/ U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg P1/ce, Suite 2000

Falls Church, Virginia 22041

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Napolitano, Theresa OHS/ICE Office of Chief Counsel - DAL
Attorney at Law 125 E. John Carpenter Fwy, Ste. 500
299 Broadway, Suite 204 Irving, TX 75062-2324
New York, NY 10007

Name: N , A A 803

Date of this notice: 6/7/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Pauley, Roger
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: A-N-, AXXX XXX 803 (BIA June 7, 2017)

 U.S. Department of Justice Decision of the Board of Immigration Appeals
1
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 803 - Dallas, TX Date:

JUN -
7 2017
In re: N

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Theresa M. Napolitano, Esquire

APPLICATION: Cancellation of removal under section 240A(b)

The respondent, a native and citizen of Senegal, has appealed from the Immigration Judge's
January 22, 2015, decision finding that she did not satisfy the continuous physical presence
requirement for cancellation of removal under section 240A(b)(l) of the Immigration and
Nationality Act, 8 U.S.C. 1229b(b)(l). The appeal will be sustained.

The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law. 8 C.F.R. 1003.l(d)(3)(i}, (ii).

The respondent entered the United States on November 22, 2002, after returning to Senegal in
2000 (l.J. at 5). Hence, the respondent is required to establish 10 years' continuous physical
presence in the United States from November 22, 2002, through November 22, 2012. In Matter
of Cisneros-Gonzalez, 23 l&N Dec. 668 (BIA 2004), the Board held that pursuant to section
240A(d)(l) of the Act, 8 U.S.C. 1229b(d)(l}, an alien's period of continuous physical presence
in the United States is deemed to end when the alien is served with the charging document that is
the basis for the current proceeding. See also Matter ofCamarillo, 25 l&N Dec. 644 (BIA 2011).

The Notice to Appear reflects that it was sent to the respondent on July 25, 2011, by certified
mail, return receipt requested. There is a strong presumption that the post office delivers certified
mail. See Matter ofM-R-A-, 24 I&N Dec. 665 (BIA 2008). However, the record does not contain
evidence establishing that the respondent actually received the Notice to Appear on or about
July 25, 2011. We canno t presume that the respondent received or can be charged with receiving
the charging document based solely on what is stated on the Notice to Appear. In addition, the
record reflects that counsel for the Department of Homeland Security personally served the Notice
to Appear on the respondent on March 27, 2013, which is more than 10 years after
November 22, 2002. The Immigration Judge acknowledged that the Notice to Appear was served
on March 27, 2013 (Tr. 2). Hence, we are unable to affirm the Immigration Judge's determination
that the respondent did not satisfy the continuous physical presence requirement for cancellation
of removal. In light of the foregoing, the record will be remanded for the Immigration Judge to
reconsider the respondent's application.

Cite as: A-N-, AXXX XXX 803 (BIA June 7, 2017)

 ...

'
803

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, and these proceedings are remanded for further proceedings
consistent with the foregoing opinion.

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FOR THEBO

Board Member Roger A. Pauley respectfully dissen The Immigration Judge's fmding (Tr.
at 5) that the respondent in 2011 "was served a Notice to Appear" that was sent by certified mail,
and whose receipt was not denied by the respondent, is not clearly erroneous. See Tr. at 1-3. Thus,
the later service of the same Notice to Appear in 2013 is legally irrelevant; the earlier service
stopped the respondent's accrual of continuous physical presence.

2
Cite as: A-N-, AXXX XXX 803 (BIA June 7, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

Date: January 22, 2015

File: A 803

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Immigration Removal Proceedings in the Maer of: A N , Respondent

Charge: Section 212(a)(7)(A)(i)(I), INA

Application: Cancellation of Removal for Certain Nonpermanent Residents, Section

240A{b){1), INA

On Behalf of the Respondent: Theresa Napolitano, Napolitano Law Firm, 299 Broadway,
Ste. 204, New York, New York 10007

On Behalf of Department of Homeland Security/Immigration and Customs Enforcement:

John Allums, Esq., Assistant Chief Counsel, 125 E. John Carpenter Fwy., Ste. 500, Irving,
Texas 75062

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL msTORY

The Respondent is a 41 year old female, native and citizen of Senegal. Exhibit I. On July
25, 2011, the Department of Homeland Security charged the Respondent as subject to removal
from the United States. Id. During the course of proceedings, the Respondent entered pleas as
follows.

Allegations:

(1) The Respondent admitted that she is not a citizen or national of the United States;
(2) The Respondent admitted that she is a native and citizen of Senegal;
(3) The Respondent admitted that she was paroled into the United States at New York,
NY on November 30, 2005 to complete her application for adjustment of status; and ,
{4) The Respondent admitted that her application to adjust status was denied on July 21,
2011.

Charge: The Respondent conceded that she is subject to removal from the United States
pursuant to Section 212{a){7){A){i){I), INA, as amended, as an immigrant who, at the time of
application for admission, is not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the Act, and a valid

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unexpired passport, or other suitable travel document, or document of identity and nationality as
required under the regulations issued by the Attorney General under Section 21 l(a), INA.

Sustaining of the Charge: Pursuant to the Respondent's pleas, the Court sustained the
allegations and charge of removal under Section 212(a)(7)(A)(i)(I), INA, specifically finding the
Respondent subject to removal from the United States to her native country of Senegal.

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Ap_plication: The Respondent requested relief in the form of Cancellation of Removal for
Certain Nonpermanent Residents, pursuant to Section 240A(b)(l), INA. The Respondent's
qualifying relative is her United States citizen daughter.

II. STATEMENT OF THE LAW

The Attorney General may cancel the removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the
United States if the alien:

(A) has been physically present in the United States for a continuous period of not
less than ten years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under Sections 212(a)(2), 237(a)(2), or
237(a)(3), INA (except in a case described in Section 237(a)(7) where the
Attorney General exercises discretion to grant a waiver); and
(D) establishes that removal would result in exceptional and extremely unusual
hardship to the alien's spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.

INA 240A(b)(l).

III. EXHIBITS

Exhibit 1: Notice to Appear, dated July 25, 2011

Exhibit 2: Notice of Intent to Deny Visa Petition, dated June 10, 2011
Exhibit 2A: USCIS Decision, dated July 21, 2011
1
Exhibit 3: Respondent's Supporting Documents, Tabs A-J
Exhibit 3A: Respondent Supporting Documents, Tabs I, J, filed December 22, 2014

1 The Government objected to Tab B, pgs. 9-13 as not properly certified as required by 8 C.F.R. 1287.6(a).
Respondent's counsel indicated that she had the original containing a stamp and signature. The Court excluded the
document for failure to comply with 8 C.F.R. 1287.6(a) and marked it for identification purposes only. The
Government also objected to Tab F, pg. 89, as the author was not present in court to testify or be cross-examined.
The Court held that it would admit the document, but give the document the appropriate weight in light of the
Government's objections. The Government also objected to Tab F, pgs. 93-97 as their purpose was unclear and the
handwriting contained therein was illegible. The Court ruled that it would admit the documents, but provide them
with the appropriate weight.
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 Exhibit 4: Form 42B, Application for Cancellation of Removal and Adjustment of
Status for Certain Nonpennanent Residents
Exhibit 5: Senegal 2013 Human Rights Report
Exhibit 6: Marked for Identification Purposes Only, Respondent's Supporting
2
Documents, Tab M

IV. TESTIMONY

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A. The Respondent testified, in part, as follows.

Direct Examination

The Respondent said that she currently lives with her daughter and mother. Her daughter,
Adji, is 11 years old and was born in Georgia. The Respondent said that Adji is performing well
in school. She is in the sixth grade. Adji is the Respondent's only child. The Respondent said that
she last had contact with Adji's father six months ago, but generally he does not have contact
with the Respondent or Adji. Adji's father does not provide financial support for Adji.

The Respondent is not currently married. She has been married one time to Thomas
Singleton. They married on May 24, 2010 and divorced in 2012 in Texas. The Respondent
indicated that she last spoke with Mr. Singleton in 2011. Her daughter is not the biological
daughter of Mr. Singleton.

The Respondent testified that she works braiding hair. She has been so employed for
eight years. The Respondent has never been arrested.

The Respondent first entered the United States in October 2000 with a visa. She has since
left the United States on two occasions. She said that she left at the end of 2000 and returned in
2002 using the same visa that she first used to enter. The Respondent testified that she left the
United States again in 2005 and returned after one month. She was paroled back into the United
States. Since 2005, she said that she has not departed the United States.

The Respondent said that Adji traveled to Senegal on one occasion in 2005 and remained
there for three months. She does not want Adji to live in Senegal because Adji's biological
father's family wants her to be circumcised through female genital mutilation (FGM). Adji's
grandmother first called the Respondent to discuss FGM in 2008. Adji's grandmother told the
Respondent to bring Adji to Senegal because she was getting older and needed to be
circumcised. She warned that if she waits until she is older, it will be more painful. The
Respondent said that she refused. The Respondent testified that Adji's grandmother has been

2 This evidence was submitted by the Respondent on the day of the hearing. The Government objected to this
evidence as failing to comply with the Practice Manual's requirement that "filings must be submitted at least fifteen
(15) days in advance of the hearing." IMMIGRATION COURT PRACTICE MANUAL, Chap. 3. l(b)(ii)(A). Accordingly,
the Court will not consider these documents as they were submitted untimely and has marked the exhibit for
identification purposes only.
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"harassing" her and her family in Senegal regarding Adji's circumcision. She explained that her
family belongs to the Walloftribe which does not practice FGM. However, the Respondent
testified that Adji's father's family belongs to the Fulani tribe, which still practices circumcision.

The Respondent testified that it would not be possible for her and her daughter to live in
another part of Senegal safe from Adji's father's family. She said that girls have been stolen
from school and circumcised. The Respondent testified that FGM is legal in Senegal. She said

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that law enforcement will not help but will only say that FGM is part of the culture.

The Respondent said that when she and her daughter visited Senegal in 2005, they stayed
with the Respondent's mother. They did not visit with Adji's father's family. The Respondent
said that they did not visit the family because Adji's grandmother is the reason that she and
Adji's father did not continue their relationship.

The Respondent provided that she also does not want her daughter to go to Senegal
because she suffers from asthma and allergies. Adji currently takes medicine for both these
ailments. The Respondent said that Adji goes to the doctor every three months. She takes
medication every day and has an emergency medicine she can take if she starts developing
symptoms. The Respondent testified that Adji was in the emergency room for asthma less than
one year ago when she started sneezing, coughing, and becoming short of breath. The
Respondent testified that Adji "gets better" when she is on her medication.

The Respondent testified that in Senegal school is conducted in the French language. She
said that Adji does not speak French. The Respondent stated that Adji would not be able to start
in the sixth grade in Senegal.

Cross-Examination

The Respondent said that her mother came to the United States as a visitor in 2005 and
has been living hre ever since. Her mother is not in immigration proceedings. The Respondent
testified that it is possible for Adji to stay in the United States if she is ordered removed.

The Respondent testified that Adji's father does not work. She has never tried to get child
support on behalf of Adji. The Respondent stated that Adji's father has never visited her and has
shown no interest in his daughter.

The Respondent stated that when she took Adji to Senegal in 2005 she did not let Adji's
father's family know that they were in the country and that they never found out. She said that
Adji's family does not provide any support for the child.

The Respondent testified that she knows that FGM is illegal in Senegal, but that it is still
performed.

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 (

The Respondent testified that the 1-130 filed on her behalf by her ex-husband, Mr.
Singleton, was denied by USCIS after two interviews. She said that it was denied because their
answers in the interview were not similar. USCIS found that the marriage was not valid.

Redirect Examination

The Respondent testified that if she is removed to Senegal she has not thought about with

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whom Adji could live in the United States. She said that Adji's father could not take care of her.

Examination by Court

The Respondent clarified that her mother overstayed the visa with which she entered the
United States in 2005. She said that her mother has no authorization to be in the United States.
The Respondent's mother has cancer.

The Respondent stated that if she is removed, her daughter will go with her to Senegal
because her daughter is her "life." The Respondent said that if she was ordered removed she
would not go to Senegal, but would find somewhere else to go, though she did not know where.
The Respondent said that she does not have authorization to go to any other countries.

The Respondent said that she earns approximately $500 per week. She said that the $500-
1,000 listed on her application represents her income before she deducts the overheard for her
braiding shop. The Respondent testified that she pays taxes every year.

V. LEGAL AND FACTUAL ANALYSIS

Under Section 240A(b)(l)(A), INA, the Respondent must show that she has been
physically and continuously present in the United States for ten years preceding the date of her
application for cancellation of removal. The ten year period of continuous physical presence ends
when the alien is served a Notice to Appear. INA 240A(d)(l). Moreover, the Respondent must
not have departed the United States for any period in excess of90 days or for any periods that in
the aggregate exceed 180 days. INA 240A(d)(2).

Court's Finding: The Respondent was served a Notice to Appear by certified mail, return
receipt requested on July 25, 2011. Exhibit I. The record does not reflect and the Government
has not alleged that the Respondent has been convicted of any crimes under Sections 212(a)(2)
or 237(a)(2), (4), INA. Accordingly, the relevant ten-year period is July 25, 2001-July 25, 2011.
See INA 240A(d)(l).

The Respondent first entered the United States on October 28, 2000. Exhibit 3, Tab B,
pg. 2; Exhibit 4, pg. 2. She departed the United States in November 2000 and did not return until
November 22, 2002. Id. This two year absence interrupted her prior accrual of physical presence.
See INA 240A(d)(2) (noting that any period in excess of 90 days severs the period of
continuous physical presence). Physical presence began to accrue again when she returned on

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November 22, 2002, but the Respondent had not yet accrued 10 years of physical presence on
July 25, 2011 when the Notice to Appear was served. Thus, inasmuch as the Respondent did not
have the requisite ten years of physical presence prior to the service of her Notice to Appear, she
is ineligible for cancellation of removal for certain non-permanent residents and her application
will be denied. See INA 240A(b)(l)(A), (d)(2).

VI.VOLUNTARYDEPARTURE

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To qualify for voluntary departure under Section 240B(b), INA, an applicant must
establish that:

(1) she has been physically present in the United States for a period of at least one
year preceding the date the Notice to Appear was served;
(2) she has been a person of good moral character for at least five years immediately
preceding such application;
(3) she is not deportable under Section 237(a)(2)(A)(iii) or 237(a)(4), INA;
(4) she has the means to depart the United States and intends to do so; and
(5) she shall be required to post a voluntary departure bond.

Discretionary consideration of an application for voluntary departure involves a weighing

of factors, including the applicant's prior immigration history, the length of residence in the
United States, and the extent of her family, business and societal ties in the United States. Matter
ofGamboa, 14 I&N Dec. 244 (BIA 1972).

Court's Finding: The Respondent did not apply for voluntary departure.

Accordingly, the following Orders will be entered:

VII.ORDERS

IT IS HEREBY ORDERED that the Respondent's Application for Cancellation of Removal for
Certain Nonpennanent Residents, under Section 240A(b)(l), IJ:'SA be and is DENIED.

IT IS FURTHER ORDERED that the Respondent be denied the privilege of voluntary

departure under Section 240B(b), INA. The Respondent did not apply for voluntary departure.

IT IS FINALLYORDERED that the Respondent be REMOVED from the United States to her
native country of Senegal on the charge contained in the Notie to Appear.

WARNING TO THE RESPONDENT: An order of removal has been entered against you. If
you fail to appear pursuant to a final order of removal at the time and place ordered by the
Government, other than because of exceptional circumstances beyond your control, you will not
be eligible for voluntary departure, cancellation of removal, and any change or adjustment of
status for ten years from the date you are scheduled to appear.

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Appeal: This decision is final unless an appeal is filed with the Board of Immigration Appeals
within 30 calendar days of the date of the mailing of this written decision.

ll
Date: January 22, 2015

Immigration Judge

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USDOJ/EOIR

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