You are on page 1of 4

U.S.

Department of Justice

Executive Office for Immi gration Revi ew


Board of Immigration Appeals
Office of the Clerk
5107 J,cesburg Pike, Suite 2000
Falls Church. l'irgi11ia 20530

FEDERAL DET. CENTER-OAKDALE 2


P.O. Box 1128

9270 Siegen Lane, Suite 603


Baton Rouge, LA 70810

OAKDALE, LA 71463

Name: G

-G

, S

-730

Date of this notice: 1/2/2015

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Neal, David L
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: S-G-G-, AXXX XXX 730 (BIA Jan. 2, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Scott, Paul Hugh


The Scott Law Firm LLC

Decision of the Board of Immigration Appeals

U.S. Department of Justice


Executive Office for Immigration Review
Falls Church, Virginia 20530

Date:

730 - Oakdale, LA

File:
In re: S

-G

JAN

2 2015

ak.a

APPEAL

ON BEHALF OF RESPONDENT: Paul H. Scott, Esquire


ON BEHALF OF

DHS:

James F. Polivka
Assistant Chief Counsel

CHARGE:
Notice: Sec.

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled
212(a)(6)(C)(ii), I&N Act [8 U.S.C. 1182(a)(6)(C)(ii)] False claim to United States citizenship

APPLICATION: Cancellation of removal

The respondent appeals from the Immigration Judge's decision dated August 26, 2014, that
ordered the respondent removed from the United States. The Immigration Judge's decision,
which also incorporates her decision dated August 12, 2014, that denied the respondent's motion
to reconsider her July 11, 2014, rulillg finding the respondent had not established his
admissibility under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(6)(C)(ii), is affirmed pursuant to this Board's authority under 8 C.F.R. 1003.l(e)(S).
However, the decision of the Immigration Judge pretermitting the respondent's application for
cancellation of removal will be reversed.
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 of Immigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii). There is no dispute that
the respondent is an alien present in the United States without being admitted or paroled under
section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(6)(A)(i).
Pursuant to section 240(c)(2) of the Act, 8 U.S.C. 1229a(c)(2), the respondent bears the burden
of establishing clearly and beyond doubt that he is entitled to be admitted and is not inadmissible
under section 212 of the Act.
A finding of inadmissibility under section 212(a)(6)(C)(ii) of the Act, 8 U.S.C.
1182(a)(6)(C)(ii), does not require a criminal conviction. The record contains evidence that a
Cite as: S-G-G-, AXXX XXX 730 (BIA Jan. 2, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

730
grand jury indicted the respondent tor willfully and knowingly making false statements in an
application for a passport with intent to induce and secure the issuance of the passport under the
authority of the United States. The grand jury found that the respondent falsely claimed to be a
citizen of the United States on a passport application.

Regarding the respondent's application for cancellation of removal under section 240A(b)(1)
of the Act, 8 U.S.C. 1229b(b)(l), the respondent bears the burden of proving by a
preponderance of the evidence that he is statutorily eligible for such relief and that he is
deserving of such relief in the exercise of discretion. Thus, under section 240A(b)(1)(B) of the
Act, the respondent must establish by a preponderance of the evidence that he has been a person
of good moral character for a period of 10 years immediately preceding his application for
cancellation of removal. Under section 101(t)(3) of the Act, 8 U.S.C. 1101(f)(3), an alien,
whether inadmissible or not, who has committed an offense under section 212(a)(2)(A)(i)(I) of
the Act, 8 U.S.C. 1182(a)(2)(A)(i)(I), during the relevant time period, for which he was
convicted, is precluded from establishing good moral charcter during the period.
The respondent was convicted under 42 U.S.C. 408(a)(8), for the offense of Disclosure and
Use of the Social Security Number of Another Person in Violation of the Laws of the United
States. The statute at 42 U.S.C. 408(a)(8), criminally sanctions anyone who "discloses, uses,
or compels the disclosure of the social security number of any person in violation of the laws of
the United States. Neither fraud or deceit, or impairing the function of the government, are
inherent in the statutory language of 42 U.S.C. 408(a)(8). The respondent's actual conduct is
not the appropriate inquiry in determining whether a conviction under 42 U.S.C. 408(a)(8)
constitutes a conviction for a crime involving moral turpitude. See generally Moncrieffe v.
Holder, 133 S.Ct. 1678 (2013). Accordingly, the record does not establish that the respondent
has been convicted for a crime involving moral turpitude committed during the relevant time
frame. Therefore, the Immigration Judge incorrectly determined, based upon the respondent's

2
Cite as: S-G-G-, AXXX XXX 730 (BIA Jan. 2, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Under section 240(c)(2) of the Act, the respondent must establish clearly and beyond doubt
that he is not inadmissible under section 212(a)(6)(C)(ii) of the Act. See Soriano v. Gonzales,
484 F.3d 318, 320 (5th Cir. 2007). The dismissal of the indictment and the respondent's
subsequent conviction on a different charge does not establish clearly and beyond doubt that the
respondent did not falsely claim to be a citizen of the United States on a passport application.
There is no requirement that the government prove beyond a reasonable doubt that the
respondent is guilty of making a false claim to United States citizenship. The fact that the
respondent was initially indicted for making false statements in an application for a United States
passport is reasonable, substantial and probative evidence that raises a legitimate question
regarding whether the respondent made a false claim to United States citizenship that implicates
inadmissibility under section 212(a)(6)(C)(ii). Thus, the respondent is properly required to meet
his burden of proving that he is not inadmissible. The respondent has not submitted a copy of
the passport application considered by the grand jury in an attempt to meet his burden of proving
clearly and beyond doubt that he did not make a false claim to United States citizenship for any
purpose or benefit under the Act. See generally Naser v. Gonzales, 123 Fed.Appx. 624 (5 th Cir.
2005) (unpublished). Accordingly, the respondent has not established clearly and beyond doubt
that he is admissible into the United States under section 212(a)(6)(C)(ii) of the Act.

730

conviction under 42 U.S.C. 408(a){8), that the respondent is precluded from establishing good
moral character under section 10l(f)(3) of the Act.

ORDER: The respondent's appeal from the determination that he has not established clearly
and beyond doubt that he is admissible into the United States under section 212(a)(6)(C)(ii) of
the Act is dismissed.
FURTHER ORDER: The respondent's appeal from the Immigration Judge's decision
pretermitting the respondent's application for cancellation of removal upon finding the
respondent to be precluded from establishing good moral characer based upon a conviction for a
crime involving moral turpitude is sustained.
FURTHER ORDER: The record is remanded for further consideration of the respondent's
application for cancellation of removal.

3
Cite as: S-G-G-, AXXX XXX 730 (BIA Jan. 2, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Based upon her determination that the respondent had been convicted of a crime involving
moral turpitude, the Immigration Judge did not reach whether the respondent was precluded from
establishing good moral character under the catch-all provision of section 101(f) of the Act. This
Board has held in Matter of Guadarrama, 24 l&N Dec. 625 (BIA 2008), that an alien who makes
a false claim to United States citizenship may be considered a person who lacks good moral
character, but such a finding is not automatically mandated. The respondent was not afforded an
opportunity before the Immigration Judge to submit evidence that, despite the evidence that he
engaged in fraudulent and deceitful behavior in pursuing a passport from the United States
government, he was, nevertheless, a person of good moral character during the entirety of the
relevant period. Accordingly, the record will be remanded to the Immigration Judge for
consideration of whether the respondent is precluded from establishing good moral character
under the catch-all provision of section lOl(f) of the Act. Under such an inquiry, the
respondent's actual conduct is relevant to whether he is precluded from establishing good moral
character. See Matter of Guadarrama, supra, at 627. The following orders will be entered.