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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's assertion that he was admitted to the United States pursuant to Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), by being waived through at a port of entry. The Board rejected the DHS’s argument that the respondent’s testimony alone was insufficient to satisfy his burden of proof, but stated that the immigration judge could require the submission of reasonably obtainable corroborating evidence on remand. The decision was written by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's assertion that he was admitted to the United States pursuant to Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), by being waived through at a port of entry. The Board rejected the DHS’s argument that the respondent’s testimony alone was insufficient to satisfy his burden of proof, but stated that the immigration judge could require the submission of reasonably obtainable corroborating evidence on remand. The decision was written by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's assertion that he was admitted to the United States pursuant to Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), by being waived through at a port of entry. The Board rejected the DHS’s argument that the respondent’s testimony alone was insufficient to satisfy his burden of proof, but stated that the immigration judge could require the submission of reasonably obtainable corroborating evidence on remand. The decision was written by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
114 Mesa Park Dr., #200 El Paso, TX 79912 Name: FONSECA-HARO, RICARDO U.S. Department of Justice Executive Ofce fr Imigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike, Suite 2000 Falls Church, Vrginia 20530 OHS/ICE Ofice of Chief Counsel - ELP 1545 Hawkins Blvd. El Paso, TX 79925 A 097-369-036 Date of this notice: 5/27/2014 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Greer, Anne J. Wendtland, Linda S. Pauley, Roger Sincerely, Do c t Donna Car Chief Clerk Trane Userteam: 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: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014) . U.S. Department of Justice Executive Ofce fr Immigration Review Decision of te Board of Immigation Appeals Falls Church, Virgiia 20530 File: A097 369 036 - El Pao, TX In re: RICARDO FONSECA-HO I REMOVAL PROCEEDIGS APPEAL ON BEHALF OF RSPONDENT: Cynta Caales, Esquire ON BEHALF OF DHS: CHAGE: Lorely Ramirez Mavetz Assistt Chief Counsel Date: MAY 2 7 2014 Notice: Sec. 2 12(a)(6)(A)(i), I&N Act [8 U.S.C. 11 82(a)( 6 )(A)(i)] - Present without being admitted or paoled (fund)
APPLICATION: Adjustent of stats Te respondent, a native and citizen of Mexico, appeals fom the Imgation Judge's November 30, 20 11 , decision, fnding h removable a charged ad sttutorily ineligible to pursue adjustent of stats uder section 245(i) of the Immigration and Nationalit Act (Act), 8 U.S.C. 1255(i). His appeal will be sued ad te record will be remaded fr fer proceedings consistent wit ts decision. We review fndings of fct, including credibilit fndings, fr clea eror. See 8 C.F.R. 1003.l(d)(3)(i); see also Mater of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Mater of S-H-, 23 l&N Dec. 462 (IA 2002). We review questions of law, discretion, or judgment, and all other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii). The respondent was chaged with being present without fs being admitted or paoled, but he mantned befre the Imigation Judge, ad he reiterates on appeal, that he was admitted to the United States when he was waved trough at a por of ent (I.J. at 1-2; Tr. at 2-3, 36-37; Resp. Brief at 1-2). In sustaining te charge, the Imgation Judge concluded a a mater oflaw tat a individua waved tough at a por of ent has not been admited. He did not allow te respondent to testif to provide fer details regarding te circumstaces of his entry (I.J. at 2; Tr. at 37). Upon de novo review, we disagree with the Imigation Judge's legal conclusion tat a individu waved tough at a por of enty has not been admtted (I.J. at 2). Instead, as we held in Matter of Quilantan, 25 l&N Dec. 285 (BIA 2010), where a alien is perited to enter te United States afer he has presented himself fr inspection ad made no false cla to United States citizenship, the aien has been admited because the inspection satisfes the 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: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014) A097 369 036 requirements of procedural regulaty. See id. at 290-93; see also Mater of Areguillin, 17 I&N Dec. 308 (BIA 1980). In the couse of remaded proceedigs, te respondent wll be aforded a opportity to testif ad submit any other pertinent evidence regading te fcts ad circumstaces sur ounding his enty. However, he maintns te buden of proof in demonstrating tat he was waved troug at a port of enty, ad tus admited, in overcoming te chage of inadmissibility curenty contained on the Notice to Appea. See secton 240(c)(2)(B) of te Act, 8 U.S.C. 1229a(c)(2)(B); 8 C.F.R. 1240.10. I ts regard, we ae unpersuaded by te Depament of Homelad Security's (DHS's) appellate asertion that remad of the record is unecessay because the respondent did not have ay coroborating evidence of his maner of entry at te time of the prior heag ad canot cay his burden of proof with his (not yet provided) testimony aone (DHS Brief at 3). Instead, i Ma t ter of Quilantan, supra, the respondent appaently did not present ay documentay evidence corroborating her claim of a wave-toug admission, but she caied her burden of proof where te fcts surouding her enty were fund to be udisputed. See id. at 293. Fuer, even in te presence of a fctua dispute, a Immigation Judge has the authorit to deterine that credible ad persuaive testmony that refrs to specifc fcts sufces to cary a respondent's buden of proof, athoug the Imgation Judge neverheless may require the provision of reaonably obtanable corroboration where such is fund appropriate uder the paicula circumstaces. Cf section 240( c )( 4 )(B) of te Act (erng to requirements fr sustaining burden to establish eligibility fr relief fom removal). Because removability is still at issue, we decline to reach the respondent's agument regading his potentia eligibility fr adjustment of status or ay oter fr of relief fom removal (l.J. at 2; Notice of Appeal; Resp. Brief at 2-3). Accordingly, te fllowing orders will be entered. ORER: Te respondent's appea is sustaned. FURTHER ORDER: The record is remaded fr fer proceedings consistent wt this order ad fr te enty of a new decision. 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: Ricardo Fonseca-Haro, A097 369 036 (BIA May 27, 2014) ( / ( U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT File A 97 369 036 In the Matter of RICARDO FONSECA-HARO Respondent CHARGE: APPLICATION: APPEARANCES: El Paso, Texas Date: November 30, 2011 IN REMOVAL PROCEEDINGS Section 212(a) (6) (A) (1) of the Immigration and Nationality Act None ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Cynthia Canales, Esquire Lorely Ramirez Mravetz, Esquire ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent was placed in these removal proceedings by the issuance of a Notice to Appear that was filed with the Immigration Court. See Exhibit il. The Respondent is an adult male, native and citizen of Mexico. The Respondent admitted allegations one, two and three. He denied allegation four and denied the charge. However, he I m m i g r a n t
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w w w . i r a c . n e t , ( ( presented no evidence in regard to showing that he was admitted into the United States. He said that he was "waved through." That is not an admission. The Respondent has indicated that he might be eligible at some future date for relief. His I-140 was denied in April of 2005. There may be an additional I-140 pending. It is not clear whether that is through perhaps the same employer as in the past. His adjustment application was previously denied as well. The Respondent has no applications pending before the Imigration Court. Accordingly, the Court enters the following order. ORDER IT IS HEREBY ORDERED that the Respondent is ordered removed to the country of Mexico based on the charge in the Notice to Appear. I will issue a written order off the record. Imigration Judge A 97 369 036 2 November 30, 2011 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 LARRY R. DEAN, in the matter of: RICARDO FONSECA-HARO A 97 369 036 El Paso, Texas was held as herein appears, and that.this is the original transcript thereof for the file of the Executive Office for Imigration Review. jmg/mab Janine M. Giambalvo, Transcriber YORK STENOGRPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077 January 19, 2012 Completion Date I m m i g r a n t