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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Vtrg1ma 22041

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


B ,J OHS/ICE Office of Chief Counsel - BUF
43 SCHMARBECK AVENUE 130 Delaware Avenue, Room 203
BUFFALO, NY 14212 Buffalo, NY 14202

Name: B , A 033

Date of this notice: 10/19/2017

Enclosed is a copy of the Board's decision in the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms an Immigration Judge's
decision ordering that you be removed, any petition for review of the attached decision must
be filed with and received by the appropriate court of appeals within 30 days of the date of
this decision.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Liebowitz, Ellen C
Malphrus, Garry D.
Cole, Patricia A.

Liib(:.:;.,u
Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: J-B-, AXXX XXX 033 (BIA Oct. 19, 2017)
J ...

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 033 - Buffalo, NY Date:


OCT 1 9 2017
In re: J B

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


IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Waiver under section 237(a)( l )(H) of the Act

This matter was last before the Board on June 1, 2016, when we denied the respondenfs motion
to reconsider our decision dated January 29, 2016. In that order, we dismissed the respondenfs
,
appeal from the Immigration Judge s decision dated March 14, 2014, denying his application for
a waiver of inadmissibility under section 237(a)( l )(H) of the Immigration and Nationality Act,
8 U.S.C. 1227(a)( l )(H). The case is presently before us pursuant to a November 2, 2016, order
of the United States Court of Appeals for the Second Circuit, which remanded the case to the Bard
,
pursuant to the parties joint stipulation. The record will be remanded for further proceedings.

We assume the parties familiarity with the procedural and factual history of this case. The
joint stipulation before the court of appeals requested that the Board further consider whether the
,,
term "admission in 237(a)( l )(H) of the Act should be limited to defining only the first admission
,
in the respondent s case and not his second at the time of his subsequent adjustment of status. In
,
light of the government s joint stipulation, and the specific factual circumstances involved in this
case, we answer this question in the negative and hold that the respondent is eligible under section
237(a)( l )(H) of the Act to waive his underlying fraud, even as it is related to his initial admission
to the United States. See also Matter ofAgour, 26 I&N Dec. 566 (BIA 2015). The record therefore
will be remanded for the respondent to establish that he is otherwise eligible for the waiver in
question, and deserves a favorable exercise of discretion. See Matter ofTijam, 22 l&N Dec. 408
(BIA 1998). On remand, the parties should be given the opportunity to update the evidentiary
record, and the Immigration Judge may address any issues appropriate and necessary for the
resolution of the respondenfs claim.

Accordingly, the following order will be entered.

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

FOR THE BOARD

Cite as: J-B-, AXXX XXX 033 (BIA Oct. 19, 2017)
J

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 033 - Buffalo, NY Date:


OCT 19 2017
In re: B

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


CONCURRING OPINION: Patricia A. Cole

I respectfully concur in the result. I write separately to provide clarity as to why we are
remanding this record again to the Immigration Judge and to acknowledge our prior error of law.

This Board's prior decision held that the respondent was ineligible for a section 237(a)(l)(H)
waiver for his fraud at the time of his initial admission. This finding prompted the current Second
Circuit remand for the Board to further consider whether the term "admission" in 237(a)(l)(H) of
the Act should be limited to defining only the first admission in the respondent's case and not his
second at the time of his subsequent adjustment of status. The respondent only seeks to waive the
fraud that occurred in 2007 when he procured adjustment of status.

Since our decision in Matter ofAgour, 26 l&N Dec. 566, 570 (BIA 2015), makes clear that the
term "admission" includes entries into the United States with an immigrant visa as well as grants
of adjustment of status in the United States, the relevant time is 2007, the respondent's "second"
admission, when he sought adjustment of status. The respondent was inadmissible at the time of
adjustment because of the fraud made at the time of his initial entry in 2005. The statute provides
that the alien must be "inadmissible at the time of admission." Section 237(a)(1)(H) of the Act.
Thus, the respondent's 2005 fraud rendered him inadmissible at the time of his 2007 adjustment
and consequently the term "admission" in 237(a)(l)(H) of the Act is not limited to defining only
the first admission. I agree a further remand is required.

Board Member

Cite as: J-B-, AXXX XXX 033 (BIA Oct. 19, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board 11fl111migratio11 Appeals


Office of the Clerk

510? Leesburg Pike, Su11e 2000


Falls Church Virginia }20+!

Fontaine, Nisha V. DHS/ICE Office of Chief Counsel BUF


Serotte Reich Wilson, LLP 130 Delaware Avenue, Room 203
300 Delaware Avenue Buffalo, NY 14202
Buffalo, NY 14202

Name: B ,J A 033

Date of this notice: 1/29/2016

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

Userteam: Docket
' . ...
'
U.S. Department of Justice Decision of the Board of Immigration Appeals
'' Executive Office for Immigration Review
Falls Church, Virginia 22041

File: 033 - Buffalo, NY Date:

In re: J B

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Nisha V. Fontaine, Esquire

ON BEHALF OF DHS: Denise C. Hochul


Senior Attorney

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), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)]

Lodged: Sec. 237(a)(l)(B), I&N Act (8 U.S.C. 1227(a)(l)(B)] -


In the United States in violation of law

APPLICATION: Termination; section 237(a)(l)(H) waiver

The respondent, a native and citizen of Jamaica, appeals from the Inunigration Judge's
March 14, 2014, decision denying his application for a waiver of inadmissibility under section
237(a)(l)(H) of the Inunigration and Nationality Act, 8 U.S.C. 1227(a)(l)(H). The Department
of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.

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.
8 C.F.R. 1003.l(d)(3)(ii).

This case was last before the Board on April 5, 2012, when we affirmed the Immigration
Judge's determinations that the respondent is removable as charged and ineligible for a waiver of
inadmissibility under section 237(a)(l)(H) of the Act. We remanded the record to allow the
respondent to apply for any relief for which he was eligible.

On remand, the Inunigration Judge found that he did not have jurisdiction to consider the
respondent's application for a section 237(a)(l)(H) waiver because the scope of the remand did
not include the possibility of revisiting this issue. In the alternative, the Immigration Judge again
concluded that the respondent is ineligible for a section 237(aXI)(H) waiver because he was
admitted as a non-immigrant. The Immigration Judge further concluded that even if the
...

033

respondent had established statutory eligibility for a section 237(a)(l)(H) waiver, he would deny
that relief as a matter of discretion.

We acknowledge that there was some ambiguity in our remand order. See Matter of Patel,
16 I&N Dec. 600,601 (BIA 1978) (noting the Board's authority to limit a remand for a specific
purpose). While we affirmed the Immigration Judge's determination that the respondent is
ineligible for a waiver of inadmissibility under section 237(a)(l )(H) of the Act and specifically
noted that the respondent would be able to apply for a waiver under section 2 l 2(i) of the Act, we
granted the parties' requests to remand "to allow the respondent to apply for any relief for which
he is eligible," which arguably could include a section 237(a)(l)(H) waiver. 1 However, we will
again affirm the Immigration Judge's determination that the respondent is ineligible for a section
237(a)(l)H) waiver.2

The respondent contends on appeal that a section 237(a)(l)(H) waiver is available to waive
fraud or misrepresentation at the time of adjustment of status. We agree and have recently issued
a precedential decision in which we determined that adjustment of status constitutes an
admission for the purposes of section 237(a)(l)(H) of the Act. Matter of Agour, 26 I&N
Dec. 566 (BIA 2015). However, this does not alter our conclusion that the respondent is
ineligible for a section 237(a)(l )(H) waiver with respect to his fraud at the time of his initial
admission as a non-immigrant. The respondent was admitted to the United States in 2005
pursuant to a fraudulent non-immigrant visa He thereafter adjusted his status based on his
marriage to a United States citizen. Accordingly, the fraud that resulted in the respondent's
inadmissibility under section 212(a)(6)(C)(i) of the Act occurred at the time of his initial
admission in 2005, and any fraud or misrepresentation made at the time of the respondent's
adjustment of status was incidental to the fraud at the time of the respondent's initial admission. 3
Thus, although a section 237(a)(l )(H) waiver may be available to the respondent to waive any
fraud or misrepresentation that was ongoing at the time of his adjustment of status, such waiver
is not available to him with respect to the fraud at his initial admission. On its face, section
1
On remand, the respondent elected not to apply for a waiver of inadmissibility under section
212(i) of the Act (2013 Tr. at 16-18).
2
We note that the respondent continues to contest on appeal that he is removable as charged.
However, as our previous decision in this case makes clear, we agree with the Immigration Judge
that the respondent is removable as charged. There was no indication in our previous decision
that removability was the reason for our remand order or that removability is otherwise still an
open question. Accordingly, our previous affirmance of the Immigration Judge's determination
that the respondent is removable as charged is the law of the case and will not be revisited. See
Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) ("The law of the case doctrine commands that
when a court has ruled on an issue, that decision should generally be adhered to by that court in
subsequent stages in the same case unless cogent and compelling reasons militate otherwise."
(internal quotation marks omitted)).
3
There is no indication in the record that there was any fraud or misrepresentation in this case
other than that related to the fraudulent visa

2
"
033

237(a)(l )(H) applies to aliens who at the time of admission were inadmissible under section
212(a)(6)(C)(i) and who, inter alia, were otherwise admissible except for those grounds specified
under sections 212(a)(5)(A) (relating to labor certification) and 212(a)(7)(A) (relating to
documentation requirements for immigrants). It does not refer to aliens who are otherwise
admissible under section 212(a)(7)(B) of the Act, which refers to documentation requirements
for nouirnmigrants. 4 Because the respondent would remain inadmissible as a result of the initial
fraud even if a section 237(a)(l)(H) waiver was available to waive fraud at the time he adjusted
his status, he is therefore ineligible for adjustment of status. 5

The respondent also seeks remand for the purposes of requesting prosecutorial discretion.
However, remand is unnecessarily for the respondent to request prosecutorial discretion, which is
within the exclusive jurisdiction of the DHS and may be requested at any time during or after
removal proceedings. See Matter of Quintero, 18 I&N Dec. 348, 349-50 (BIA 1982); see also
8 C.F.R. 241.6 (providing that DHS may grant a stay ofremoval).

Having concluded that the respondent is ineligible for the relief for which he has applied and
that remand is not warranted, we will dismiss the appeal.

ORDER: The appeal is dismissed.

4
See Matter of Cadiz, 12 l&N Dec. 560 (BIA 1968) (holding that the predecessor statute to
section 237(a)(l)(H), namely section 241(f), was intended to promote family unity, and therefore
was inapplicable to an alien who entered as a nonimmigrant); }.fatter of!.fangabat, 14 I&N Dec.
75 (BIA 1972) (same).
5
We need not reach the Immigration Judge's discretionary determination. If we did, however,
we would not affirm the Immigration Judge's denial of the respondent's application as a matter
of discretion. The record does not reflect that the respondent was afforded the opportunity to
present equities to be balanced against the adverse factors in this case. ,\,fatter o/Tijam, 22 I&N
Dec. 408,412 (BIA 1998) (in deciding whether to exercise discretion favorably, the evidence of
the respondent's undesirability as a permanent resident must be balanced against the social and
humane considerations presented on his behalf to determine whether a grant of relief is in the
best interest of the United States).

3
e
'

Ul\'ITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

In the Matter of:

B ,J
A# 033 IN REMOVAL PROCEEDINGS

Respondent

CHARGES: INA 237(a)(l)(A) Inadmissible at Entry or Adjustment


INA 237(a)(l)(B) Present in Violation of Law

APPLICATIONS: INA 212(i) Waiver of Inadmissibility


INA 237(a)(l )(H) Waiver for Certain Misrepresentations

MOTIONS: Motion to Pretermit Waiver Application

ON BEHALF OF RESPONDENT ON BEHALF OF THE DHS


Nisha V. Fontaine, Esq. Denise C. Hochul, Esq.
Serotte Reich Wilson, LLP Senior Attorney
300 Delaware Avenue 130 Delaware Avenue, Suite 203
Buffalo, New York 14202 Buffalo, New York 14202

POST-REMAND DECISION AND ORDER OF THE IMMIGRATION JUDGE

The Buffalo Immigration Court ("Court") finds that J B


("Respondent") has abandoned his request for a waiver of inadmissibility pursuant to
INA 212(i). The government's motion to pretermit his request for a waiver for certain
misrepresentations pursuant to INA 237(a)(l)(H) shall be granted. The Court's
previous order of removal to Jamaica shall be reentered. See Order of the IJ (Jan. 4,
2010), remanded by J B , 033 (BIA Apr. 5, 2012).

I. FACTS AND PROCEDURAL HISTORY

On January 18, 2008, the Department of Homeland Security ("DHS") issued


Respondent a Notice to Appear ("NTA"), alleging that:

[1] He is not a citizen or national of the United States;

[2] He is a native and citizen of Jamaica;

I
A# 033

[3) He last entered the United States on or about April 14,
2005, at Baltimore, Maryland, as a B-2 visitor with
authorization to remain in the United States until August
12, 2006;

[4] The U.S. nonimmigrant visa that he used to enter the


U1tlted States was fraudulent, as it was not issued by the
U.S. government;

[SJ 011 or about January 22, 2007, Respondent's status was


adjusted to that of a lawful permanent resident, on a
conditional basis, at Buffalo, New York. Thls adjustment
of status was based on hls marriage to Alexia Doran, a U.S.
citizen;

[6) At the time that Respondent's status was adjusted to that of


a lawful permanent resident, he was ineligible for
adjustment of status because he had procured his entry into
the United States by fraud; and

[7] Respondent is present in the United States in violation of


law.

(Exh. 1 at 1, 3). Based on these allegation, the DHS charged that Respondent was subject
to removal from the United States pursuant to INA 237(a)(l)(A). 1

Respondent first appeared before the Court on March 14, 2008. Through counsel,
Respondent acknowledged service of the NTA. The government then requested a
continuance for additional time to prepare and investigate its case. The Court granted the
government's request and adjourned.

Respondent made additional appearances before the Court on April 9, 2008, and
October 24, 2008; however, on each of those occasions, the Court continued the matter
based on requests by the government.

On March 18, 2009, Respondent filed a motion to terminate proceedings, arguing


that the DHS had failed to meet its burden of establishing hls deportability. See Motion
to Terminate (Mar. 18, 2009); see also INA 240(c)(3)(A). The government opposed
the motion. See DHS Response to the Motion (Mar. 24, 2009).
1
According to INA 237(a)(l)(A), "Any alien who at the time of entry or adjustment ofstarus was within
one or more of the classes of aliens inadmissible by law existing at such time is deportable." The DHS
charged that Respondent was inadmissible at the time .of entry or adjustment pursuant to INA
2I2(aX6){C)(i). (fah. !). According to INA 2I2(a)(6)(C)(i), "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."

2
A# 033

On March 24, 2009, the DHS issued Respondent an amendment to the charging
document. (Exh. IA). In lieu of its original fourth allegation, the DHS then alleged that:

[4] Respondent gained his admission into the United States by


presenting a fraudulent nonimmigrant visa.

Id. The DHS also lodged an additional charge of removal against Respondent. Id.
(charging that he was subject to removal from the United States pursuant to INA
237(a)(l )(B)). 2

On March 31, 2009, the Court issued an order deferring judgment on


Respondent's previously filed motion to terminate. Order of the IJ (Mar. 31, 2009).

Respondent next appeared before the Court on April I, 2009. Through counsel,
Respondent acknowledged service of the document amending the NTA. The Court then
continued the matter to allow Respondent an opportunity to respond to the government's
allegations and charges ofremoval.

Respondent next appeared before the Court on May 8, 2009, at which time he
partially entered pleadings. Through counsel, Respondent admitted that: [I] He is not a
U.S. citizen; [2] He is a native and citizen of Jamaica; and [3] He last entered the United
States on or about April 14, 2005, at Baltimore, Maryland, as a B-2 visitor with
authorization to remain in the United States until August 12, 2006. See Transcript at 34-
35 (May 8, 2009). He denied, however, that: [4] He gained admission into the United
States by presenting a fraudulent nonimmigrant visa. Id. at 36. Based on this denial,
Respondent contested the charges of removal. Id. at 35-36. The Court then rescheduled
the matter for a merits hearing on Respondent's removability and adjourned.

On November 9, 2009, Respondent filed an updated motion to terminate


proceedings. See Motion to Terminate (Nov. 9, 2009). The DHS filed its response on
November 23, 2009, continuing to oppose termination of these proceedings. See DHS
Response to the Motion (Nov. 23, 2009). On November 24, 2009, the Court issued an
order deferring judgment on Respondent's motion. See Order of the IJ (Nov. 24, 2009). 3

Respondent appeared for a merits hearing before the Court on December 18,
2009. At the onset of the hearing, Respondent supplemented his pleadings, admitting that
[5] His status was adjusted to that of a lawful permanent resident, on a conditional basis,
at Buffalo, New York, on or about January 22, 2007, but denying that [6] He was at that
time ineligible for adjustment of status because he had procured his entry into the United
States by fraud, and that [7] He is present in the United States in violation of law. See

2
According to INA 237(a)(l)(B), "Any alien who is present in the United States in violation of this Act
or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing
admission into the United States as a nonimmigrant) has been revoked under section 221 (i), is deportable."
.' Respondent appeared before the Court on November 24, 2009; however, the Court was forced to continue
the matter because his primary attorney was unable to attend the scheduled hearing on account of medical
reasons. See Transcript (Nov. 24, 2009).

3
A# 033

Transcript at 56 (Dec. 18, 2009). The DHS then called Respondent and one other witness
to testify. 4 At the conclusion of testimony, the Court listened to oral arguments from the
parties before reserving its decision for a written opinion.

On January 4, 2010, the Court issued a written decision, sustaining the charges of
removal, denying Respondent's request for voluntary departure, and ordering him
removed to Jamaica. Order of the IJ (Jan. 4, 2010). The Court further held that
Respondent was ineligible for a waiver under INA 237(a)(l)(H). Id. at 6 ("[A] waiver
under 237(a)(l)(H) of the Act appears to relate only to fraud related to an application
for, or at the time of entry using, an immigrant visa. The grounds of removability
charged against the Respondent, however, rely upon his failure to comport with proper
documentation requirements for non-immigrant aliens, not immigrant aliens.") (emphasis
added). Additionally, the Court held that Respondent had not established statutory
eligibility for a waiver of inadmissibility under INA 212(i). Id. at 6-8.

On or about February 2, 2010, Respondent filed a timely appeal of the Court's


decision with the Board of Immigration Appeals ("BIA" or "Board"). Ultimately, the
Board remanded the matter to the Court based upon a mutual request by the parties. See
J B , 033 (BIA Apr. 5, 2012). In its decision, however, the BIA
affirmed the Court's findings as to Respondent's removability. Id. at 3 ("The
Immigration Judge was correct in finding the respondent knowingly presented a
fraudulent visa, and, therefore, he was not admissible at entry. Likewise, the respondent
is removable for being present in violation of law as he did not have valid documents to
enter. He would then be inadmissible at the time of his grant of conditional adjustment of
status."). Additionally, the Board noted that a "[a] waiver under section 237(a)(l)(H) of
the Act does not waive inadmissibility of a nonimmigrant." Id. at 3-4 ( citations omitted).

The matter was remanded to the Court based upon Respondent's claim that "he
was not given time to show hardship to a qualifying relative to qualify for a waiver of
fraud under section 212(i) of the Act." Id. at 4 (remanding with instructions "to allow the
respondent to apply for a waiver of fraud at entry" or "any relief for which he is
eligible").

On September 26, 2012, Respondent appeared before the Court for a remanded
hearing in removal proceedings; however, at that time Respondent was not prepared to
file any applications for relief from removal. Accordingly, the Court rescheduled the
matter and adjourned. 5

4
The government's second witness was Kathy McLean, management and program analyst for the Case
Resolution, Verification Division of U.S. Citizenship and Immigration Services. See Proposed Witness
List (Nov. 30, 2009).
'At the hearing held on September 26, 2012, the Court advised Respondent's counsel, "I've set a call up
date, counsel, of December 26, 2012-that's 90 days from today, which you've requested-if it's not done
by that date, the requests for relief will be deemed abandoned, dismissed for lack of prosecution, and an
appropriate order will be entered against Respondent." See Digital Audio Recording (Sept. 26, 2012).

4
A# 033

On January 4, 2013, Respondent filed an untimely Application for Waiver of
Grounds of Inadmissibility ("Fonn I-601 "), asking the Court to waive his removability
pursuant to INA 237(a)(l)(H). (Exh. 4D at 2); see also supra at note 5.

Respondent next appeared before the Court for a merits hearing on December 17,
2013; however, at the onset of that hearing, government counsel filed an oral motion to
pretermit Respondent's application for a waiver pursuant to INA 237(a)(l)(H). See
Digital Audio Recording (Dec. 17, 2013) (stating, "[T]he Board recognized, and the
government concurs, that the respondent is statutorily ineligible for the section
237(a)(l)(H) waiver. Specifically, the respondent entered the United States initially as a
nonimmigrant, albeit fraudulently, under a 82 visitor visa. Thereafter, he adjusted his
status. However, as noted by the Board, a waiver under section 237(a)(l)(H) of the Act
does not waive inadmissibility of a nonimmigrant."). The Court then listened to
arguments from the parties before reserving its decision on the government's motion. See
also Respondent's Legal Memorandum (Dec. 2, 2013). 6

II. DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings:

Exhibit 1: Notice to Appear (Jan. 18, 2008)


lA: Additional Charges of Inadmissibility/Dep01tability (Mar. 24,
2009)

Exhibit 2: Record ofDeportable/Inadmissible Alien (Oct. 31, 2007)

Group
Exhibit 3: Documents Submitted by the DHS on November 30, 2009 7
3A: Record of Deportable/Inadmissible Alien (Oct. 31, 2007)
3B: Notice of Intent to Rescind (Apr. 2, 2007)
3C: Nonimmigrant Visa ("NIV") in Respondent's Passport
3D: NIV Applicant Detail (Jan. 23, 2007)
3E: NIV Applicant Sununary (Jan. 23, 2007)
3F: Query Returned No Data (Oct. 29, 2007)
3G: Query Returned No Data
3H: Application to Register Permanent Residence or Adjust Status
("Form I-485"), with attached exhibits

6
The Court advised the parties that it intended on granting the government's motion; however, the Court
did not enter an oral order at the hearing held on December 17, 2013. See Digital Audio Recording (Dec.
17, 2013).
7
The Court admitted these documents into evidence over an objection from Respondent. See Order of the
IJ 2-3 (Jan. 4, 2010). That specific decision was not disturbed by the BIA. See J B
033 at 3 (BIA Apr. 5, 2012).

5
A# 033
Group

Exhibit 4: Documents Submitted by Respondent on January 4, 2013
4A: AILA-EOIR Liaison Meeting Agenda Questions and Answers
(Oct. 28, 2009)
4B: Notice of Action ("Form I-797C") (Dec. 27, 2012)
4C: Rejected Filing Notice to Attorney or Representative (Jan. 3,
2013), with attached documents
40: Respondent's Form I- 601 (Dec. 20, 2012)
4E: Certificate of Live Birth ofShia Chijun Bennett (Feb. 8, 2010)

Exhibit 5: Findings and Remarks of Elizabeth Gil, Forensic Docmnent


Examiner (Apr. I, 2010)

Group
Exhibit 6: Documents Submitted by Respondent on November 27, 2013 8
6A: Respondent's Amended Form I-601 (Nov. 27, 2013)
6B: Certificate of Live Birth ofShia Chijun Bennett (Feb. 8, 2010)
6C: Certificate of Live Birth of Randolph Barrow(Feb. 15, 1999); U.S.
Passport of Leslie Anthony Walker (Feb. 25, 2011 ); Certificate of
Marriage Registration (Jul. 20, 2006); Certified Transcript of Birth
of Alexia M. Doran (Jul. 7, 2006)
60: Letter from Rev. Walter Freeman (Nov. 25, 2013); Letter from
Tameka Robinson (Nov. 25, 2013); Letter from Amatullab N.
Askia (Nov. 22, 2013); Letter from Hyacinth E. Patterson (Nov.
16, 2013); Letter from Shushona Moore (Nov. 14, 2013); Letter
from Karen & Robert Muscarella (Nov. 10, 2013)
6E: Letter from Maxine Hillman (Nov. 25, 2013); Letter from Maxine
Hillman (Dec. 5, 2012); Personal Photographs
6F: Social Security Administration, Social Security Statement (Nov.
22, 2013); Respondent's 2012 U.S. Individual Income Tax Return
("Form 1040"), with attachments; Respondent's 2012 N.Y.
Resident Income Tax Return ("IT-201"), with attachments;
Respondent's 201 I Form 1040, with attachments; Respondent's
2010 Form 1040, with attachments; Respondent's 2009 Form
1040, with attachments; Respondent's 2008 Form 1040, with
attachments; Respondent's 2008 IT-201; Respondent's 2007 Form
1040, with attachments; Respondent's 2005 IT-201, with
attachments
6G: Indenture (Nov. 15, 2012); Erie County Clerk's Office, County
Clerk's Recording Page (Dec. JO, 2012); Erie County Real
Property Tax Services, Real Property Parcel Search (Nov. 22,
2013); Computer Screen Print-Out; Erie County Real Property Tax
Services, Real Property Parcel Search (Nov. 22, 2013)

8
In light of the Court's decision to pretermit Respondent's application for a waiver under INA
237(a)(I )(H) on legal grounds, this group exhibit was not moved into evidence. See Digital Audio
Recording (Dec. 17, 2013). It is included here for identification purposes only.

6
A# 033
6H:

N.Y. State Dep't of Taxation and Finance, Certificate of Authority
(Nov. 19, 2007); Erie County Clerk's Office, County Clerk's
Recording Page (Nov. 7, 2007); Business Certificate (Oct. 29,
2007)
61: Certificate of Conviction or Discharge, New York v. Bennett, Ind.
No. 2005-02643 (Sup. Ct. Erie County Nov. 22, 2013)

III. FINDINGS OF FXCT AND CONCLUSIONS OF LAW

A. Waiver of Inadmissibility under INA 2 l 2(i)

Respondent failed to submit an application for a waiver of inadmissibility


pursuant to INA 2 l 2(i) by the time set by the Court. See supra at note 5 and
accompanying text. At the hearing held on December 17, 2013, Respondent's counsel
advised the Court, "Your Honor, the respondent is not moving forward with a 212(i)
application at this time." See Digital Audio Recording (Dec. 17, 2013). Accordingly, the
Court finds that Respondent has waived the opportunity to file an application for a waiver
pursuant to INA 212(i). 8 C.F.R. 1003.3l(c). Any previously stated intention of
applying for such a waiver shall be deemed abandoned for lack of prosecution.

B. Waiver for Certain Misrepresentations under INA 237(a)(l)(H)

When the Board of Immigration Appeals remands a matter to the Court, the Court
reacquires jurisdiction. This means that, "unless the Board qualifies or limits the remand
for a specific purpose, the remand is effective for the stated purpose and for consideration
of any and all matters which the [immigrationjudge] deems appropriate in the exercise of
his administrative discretion or which are brought to his attention in compliance with the
appropriate regulations." Jvfatter of Patel, 16 I&N Dec. 600, 601 (BiA 1978)
(deportation proceedings). In these proceedings, the BIA remanded the matter to the
Court with instructions to "allow the respondent to apply for any relief for which he is
eligible." See J B t, 033 at 4 (BIA Apr. 5, 2012). However, the
Board also affirmed the Court's previous determination that Respondent was not eligible
for a waiver under INA 237(a)(l)(H). See Order of the IJ 6 (Jan. 4, 2010); J
B , 033 at 3 (BIA Apr. 5, 2012) (citations omitted) ("A waiver under
section 237(a)(l )(H) of the Act does not waive inadmissibility of a nonimmigrant.").

The Court finds that its jurisdiction is limited by the decision of the BIA to fonns
of relief for which Respondent is eligible. Such jurisdiction does not extend to
reconsideration of previous findings of ineligibility that have been affirmed by the Board.
The proper mechanism for challenging prior legal conclusions of the Court and BIA is a
motion to reconsider. See generally Immigration Court Practice Manual, Chapter 5.8
(Jun. 10, 2013); Board of Immigration Appeals Practice Manual, Chapter 5.7 (Oct. I,
2013). Respondent has not filed such a motion with the Court or Board, or otherwise
complied with the requirements for filing such a motion (including the time limits for

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seeking reconsideration). The Court has no other authority to disturb a decision of the
BIA. Therefore, the Court lacks jurisdiction to consider Respondent's application for a
form of relief for which he is not eligible. On that basis, the Court shall grant the
government's motion to pretermit his application.

In the alternative-assuming the Court had jurisdiction to revisit its previous


decision-the Court continues to find that Respondent has not established eligibility for a
waiver under INA 237(a)(l)(H). Respondent cites to a non-precedential decision of the
BIA for the proposition that "INA 237(a)(l)(H) relief is applicable to aliens who
fraudulently procured permanent residence through adjustment of status." See
Respondent's Legal Memorandum at 2-3 (Dec. 2, 2013) (citing Sunipha Damouni, A29
235 328 (BIA Jan. 10, 2013)). That decision, however, is not binding on the Court and
was subject to a vigorous dissent. See Sunipha Damouni, A29 235 328 (BIA Jan. 10,
2013) (Pauley, dissenting). 9 For the reasons articulated by the dissent in Damouni, the
Court disagrees with Respondent.

Finally-assuming the Court had jurisdiction to revisit its previous decision and
the Court was persuaded to adopt the majority's reasoning from Damouni-the Court
finds that Respondent's case is materially distinguishable from the facts at issue in that
case. In Damouni, tl1e Board considered a waiver application from an alien who sought
to waive a "fraud that occurred after her initial entry into the United States as a
nonimrnigrant." See Sunipha Damouni, A29 235 328 at 2 (BIA Jan. 10, 2013). Based on
those circumstances, the Board concluded that "an alien may be granted [a waiver under
INA 237(a)(l)(H)] for fraud or misrepresentation committed at the time of her
adjustment of status." Id. By contrast, Respondent's fraud began before his initial entry
into the United States as a nonimrnigrant. 10 See J B 033 at 3 (BIA
Apr. 5, 2012) ("The Immigration Judge was correct in finding the respondent knowingly
presented a fraudulent visa, and therefore, he was not admissible at entry.") (emphasis
added). Therefore, assuming arguendo that Respondent's fraud at the time of his
adjustment of status could be waived, Respondent would remain subject to removal as an
alien who committed a fraud during his initial entry into the United States. On those
grounds, the Court would pretennit his application as a matter of discretion.

C. Conclusion

The Court's previous findings as to Respondent's removability and request for


voluntary departure have not been disturbed. See Order of the IJ (Jan. 4, 2010),
remanded by J B , 033 (BIA Apr. 5, 2012). Accordingly, with no
other applications for relief from removal pending before the Court, the Court shall enter
the following order:

' Incidentally, the Board member who authored that dissent is the very same Board member who remanded
this matter to the Court. Compare Sunipha Damouni, A29 235 328 (BIA Jan. 10, 2013) (Pauley,
dissenting) with J B , 033 (BIA Apr. 5, 2012).
10
The DHS has now submitted a forensics report, which concluded that Respondent's passport "conforms
to genuine Jamaica[n] passport specimens on file," however, the U.S. machine readable visa contained
therein "ha[d] been photograph substituted and altered." (Exh. 5); see also (Exh. 3C).

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Order

IT IS HEREBY ORDERED that Respondent's request for a waiver of
inadmissibility pursuant to INA 212(i) has been ABANDONED;

IT IS FURTHER ORDERED that the Department of Homeland Security's


motion to pretermit Respondent's application for a waiver under INA 237(a)(l)(H) is
GRANTED; and

IT IS FURTHER ORDERED that Respondent be REMOVED to JAMAICA.

Philip J. Montante, Jr.


U.S. Immigration Judge

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