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Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Qffice of the Clerk

Church, Susan, Esq. Demissie & Church 929 Massachusetts Avenue, Suite 1 Cambridge, MA 02139

5107 leesburg P;ke, Suite 2000

Falls Church.

Virgima

20530

OHS/ICE Office of Chief Counsel - BOS P.O. Box 8728 Boston, MA 02114

Name: JOSEPH SCARRY, DANIEL

A 012-129-154

Date of this notice: 2/18/2015

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

Sincerely,

DO>VtL C!tlAA)

Enclosure

Panel Members:

Pauley, Roger

Donna Carr

Chief Clerk

Docket
Docket

Use rte am:

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net U.S. Department of Justice Executive Office for Immigration Review
U.S. D(\flartment of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review
U.S. D(\flartment of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 20530

Immigrant & Refugee Appellate Center | www.irac.net

File: A012 129 154 - Boston, MA

In re: DANIEL JOSEPH SCARRY

IN REMOVAL PROCEEDINGS

APPEAL

Date:

FEB

l 8 2015

ON BEHALF OF RESPONDENT: Susan Church, Esquire

U.S. D(\flartment of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review

CHARGE:

Notice:

Sec.

212(a)(2)(A)(i)(II), l& N Act (8 U.S.C. § 1182(a )(2)( A )(i)(II )] - Controlled substance violation

Sec.

212(a)(7)(A )(i)(I) , l& N Act (8 U .S.C. § l 182(a)(7)(A)(i)(I)] - Immigrant - no valid immigrant visa or entry document

APPLICATION: Termination of proceedings

The respondent appeals the Immigration Judge's January 3, 2013, decision finding him removable as charged and ineligible for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). The record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

Upon review of the record, we find that a remand is necessary because there are indicia in the record that require consideration as to whether the respondent has a claim to United States citizenship. See section 30l(g) of the Act, 8 U.S.C. § 1401(g). In particular, the information in the record indicates the respondent's father was a naturalized United States citizen who served in the United States Air Force for over 20 years ( Exhs. 5 and 6 ) .1 The evidence also indicates that the respondent and his parents lived on various United States Air Force bases in and outside of the United States and that the respondent himself served in the United States Air Force.2 See id. The record does not contain any specific information as to when the respondent's father

  • 1 Notably, during the proceedings, the respondent's attorney stated that the respondent's father

never became a naturalized United States citizen (Tr. at 42). evidence in the record (Tr. at 42; Exhs. 5 and 6 ) .

This is in contradiction to the other

2 Because the respondent was born in 1960, the required period of residence for a United States citizen parent under section 301 (g) of the Act is a total of ten years, five of which were after the age of 14 years. Because this issue was not explored below, the record does not include evidence establishing when or where the respondent's father lived in the United States and/or on United States' Air Force bases outside the United States.

U.S. D(\flartment of Justice Decision of the Board of Immigration Appeals Executive Office for Immigration Review

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net A012 1'29 154 . naturalized. 3 Based on these

A012 1'29 154

. naturalized. 3 Based on these indicia, and the fact that neither the Board nor the Immigration Judge has jurisdiction over a United States citizen, we find it provident to remand the record in order for the Immigration Judge to gather all of the necessary facts to determine whether the respondent has a valid claim to United States citizenship under section 301 (g) of the Act. See id.; see also generally Joseph v. Holder, 720 F.3d 228 (5th Cir. 2013) (The issue of citizenship is an "essential jurisdictional fact" which is never waived and may be raised at any point in the proceedings ).

ORDER: The record is remanded to the Immigration Judge for ro�istent Mili ilis opiniot:r nf ::
ORDER:
The
record
is
remanded
to
the
Immigration
Judge
for
ro�istent Mili ilis opiniot:r nf ::
FOR TH
BOARD
"

further

proceedings

Immigrant & Refugee Appellate Center | www.irac.net A012 1'29 154 . naturalized. 3 Based on these

3 The record shows that the respondent became a lawful permanent resident when he was approximately 1 year old in 1961 (Exh. 1 ). Thus, it would appear that the respondent's father and/or mother had some type of status when the respondent was born. Additionally, the record contains evidence showing that the respondent does not know whether his mother ever became a naturalized citizen; this issue should also be explored on remand ( Exhs. 5 and 6).

2

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION
 

UNITED

STATES

DEPARTMENT

OF

JUSTICE

 

EXECUTIVE

OFFICE

FOR

IMMIGRATION

REVIEW

UNITED

STATES

IMMIGRATION

COURT

 
 

BOSTON,

MASSACHUSETTS

 

File: A012-129-154

 

January

3,

2013

In

the

Matter

of

 

DANIEL

JOSEPH

SCARRY

   

IN

REMOVAL

PROCEEDINGS

 

RESPONDENT

   

CHARGES:

Section

212 ( a) ( 2) ( A) ( i) ( II)

of

the

Immigration

and

Nationality

Act

-

convicted

of

controlled

 

substance

violation.

 

Section

212 ( a) (7)

(A) ( i) ( I)

of

the

Immigration

and

Nationality

Act

-

no

valid

immigrant

visa.

 

APPL ICATION:

( 1)

Termination

of

proceedings.

 

ON

BEHALF

OF

RESPONDENT:

SUSAN

B.

CHURCH,

ESQUIRE

 
 

929

Massachusetts

Avenue,

Suite

01

929 Massachusetts Avenue, Suite 01

Cambridge,

 

Mass

02139

 

ON

BEHALF

OF

OHS:

HELEN

E.

MOORE,

ESQUIRE

 
 

Assistant

Chief

Counsel

JFK

Federal

Building

-

Room

425

Government

Center

 

Boston,

Mass

02203

 
 

ORAL

DECISION

OF

THE

IMMIGRATION

JUDGE

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BOSTON, MASSACHUSETTS
 
 

The

respondent

in

this

case

is

a

53-year-old,

married,

 

native

and

citizen

of

the

United

Kingdom.

Removal

proceedings

were

initiated

against

him

when

the

Immigration

Service

of

the

1

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net Department of Homeland Security issued a Notice to Appear

Department of Homeland Security issued a Notice to Appear on

March

9,

2010,

charging

him

with

being

removable

from

the

 

United

States

on

the

basis

of

the

charges

set

forth

above.

( Exhibit

1) .

 

The

respondent,

through

counsel,

admitted

the

truth

of

factual

allegations

1,

2

and

3

in

the

Notice

to

Appear,

denied

factual

allegations

5

through

8,

denied

the

charges

of

removability,

designated

England

as

the

country

for

removal

purposes if necessary and sought to have the proceedings against

the respondent terminated. ( Exhibit 2). ( The respondent's

pleading also indicated alternate relief possibilities, all of

which

have

been

considered

and

found

to

be

not

applicable} .

 

Based

upon

the

evidence

of

record,

I

make

the

following

findings

of

fact:

On

or

about

May

16,

1961,

the

respondent

was

granted

lawful

permanent

resident

status

in

the

United

States.

On

or

about

March

24,

1991,

the

respondent

relinquished

his

status

as

a

lawful

permanent

resident

by

completing

and

executing Form I-407 in front of an Immigration Officer of the

United States Department of Justice. ( Exhibit 4). I find

that

document to have been knowingly and willingly executed by the

respondent

without

coercion.

That

document

reflects

that

the

respondent

had

resided

in

Great Britain since 1986 and had been working there since that

date. The last time the respondent had paid income taxes in the

A012-129-154

2

January

3,

2013

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net The respondent stated to the Irrunigration inspector that he

United

States

was

in

1987.

The

respondent

stated

to

the

 

Irrunigration

inspector

that

he

did

not

intend

to

resume

residency

in

the

United

States

and

thereby

chose

to

voluntarily

surrender

his

permanent

resident

status.

 

On

or

about

March

9,

2010,

the

respondent

attempted

to

enter

the

United

States

at

the

Boston

Logan

International

Airport as a lawful permanent resident of the United States.

He

did

not

have

a

valid

unexpired

immigrant

visa,

reentry

permit,

border

crossing

card

or

other

valid

entry

document

required

by

the

Immigration

and

Nationality

Act.

 

On

or

about

April

7,

1993,

the

respondent

was

convicted

in

the

Los

Angeles

County

Court

at

Pomona

for

the

offense

of

possession

of

a

narcotic

controlled

substance,

to

wit:

cocaine.

(Exhibit 8).

 
 

On or about April 7, 1993, the respondent was convicted in

the

Los

Angeles

County

Court

at

Pomona

for

the

offense

of

use

under

the

influence

of

a

controlled

substance,

to

wit:

cocaine.

( Exhibit

9 ) .

 
 

Based upon my fact finding,

I

do

find

that

removability

has

been

established

by

clear

and

convincing

evidence.

The

respondent

is

ineligible

for

adjustment

of

status

and

cancellation

of

removal

as

a

nonpermanent

resident

based

upon

his

conviction

record.

 

Accordingly,

then,

the

following

order

will

be

entered:

 

A012-129-154

 

3

January

3,

2013

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

 

ORDER

 

IT

IS

HEREBY

ORDERED

that

the

respondent

be

removed

from

the

United

States

to

United

Kingdom

on

the

basis

of

the

charges

contained

in

the

Notice

to

Appear.

 
 

P1ease

see

the

next

paqe

for

e1ectronic

signature

LEONARD I. SHAPIRO U. S. Immigration Judge

A012-129-154

  • 4 January

3,

2013

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

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• . "
.
"
• . " Immigrant & Refugee Appellate Center | www.irac.net A012-129-154 5 Janua.ry 3, 2013 Cite
Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net
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A012-129-154

5

Janua.ry

3,

2013

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

� \. ··� .. //s//
\.
··�
..
//s//

Immigration

Judge

LEONARD

I.

SHAPIRO

 

shapirol

on

April

23,

2013

at

7:54

PM

GMT

Immigrant & Refugee Appellate Center | www.irac.net
Immigrant & Refugee Appellate Center | www.irac.net

Immigrant & Refugee Appellate Center | www.irac.net

 
� \. ··� .. //s// Immigration Judge LEONARD I. SHAPIRO shapirol on April 23, 2013 at

A012-129-154

6

January

3,

2013

Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)