A097-750-414

February 20,

2013

Immigrant & Refugee Appellate Center | www.irac.net

respondent's arguments in that regard fII short. The Court understands the Board's

been aware since December 22, 2011 that today was the day for his hearing on his
212(i) waiver. The respondent, nonetheless, presents himself at the hearing today

demonstrate extreme hardship to his United States citizen wife. She has not appeared
for the hearing today and this Court ultimately does not find that the respondent has
presented good cause for continuing today's hearing. Because the respondent has not
presented his United States citizen wife today he cannot demonstrate eligibility for the
Section 212(i) waiver and, therefore, this Court finds that the respondent is not eligible
to adjust his status. Although the respondent in previous proceedings has sought
voluntary departure, respondent through counsel today indicated that the respondent no
longer seeks voluntary departure. Therefore, because the respondent cannot
demonstrate eligibility for a Section 212(i) waiver, as his wife is not present to testify
and, therefore, this Court does not give any significant weight to her declarations in the
record. This Court finds that the respondent is ineligible to adjust his status under
Section 245 of the Act and does deny that application.
ORDERS
IT IS HEREBY ORDERED that the respondent's application for
adjustment of status under Section 245 of the Immigration and Nationality Act be and is
hereby denied;
IT IS FURTHER ORDERED that the respondent's application for a Section
212(i) waiver be and is hereby denied;

A097-750-414

February 20,

2013

Immigrant & Refugee Appellate Center | www.irac.net

without the one person necessary to prosecute his waiver that is the respondent must

,,,,_.'

IT IS FURTHER ORDERED that the respondent be


removed from the United States to Uganda based upon the charge contained in the

Immigrant & Refugee Appellate Center | www.irac.net

Notice to Appear at Exhibit 1.

Please see the next page for electronic


signature
MATTHEW J. D'ANGELO
Immigration Judge

A097-750-414

February 20,

2013

/Isl/
Immigration Judge MATTHEW J.
dangelorn on June

5,

2013 at

D'ANGELO
8:47

PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A097-750-414

February 20,

2013