U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - ATL

180 Spring Street, Suite 332
Atlanta, GA 30303

Name: LOMO-MENSAH, SALOME FEEHI

A 096-710-971
Date of this notice: 5/1/2015

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

DQnftL c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Creppy, Michael J.
Mullane, Hugh G.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Salome Feehi Lomo-Mensah, A096 710 971 (BIA May 1, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Fogle, H. Glenn JR.

The Fogle Law Firm, LLC
55 IVAN ALLEN JR. BLVD., SUITE 830
ATLANTA, GA 30308

i ..

U.S. Department of Justice

Executive Office for Immigratin Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File:

Date:

A096 710 971 - Atlanta, GA

In re: SALOME FEEHI LOMG-MENSAH

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

H. Glenn Fogle, Jr., Esquire

Morris I. Onyewuchi
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination of proceedings; adjustment of status; voluntary departure

This case was last before the Board on May 10, 2013, when we remanded the record for further
consideration of the respondent's removability. Specifically, we noted in our remand order that
the record contains documentary evidence which suggests that the respondent did not depart
and unlawfully reenter the United States during the time period at issue, and we
therefore directed the Immigration Judge to make clear findings of fact concerning the time and
manner of the respondent's most recent entry into the United States. 1 In a written decision dated
September 16, 2013, the Immigration Judge held that the respondent is removable based on the
sole charge listed in the Notice to Appear. The respondent, a native and citizen of Ghana, has
appealed from that determination, and further contests the Immigration Judge's earlier denial of
her application for adjustment of status and alternative request for voluntary departure. The
Department of Homeland Security ("DHS") has submitted a brief in opposition to the appeal.
The record will be remanded for further proceedings.
In his September 16, 2013, decision, the Immigration Judge correctly stated that the
respondent, whose alienage has been established, bears the burden of showing by clear and
convincing evidence that she is present in the United States pursuant to a lawful admission, or that
she is clearly and beyond doubt entitled to be admitted to the United States and is not inadmissible
as charged.
See section 240(c)(2) of the Immigration and Nationality Act,
8 U.S.C. 1229a(c)(2); 8 C.F.R. 1240.8(c). The Immigration Judge then stated that the
respondent did not satisfy this burden in light of the Immigration Judge's undisturbed prior
adverse credibility finding.
I

The respondent's admission into the United States as a nonimmigrant visitor in 2001 is not in
dispute (I.J. (9/16/13) at 1). At issue is whether the respondent subsequently departed and
unlawfully reentered the United States, which would render her inadmissible as charged in the
Notice to Appear (Exh. 1).
Cite as: Salome Feehi Lomo-Mensah, A096 710 971 (BIA May 1, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

A096 710 971

Notably, the only evidence reflecting that the respondent departed the United States
subsequent to her lawful admission in 2001 was her own prior statements concerning a return trip
to Ghana (as reflected in an immigration officer's notes and testimony), and a declaration
ostensibly issued in Ghana in 2005 (I.J. (2/9/11) at 2-5; Exhs. 5, 8; Tr. at 61-85). Yet the
Immigration Judge held that the respondent was not credible, and he did not address the weight
that should be assigned the aforementioned declaration (I.J. (2/9/11) at 2-6). 2 In contrast with the
foregoing questionable evidence of the respondent's departure from the United States after her
2001 admission, the record of proceedings also contains medical records allegedly issued by a
health care system in Atlanta, Georgia, and a birth certificate purportedly issued by the Georgia
State Office of Vital Records, indicating that the respondent was present in the United States
during the contested time period (Exhs. 6-7). Depending on the weight to be attributed to the
latter countervailing evidence, the independent documentary evidence of record could potentially
satisfy the respondent's burden of establishing by clear and convincing evidence that she is present
in the United States pursuant to her undisputed 2001 admission. See generally Murphy v. INS,
54 F.3d 605, 610-12 (9th Cir. 1995) (discussing weight to be attributed to evidence at issue in
immigration proceedings) (persuasive authority).
In view of the foregoing, and considering our inability to conduct factfinding on appeal, we
find it necessary to again remand the record to the Immigration Judge so that he may evaluate all
relevant documentary evidence in the first instance. See Matter of S-H-, 23 l&N Dec. 462
(BIA 2002) ( emphasizing the need for Immigration Judges to include in their decisions clear and
complete findings and analysis that are in compliance with controlling law, in view of this Board's
inability to conduct factfinding on appeal); see also Matter ofA-P-, 22 I&N Dec. 468 (BIA 1999).
The Immigration Judge should then issue a new decision addressing whether the respondent is
removable as charged. 3 We reiterate that such decision must contain clear and complete findings
2

The Immigration Judge did not address below whether this declaration actually bears the
respondent's signature (Exh. 8).

We note that the DHS retains the authority to lodge additional or substituted allegations and
charges at any point during the respondent's removal proceedings. See 8 C.F.R. 1003.30,
1240. IO(e).
2

Cite as: Salome Feehi Lomo-Mensah, A096 710 971 (BIA May 1, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

However, contrary to the directive in our prior remand order, the Immigration Judge did not
make clear findings of fact concerning the respondent's most recent entry into the United States.
In particular, the Immigration Judge made no findings of fact concerning the independent
documentary evidence suggesting that the respondent was indeed present in the United States in
early 2005, where such evidence conflicted with the respondent's earlier (pre-removal
proceedings) statement that she was in Ghana at that time (I.J. (9/16/13) at 2). The
Immigration Judge's appropriate determination that the respondent was not a credible witness
does not relieve the Immigration Judge of his duty to assess independent documentary evidence of
record which could feasibly satisfy the respondent's burden of proof notwithstanding her lack of
credibility. See generally Ruiz v. U.S. Atty Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)
(reiterating, in asylum context, that Immigration Judge is required to evaluate corroborating
evidence to determine whether it independently satisfies alien's burden of proof notwithstanding
alien's lack of credibility); see also Matter of C-C-1-, 26 l&N Dec. 375, 383-84 (BIA 2014)
(same).

A096 710 971

of fact regarding the time and manner of the respondent's most recent entry into the United States,
considering all pertinent evidence of record.
As the record will be remanded for further consideration of the respondent's removability, we
will not presently address the respondent's appellate arguments concerning her eligibility for relief
from removal. Accordingly, the following order shall be entered.

Cite as: Salome Feehi Lomo-Mensah, A096 710 971 (BIA May 1, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and for the entry o
ew decision.

.. .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
IN THE MATTER OF:

)
)
)

Respondent

File No. A# 096-710-971

------------>
APPLICATIONS:

Adjustment of Status; Voluntary Departure

APPEARANCES

ON BEHALF OF RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Eli A. Echols, Esq.

Socheat Chea, P.C.
3500 Duluth Park Lane, Bldg. 300
Duluth, Georgia 30096

Assistant Chief Counsel

Department of Homeland Security
180 Spring Street, SW, Suite 332
Atlanta, Georgia 30303

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The Respondent, a female native and citizen of Ghana, was placed into removal
proceedings on August 20, 2008 and applied for adjustment of status and voluntary departure.
On February 9, 201 I, this Court denied both her applications, largely due to its adverse
credibility finding. The Court also denied as a matter of discretion. On May 10, 2013, the Board
of Immigration Appeals ("BIA" or "Board") remanded the record for the sole purpose of
clarifying its removability finding. The BIA order noted that there was no clear error regarding
the Court's adverse credibility finding, which was supported by significant inconsistencies.
The Court incorporates by reference its February 9, 2011 decision into this decision
herein. By way of clarification, the Court further finds that the Respondent is removable as
charged under section 212(a)(6)(A)(i) of the Act, in that she is an alien present in the United
States without being admitted or paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General.
It is undisputed that Respondent was admitted to the United States as a visitor on
September 30, 2001. Exh. 3, Tab E. The parties, however, disagree over whether Respondent (1)
stayed in the United States since that date or (2) departed the United States for about a month in
2005 and thereafter re-entered without inspection. Exh. 5; Exh. 8. Indeed, Respondent's
inconsistency on this point is part of the Court's adverse credibility finding. At the individual
merits hearing, Respondent maintained that she never left the United States after being admitted.
Other evidence, however, indicates that she told immigration officials that she left the United
States in 2005 and re-entered without inspection. Exh. 5; Exh. 8.
1

Immigrant & Refugee Appellate Center | www.irac.net

LOMO-MENSAH, Salome Feehi

In Removal Proceedings


.. ,

The Court turns to the regulations to help resolve the question of removability. Where a
respondent is charged as being present in the United States without being admitted or paroled,
the Department first has the burden to establish alienage. 8 C.F.R. 1240.8(c). Once alienage
has been established, the burden then shifts to the respondent to demonstrate either (1) that he or
she is presently in the United States pursuant to a lawful admission or (2) that he or she is
entitled to be admitted, beyond a doubt, and is not inadmissible. Id.

The Court incorporates by reference its additional findings in its initial February 9, 2011
decision, wherein it denied relief.
The Court therefore enters the following orders:
It is ordered that the Respondent is removable as charged.
It is further ordered that the Respondent's application for adjustment of status is
denied.
It is further ordered that the Respondent's application for voluntary departure 1s
denied.

q(,&!i3

Date

William A. Cassidy
United States Immigration Judge
Atlanta, Georgia

Immigrant & Refugee Appellate Center | www.irac.net

Here, it is undisputed that the Respondent, a native and citizen of Ghana, is an alien and
is charged under section 2 l 2(a)(6)(A)(i) of the Act. As such, the burden shifts to the Respondent
to demonstrate that she is lawfully present in the United States or that she is entitled to be
admitted. The Respondent cannot meet this burden. As the Court has explained in its initial
decision, and as the BIA agreed in its order, the Respondent's evidence suffers from substantial
inconsistencies. One of the significant inconsistencies, in fact, is Respondent's account of
whether she entered the United States without inspection in 2005. Because of the Court's adverse
credibility finding, particularly in regards to her apparent 2005 entry without inspection, the
Court finds that the Respondent does not meet her burden to show either that she is presently in
the United States pursuant to a lawful admission or that she is entitled to be admitted beyond a
doubt. Therefore, the Court finds that the Respondent has not established that she remains in the
United States pursuant to her original 200 I entry as a visitor. Therefore, the Court finds that the
Respondent is removable as charged under 212(a)(6)(A)(i) and sustains that charge.