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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.
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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.
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Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike, Suite 2000 Fals Church, Vrginia 20530 Van Der Hout, Brigagliano & Nightingale LLP OHS / ICE Ofice of Chief Counsel - SFR P.O. Box 26449 San Francisco, CA 94126-6449 180 Suter Street, Fifh Floor San Francisco, CA 94104-029 Name: YE, XINGCHEN A 078-694-496 Date of this notice: 11 / 8 / 2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Malphrus, Garr D. Mann, Ana Mullane, Hugh G. Sincerely, Do c t Donna Car Chief Clerk yungc Usertea m: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t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: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013) t"
. U.S. Deparment of Justce Executive Ofce fr Itmigation Review Decision of the Board oflmmigation Appeals FaJls Church, Virginia 22041 File: A078 694 496 - Sa Francisco, CA In re: XIGCHEN YE IN RMOVAL PROCEEDINGS APPEAL AND MOTION Date: ON BEHALF OF RESPONDENT: Zachary Nightingale, Esquire ON BEHALF OF OHS: James B. Gildea Assistant Chief Counsel APPLICATION: Termination of proceedings; remand NOV -8 2013 The respondent has appealed a Immigration Judge's decision of August 7, 2012, fnding that te respondent had abandoned his lawfl permanent resident ("LPR") status. While the appeal was pending, the respondent fled a motion to remad, which the Department of Homeland Securty ("DHS") has OPposed. The record will be remaded to the Immigration , Judge. We review fr c1ea eror the fndings of fct, including the deterination of credibilit, made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues, including wheter the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.1 (d)(3)(ii). Where, as here, the respondent has a colorable claim of LPR status, the buden is on the DHS to demonstrate by clear, uequivocal, and convincing evidence that the respondent abandoned that status. Khoshahm v. Holder, 655 F.3d 1147 (9th Cir. 2011). In order to quaify as a returing resident, a alien "must be retuing to a urelinquished lawfl permaent residence afer a temporay visit abroad." See Singh v. Reno, 113 F .3d 1512, 1514 (9t Cir. 1997). A trip is a "temporary visit abroad" if (a) it is fr a "relatively short" period, fxed by some early event; or (b) te tp will terinate upon the occurence of a event that has a reasonable possibility of occuring wthin a relatively shor period of time. See Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9 Cir. 1986). If the alien's trip abroad is not "relatively shor," it is a "temporay visit abroad" only if the alien has "a continuous, uninterupted intention to ret to the United States during the entirety of her visit." See Khodagholian v. Ashcrof, 335 F.3d 1003 (9th Cir. 2003). Factors to be considered in evaluating the respondent's intent to retur to the United States include: "the alien's family ties, property holdings, and business affliations within the United States, and the alien's faily, property, and business ties in the freign couty." Singh v. Reno, supra, at 1514-15. Te respondent was granted LPR status in 2004 and was placed in removal proceedings in April 2010. The Immigration Judge fund that te respondent had abadoned his status, citing to the fct that between 2004 ad 2010, the respondent spent a minimal number of days in the United States, ad he got maried, had children, and started his own business in China. T. W @ = W 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: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013)
. AQ78 694 496
The Immigration Judge specifcally noted the deah of documentay evidence of the respondent's ties to the United States (l.J. at 10), the lack of affdavits fom family or fiends (I.J. at 12-13), the lack of proof tat. he maintained any rental units or had any property ownership in the United States (l.J. a
. 10, 12). With his motion, the respondent has submitted evidence of his United States business ties (Motion, Exhs. B l-C6), afdavits fom his United States citizen family members (Motion, Exh. A, 2-4), documentation of the ba account he maintained in the United States (Exh. A12), as well as evidence he says indicates that, during the years in question, he paid rent to maintan a residence here (Motion, Exh. A2) and owned, registered, and paid taxes on the car which he kept in the United States (Motion, Exh. A, 5-8). The respondent has also submited medical evidence regarding his fther's illness and death which he said caused him to remain in China in 2005, as well as evidence of his own medical problem that he said delayed his ret in 2010 (Motion, Exhs. D ad E). Although the evidence profered by the respondent was previously available, he asserts a claim of inefective asistace of counsel against his frer attorey fr failing to advise the respondent to produce such evidence (Motion, at 14-20). He also claims that his atorey filed to advise him of the consequences of a removal order, namely the 10-year bar fom retuing to the United States, and did not give him the option of withdrawng or renouncing his LPR status (Motion, at 23; Tr. at 100-08). The respondent has complied with the requirements set frth in in Matter of Lozada, 19 l&N Dec. 637 (BIA 1988), fr ineffctive assistance of counsel claims (Motion, Exh. H, 2-5). We will remand fr the Immigration Judge to evaluate the inefective assistance claim and to determine whether the respondent ha established the requisite prejudice. See Dent v. Holder, 627 F.3d 365, 373 (9 Cir. 2010) (prejudice "means that the outcome of the proceeding may have been afected by the alleged violation"). 1 Accordingly, the fllowing orders shall be entered. ORDER: Te respondent's motion to remad is granted. FURTHER ORDER: The record will be remanded to the Immigration Judge fr fher proceedings consistent with the fregoing opinion and fr the entry of a new decision.
R THE BOARD 1 Given our disposition of the motion, we need not adjudicate the respondent's appeal at this time. 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: Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT File: A078-694-496 In the Matter of XINGCHEN YE RESPONDENT SAN FRANCISCO, CALIFORNIA August 7, 2012 IN REMOVAL PROCEEDINGS CHARGES: Section 212(a) (7) (A) (i) (I) of the Immigration and Nationality Act as amended as an Irigrant who, at the time application for admission, was not in possession of a valid unexpired Immigrant visa, the entry permit Border crossing card, or other valid entry document required by the Act and a valid unexpired passport or other suitable travel document or documents of identity and nationality as required under the regulations issued by the Attorney General under Section 2ll(a) of the Act. APPLICATIONS: Abandonment of residence. ON BEHALF OF RESPONDENT: ROBERT CUMMINGS, ESQUIRE, 2000 BROADWAY STREET, REDWOOD CITY, CALIFORNIA 94063 ON BEHALF OF OHS: JAMES B. GILDEA, ESQUIRE, 120 MONTGOMERY STREET, SUITE 200, SAN FRANCISCO, CALIFORNIA 94104 ORAL DECISION OF THE IMMIGRTION JUDGE Respondent is a married male, native and citizen of China. The Department of Homeland Security instituted I m m i g r a n t
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w w w . i r a c . n e t proceedings against the Respondent with the issuance of a Notice to Appear dated April 12, 2010. A copy of this notice is located in the record at Exhibit 1. At a Master Calendar hearing held on April 27, 2011, Respondent admitted allegation one, two, and three in the Notice to Appear, denied allegations four and five and denied the charge of removability. Respondent sought to get an abandonment of residence hearing. Respondent declined to designate a country of removal so the Court directed China. In addition, Respondent sought to apply for cancellation of removal pursuant to EOIR 42A. This relief is available to lawful permanent residents, to excuse or waive crimes. However, Respondent, in this case, is not eligible for such relief nor, for that matter, has he submitted any type of application. Therefore this request will be considered waived. The Court held a hearing on Respondent's claim on August 7, 2012. At this hearing, Respondent submitted several documents and testified in support of his claim. EVIDENCE OF THE HEARING The evidence of the hearing consisted of the following. Exhibit 1 was the Notice to Appear. Exhibit 2 was a document submitted by the government, including the record of sworn statement given the Respondent on April 5, 2010, as well as a record of Respondent's entries back and forth from the United States. Exhibit 3 consisted of a declaration from the A078-694-496 2 August 7, 2012 ... .... ^."." W I m m i g r a n t
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w w w . i r a c . n e t Respondent, a statement of entries and departures, a CV and resume of the Respondent, two copies of certificates for the Respondent's two Masters' Degrees, a letter that purports to be from Intel. However, the Court notes that it does not have a certificate of translation as required and 8 C. F. R. will give limited weight to this document. Exhibit H, 3H, was a letter from an individual named Kristen Durham from Bay Area Council. Ms. Durham was not made available. A letter from Ron Collier, what appears to be a declaration of an individual named Naomi Brochus. Ms. Brochus and Mr. Collin Snyder, then, were made available, a declaration from Minerva Yang, again Ms. Yang was not made available. Respondent also submitted tax documents from 2005 to 2007, as well as a copy of his older passports, and what purports to be copies of Respondent's older passports, some documents relating to his purchase of a property in 2007, as well as a copy of Respondent's lawful permanent resident card, and a title for a car dated 08/04/2004. Respondent, in Exhibit 4, submitted a deed for property purchase in 2011. And Exhibit 5 consisted of a certificate of title for an automobile dated 2011. Exhibit 6 consisted of a 1994 letter from an individual back at his university. And Exhibit 7 consisted of the 2011 taxes. Respondent also testified in support of his application and his testimony can be briefly sumarized as follows. Respondent is a native and citizen of China. Respondent entered the United States sometime in 1994. A078-694-496 3 August 7, 2012 % FT I m m i g r a n t
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w w w . i r a c . n e t Respondent claimed he entered here to go to school. He explained that he came to the United States on an F-1 visa to study at the University of Illinois in Urbana, Illinois. He obtained two Masters' Degrees, one in English Literature and English Language and a second one in Information Science. After these degrees, he went on to work several years for various companies in the United States. Respondent explained that around 2004 his father became ill and he had spent approximately 10 years in the United States so instead he chose to return back home to spend some time with his father. He explained that his father hadbeen suffering from Parkinson's so he returned to be with him. In 2005, his father passed away. Respondent, however, decided to remain in China because at that time he had a job offer with Intel in China. Respondent explained that this job we very interesting to him and he thought he would be a good fit there so he remained with Intel Company until October 2008. Respondent testified and the record reflects Respondent went up the corporate ladder with Intel China in 2008. He was responsible for a new product and he was asked to head-up this spinoff company, Nanosoft in China. He explained that they are connected and interdependent on Intel and he continues to head-up this company. Respondent testified that he originally obtained his LPR stats sometime in 2003 but somehow he never got the card A078-694-496 mE 4 ~ . .T . August 7, 2012 I m m i g r a n t
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l until November of 2004. Respondent discussed the fact that while he was living in China and working for Intel he did have and was concerned about his status in the United States. He was advised by Intei attorney, through email, that he would not lose his status in the United States provided that he kept returning and paying taxes. As a result, Respondent kept filing taxes from 2004 to the present. He also maintained a car here or claims to have maintained a car herlnd has provided a title- to that effect. Respondent also discussed how he would routinely travel to the United States but would try to spend less than 30 days every month to avoid tax consequences. Respondent also testified that back in China he was viewed as an Aerican and he was taxed more heavily and he points to a letter from Intel showing his green card number. Respondent also discussed his personal life and extended family. He stated that he has a sister who is a U. S. citizen and lives in Massachusetts. He has several cousins here in the United States, one in Massachusetts and one in California. Both are U. S. citizens. As for his imediate family, Respondent testified he is married to a woman who is a lawful permanent resident and together they have two children that were born in Hong Kong. Respondent discussed how his wife is a lawful permanent resident and that she owns some property in New York, apparently some sort of condominium that they sold and together they have purchased a property here in California. A078-694-496 5 August 7, 2012
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w w w . i r a c . n e t Respondent discussed how both his children were born in Hong Kong and neither of them have status. He explained that they are very young. Respondent testified that it is his intent and his wife's intent to return to the United States, live here, and raise their children. He explained he feels American and that this is his home and that he wishes to spend the rest of his life here. He explained that the opportunities here are better, the educational system is better, and he wants his children to be raised here in the United States. He and his wife intend to return and raise their children and educate them and they are merely waiting for approval for the children's cards, particularly once their daughter, who is practically three and a half to four years old will start kindergarten. They hope that they will be able to begin her education here. With respect to his other family, which was previously discussed, was his sister and his wife. His mother continues to live in China. Respondent testified that, although he filed taxes, he has not paid taxes in these last few years, to his knowledge, that he relied upon the advice of a f ried preparing his taxes for filing singly and he has not made any efforts to correct these representations of filing these taxes. Respondent claims that he did not intend to abandon his U. S. residency. He acknowledged that between 2004 and 2010 A078-694-496 6 August 7, 2012 TT TT V =M F P. I m m i g r a n t
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w w w . i r a c . n e t W . l he spent only approximately, according to this Court's calculations, approximately 61 days in the United States. Nevertheless, he explained that he would travel often and it was not his intention to abandon and he, in fact, made efforts to make sure that his status was legal through contacting the Intel lawyer. Respondent also explained that since arriving in the United States in April of 2010, he has returned back to China several times and, in fact, only spent the last two months or so in the United States despite knowing that his status was at risk. He explained, first of all, that he heads up a company in China and needs to be there, also that his children are very young, and finally he had some sort of medical condition that required emergency medical treatment in China. Respondent also explained that his wife was unable to come here today even though his wife and children live in China and he did not think to ask other people to come testify. Respondent, therefore, based on these documents and his testimony, believes that he has established that he has not abandoned his residency in the United States. STATEMENT OF THE LAW In order to qualify as a returning resident alien, alien must have acquired lawful permanent resident status in accordance with the laws of the United States and must have retained that status from the time he acquired it and must be returning to an unrelinquished lawful permanent resident after a A078-694-496 7 August 7, 2012 v I m m i g r a n t
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w w w . i r a c . n e t temporary visit abroad. See Matter of Huang, 19 I&N Dec. 749 at 757 (BIA 1988). A trip is a temporary visit abroad if it is for a relatively short period, fixed by some early event or the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. See Singh v. Reno, 113 F. 3d 1512 at 1514 (9th Cir. 1997), see Chavez-Ramirez v. INS, 792 F. 2d 932 (9th Cir. 198 6) . Trips abroad of eight or nine months in consecutive duration are not relatively short. See Singh v. Reno, supra at 1514. If an alien's trip abroad is not relatively short, it is not a temporary visit abroad and only if the alien has a continuous uninterrupted intention to return to the United States during the time of his visit, the intent is not the intent to return to the United States ultimately, but the intent is to return to the United States within a relatively short period of time, Singh at 1514. Factors that the Court must consider in making determinations on whether an alien harbored a continuous, uninterrupted intention to return, including alien's family ties, property holdings, business affiliations within the United States, and an alien's family, property, and business ties in the foreign country. See Khodagholian v. Ashcroft, 335 F. 3d 1003 at 1007 (9th Cir. 2003), an alien's desire to retain his A078-694-496 8 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t status without more is not sufficient. See Matter of Huang, supra. FURTHER ANALYSIS AND FINDINGS I've listened to the Respondent. I've reviewed the documentation in this matter and carefully observed his demeanor during his testimony. Although this Court notes that Respondent is subject to the provisions of the REAL ID Act, where he must submit evidence regardless of credible testimony, this Court notes that the Court did have some concerns regarding his testimony, particularly with respect to his tax returns. Respondent has a history of filing tax returns where he has made claims of telling the truth where, in fact, these documents are not truthful. This does raise the question if Respondent has been truthful to this Court. Nevertheless, even if Respondent did testify credibly, this Court is simply not persuaded that he has maintained a continuous, uninterrupted intention to return to the United States. The Court first addresses the time that Respondent has remained in the United States. In this case, the time at issue is from 2004 to April 4, 2010. In this case, the Court notes Respondent remained in the United States only approximately 61 days. That's approximately 10 days per year for the six years he's had his lawful permanent residence. In fact, Respondent was not even physically here when he was given his lawful permanent resident card. This shows the Court that he was A078-694-496 9 August 7, 2012 . F . M .. = I m m i g r a n t
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w w w . i r a c . n e t simply not interested in living in the United States and building a life in the United States for himself, rather he was simply interested, in the future, having the ability to return to the United States with his family. As further evidence of this, since coming and knowing in April of 2010, that his status was at risk, he yet again decided to return to China. Although Respondent offers various explanations of why he chose to do that, the Court finds it troubling that he would, knowing his status was at risk in the United States, he nonetheless would return to China and spend less than two months in the United States. In this case, the Court really has no idea how much time Respondent has spent in the United States in the last two years since 2010, except only to assume that it's probably less than 30 days a year, again serving further evidence that Respondent is simply not interested in making a life for himself in the United States. In addition, with respect to ties in the United States, this Court sees actually no ties here to the United States. Respondent has a United States citizen sister, yet failed to provide her or submit a statement from her or evidence, in fact, that she is a United States citizen. He claims to have property ties in the United States. The Court notes, however, that the only property tie he had was a car from 2003. He has not proven, or claimed, or shown me that he has paid taxes on it and in light of his other failures with taxes A078-694-496 10 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t and questionable taxes, this Court is not even sure that Respondent has done that. Moreover, although Respondent recently purchased a property, such property was purchased in 2011, giving the Court the impression he's trying to create evidence or ties to the United States knowing full well that his status was at risk. Respondent also claims his wife had some property yet he provides no evidence, whatsoever, of his wife's property ties, nor even a statement from his wife explaining that she had such property ties. As for family ties, this Court notes Respondent's wife was not here in the United States. This Court does not even have a copy of Respondent's wife's lawful permanent resident status. In addition, both his children were born overseas. They do not have status in the United States. It is clear to this Court that Respondent has virtually no ties to the United States with respect to family. He also claimed to have two cousins. Again, no evidence of any family members in the United States except his own self-serving testimony. In fact, it is clear that Respondent does and would like to live in the United States, eventually bringing his family here. However, what is certain here is that intent to eventually return to the United States is simply not grounds for showing that he had a continuous, uninterrupted intention to return to the United States. The only explanation this Respondent has given here is the illness of his father. This A078-694-496 11 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t ' Court is sympathetic to the Respondent. Certainly going and spending some last days of his father's life is understandable. And had Respondent done that and returned to the United States after the death of his father, then the Court may rule differently. However, e 'nstead chose to remain in China r1l pursuing his careerthere. Respondent submitted some evidence that he worked for Intel in the United States but none of this shows that they considered him a U . S. employee and the fact that he failed to pay taxes or make any effort to show that he considered himself living in the United States and had ties to the United States, again belies any claim. There's no explanation why Respondent was unable to find a job here in the United States to show his interest in living a life here, rather, what has been established here is that Respondent actually would, sometime in the future, like his children to come to the United States and go to school here. However, it is clear he had no intentions, in these last years, to live in the United States, own property in the United States, have his children born, or marry here in the United States, or create a life for himself in the United States. He did not own property. He did not have rental units. He did not even bother paying taxes, or even filing proper taxes, or making efforts to show he had an interest in doing so. He claims to have friends and family here in the United States. The Court notes that no one here came to testify A078-694-496 12 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t on Respondent's behalf and the letters and friends he claims are all prior to 2004. This Court is certain that Respondent lived here continuously from 1994 to 2004. He had friends and a life here but from 2004 on there's simply nothing in this record that persuades this Court to show that he had a continuous, uninterrupted intention to remain in the United States. And as noted, even since 2010 he has made it clear that he has no interest in remaining in the United States. Therefore, based on this finding, the Court finds that Respondent has not met his burden of proof in establishing continuous, uninterrupted intention to live in the United States, particularly his actions here since knowing his status was at risk even further confirmed this fact. This Court is sympathetic to Respondent. Certainly, he has an education here and would certainly like to raise his children here but intent and wishes do not create a case. And certainly, the fact that Respondent has shown me no efforts to even bring his children here, even have them born here in the United States show me that he's interested in creating a life for himself. He can certainly return and continue his business and his life in China with a visitor's visa for the business. The Court also notes Respondent's made quite an effort to show that he has business ties here to the United States and that he has done much for business in the United States. That's certainly a good thing. However, making efforts or positively A078-694-496 13 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t speaking about the United States abroad does not create an uninterrupted, continuous interest or continuous establishment to live in the United States. All it shows is that he thinks highly of the United States. It's certainly not a factor this Court has considered, or shown, or is required to consider for this purpose. Accordingly, the Court will find that Respondent has abandoned his United States lawful permanent residence, as such, he does not have any status in the United States, and will order him removed to China on the charges contained in the Notice to Appear. So ordered this 7th day of August, 2012. A078-694-496 14 August 7, 2012 I m m i g r a n t
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w w w . i r a c . n e t CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE LORETO GEISSE, in the matter of: XINGCHEN YE A078-694-496 SAN FRANCISCO, CALIFORNIA is an accurate, verbatim transcript of the recording as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Imigration Review. sac/seh NORMA DANFELT (Transcriber) YORK STENOGRAPHIC SERVICES, Inc. OCTOBER 1, 2012 (Completion Date} I m m i g r a n t