Fogle, H. Glenn, Jr., Esq.

The Fogle Law Firm, LLC

4 Broad Street, N.W.
The Grant Building, Suite 700
Atlanta, GA 30303
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel -ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
Name: FERNANDES, ALEXANDER GEO . A 097-644-47
Date of this notice: 7/16/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Liebowit, Ellen C
Mann, Ana
Mullane, Hugh G.

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Sincerely,
DO ct
Donna Carr
Chief Clerk
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Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
U.S. Department of Justice
Execut
f
ve Ofce fr Imigation Review
Decision of the Board oflmigation Appeals
Falls Church, Virginia 2204 l
File: A097 644 447 -Atlanta, GA
In re: ALEXDER GEORGE FERANDES
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: H. Glenn Fogle, Jr., Esquire
ON BEHALF OF DHS: Wylly Jordan
Assistant Chief Counsel
CHARGE:
JUL 16 2013
Notice: Sec. 237(a)(l)(A), l&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), l&N Act [8 U.S.C. 1182(a)(6)(C)(i)] -
Fraud or willfl misrepresentation of material fct
APPLICATION: Termination
The respondent, a lawl peranent resident of the United States, native of Uganda, and
citizen of India, appeals the Immigration Judge's decision of October 31, 2011, which sustaned
the Departent of Homeland Security's ("DHS's") charge or removability. The appeal will be
sustained.
We review fr clear error the fndings of fct, 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 paries have met teir burden of proof, and issues of discretion. 8 C.F.R.
I 003. I ( d)(3)(ii).
The respondent's status was adjusted to that of a lawfl permanent resident on
January 27, 2005 (Exh. 1). Te DHS alleges that the respondent procured adjustment of status
by faud or by willflly misrepresenting a material fct, in that the respondent:
"submitted, or had submited on your behalf, a faudulent job leter fom the Sabal
Palm Superarket indicating that you were the Produce Manager, when in fct you
were never employed fr salary by the business. Tis letter was used to suppor your
1-140, Petition fr Alien Worker, as it provided you the necessary work experience to
qualif as a Skilled Worker (requiring at least two years of specialized work
experience) or Profession under section 203(b)(3)(A)(i) of the Act" (id.
We do not agree with te Immigration Judge's conclusion that the DHS met its burden to
prove that the respondent is removable. There is no dispute that the respondent worked in the
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Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
A097 644 447
produce deparment of the Sabal Palm Supermarket. The store's owner, Noel Debraganza,
testifed that the respondent was the produce manager fr 2 years, fom 1998 to 2000 (Tr. at 35-
40; I.J. at 2). Although the respondent was not paid a salay, he received room, board, and
"pocket money" in exchange fr his serices (l.J. at 5; Tr. at 36). The Immigation Judge
properly deterined that room and board "could be considered salary under the law" (l.J. at 5).
See Matter of Hall, 18 l&N Dec. 203 (BIA 1982) (holding that an alien who engaged in fnd
raising activities on behalf of his church and who received room, board, and pocket money in
ret, was employed within the contemplation of the Act). It fllows that the DHS's allegation
against the respondent does not support the charge of removability. See id; 8 C.F.R.
1003.15(a).
We disagree with the Immigration Judge's additional fnding that the job letter was
faudulent because it was "backdated" (l.J. at 5). As noted supra, the store owner testifed
consistently with the material contents of the letter and confred that the respondent was
employed as a produce manager during the corect time period. The Immigration Judge did not
fnd, and we do not conclude, that the backdating of the letter in any way infuenced the
goverent's consideration of the respondent's application fr adjustment of status. The plain
language of the statute requires that the faud or willfl misrepresentation be a "material fact."
Section 212(a)(6)(C)(i) of the Act. The United States Court of Appeals fr the Eleventh Circuit,
where this case arises, requires that the faud must be believed and acted upon by the party
deceived to its "disadvantage." See Ortiz-Bouchet v. US. Att' Gen., 714 F.3d 1353, 1356 (11th
Cir. 2013). To be material, the misrepresentation must also have a "natural tendency to infuence,
or [be] capable of infuencing, the decision of the decision-maing body to which it was
addressed." See United States v. Bofl-Rivera, 607 F.3d 736, 741-42 (I Ith Cir. 2010). We do
not conclude that the respondent's frmer employer's decision to backdate the letter he used to
document the respondent's employment meets this standard fr materiality. 1
The burden to show that the respondent is removable is on the OHS. The evidence must be
clear ad convincing. See 8 C.F.R. 1240.8(a); see also Woodby v. INS, 385 U.S. 276 (1966).
Based on this record, the OHS has not met its burden of proof in these proceedings. Accordingly,
the appeal is sustained, and the proceedings against the respondent are terminated.
2
Accordingly, the fllowing orders will be issued.
ORDER: The appeal is sustained.
1 The respondent never attempted to conceal that the letter was backdated (see Tr. at 31-32;
l.J. at 6).
2
The Immigration Judge noted that the respondent testifed that he obtained his tourist visa fr
the sole purpose of coming to the United States to seek employment (l.J. at 6). However, this
issue is not befre us and we will not address it.
2
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Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
A097 644 447
FURTHER ORER: The Immigation Judge's decision of October 31, 2011, is hereby
vacated, and respondent's removal proceedings are terminated.

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Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)

(
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Atlanta, Georgia
File A 97 644 447
In the Matter of
ALEXANDER HERNANDES
Respondent
CHARGE:
APPLICATION:
APPEARANCES:
ON BEHALF OF RESPONDENT:
H. Glenn Fogle, Jr., Esquire
Fogle Law Firm, LLC
44 Broad Street, N.W.
Suite 700
Atlanta, Georgia 30303
)
)
)
)
Date: October 31, 2011
IN REMOVAL PROCEEDINGS
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Wylly T. Jordan, III, Esquire
180 Spring Street
Atlanta, Georgia 30303
ORAL DECISION OF THE IMMIGRATION JUDGE
This matter comes on for a hearing on the 31st day of
October, 2011, upon the Department's necessary obligation to
establish the factual allegations as noted in the Notice to
Appear.
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(
For today's hearing, the following documents are noted
as exhibits. Exhibit #1 is the Notice to Appear. Exhibit #2 is
the I-213 with its attachments, pages noted as 1 through 13.
Exhibit #3 is Respondent's supplemental exhibit list in support of
the hearing today.
The parties that testified today were Special Agent
Kevin Heerlein and that's an ICE agent, Department of Homeland
Security; also the Respondent, Alexander Fernandes, testified; and
as well, Mr. Noel Debraganza and the testimony of the Respondent's
brother was proffered, that being that his arrangement is,
essentially, the same as the Respondent's arrangement to work for
Mr. Noel Debraganza at the Sabal Palm Supermarket.
In this matter, Special Agent Kevin Heerlein testified
that he spoke with the Respondent prior to the Notice to Appear
being issued. The date of issuance of the Notice to Appear is
March 14, 2011. The date of action, as noted by the I-213, was
March 14, 2011 at the location here in Atlanta. It was noted that
on March the 15th of 2011, the Respondent was encountered by the
HSI Special Agents Heerlein and Owens of the Atlanta, Georgia
Document and Benefit Fraud Task Force. It was noted that Mr.
Fernandes, the Respondent in this matter, was the subject of an
ongoing investigation in his procurement of an E-36 Imigration
visa by fraud or willful misrepresentation of material fact.
As indicated, on September the 1st, 2010 that the HSI
Special Agent Heerlein and Special Agent Morgan encountered the
A 97 644 447 2 October 31, 2011
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(
Respondent at USCIS office located at 2150 Parklake Drive,
Northeast, Atlanta, 30345. Further noted, the Imigration
Attorney Raymond Rampersad filed a G-28, as the attorney of
record, in the filing of an I-140 Petition for Alien Worker filed
on Fernandes' behalf by Universal Investments and Associates, as
well as the 485 application to register permanent residence for
adjustment of status filed by the Respondent.
At a prior Master Calendar hearing on April the 5th,
2011 in this matter, it was noted that allegations one through
four were admitted by the Respondent. Respondent denied
allegation number five. This allegation states as follows:
"
S
. You procured your admission, visa, adjustment or
other documentation or benefit by fraud or by willfully
misrepresenting a material fact, to wit: you submitted or had
submitted on your behalf, a fraudulent job letter from the Sabal
Palm Supermarket indicating that you were the produce manager,
when, in fact, you were never employed for salary by the business.
This letter was used to support your I-140, Petition for Alien
Worker, as it provided you the necessary work experience to
qualify as a skilled worker (requiring at least two years of
specialized work experience) or profession under Section
203 (b) (3) (A} (i) of the Act."
The Respondent denied this allegation and a contested
Master hearing was then set for today's date, October 31, 2011.
The Respondent further denied removability under Section
A 97 644 447 3 October 31, 2011
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237 (a) (1) (A) of the Immigration and Nationality Act (Act) , as
amended, in that, at the time of entry or adjustment of status,
you were within one or more of the classes of aliens inadissible
by the law existing at such time, to wit: aliens who seek to
procure or who have sought to procure, or who have procured a
visa, or other documentation, or admission into the United States,
or other benefit provided under the Act, by fraud or by willful
misrepresenting a material fact, under Section 212 (a) (6) (C) (i) of
the Act.
The testimony from the Respondent today indicates that
he arrived in November, 1998 at Miami, Florida and imediately
began to work for Mr. Noel Debraganza. He indicated that the
person that he worked for could not afford to pay him in his
supermarket business but gave him a job in stocking shelves and
maintaining produce, and then the supermarket owner further
testified that the Respondent was a produce manager. This
entailed checking the produce as it came in and making sure it was
priced correctly, a function which the supermarket owner then
later verified to make sure that the pricing was proper. The
Respondent indicated he worked from 7:00 in the morning until
10:00 at night, seven days a week. He indicated that he received
room and board and some "pocket money" from the supermarket owner.
The Respondent and the supermarket owner were related by virtue
that in their families, apparently had some sisters that were
married and that connected the two families together. They knew
A 97 644 447 4 October 31, 2011
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each other in their home country of India.
The Respondent indicated that he obtained a tourist B-2
visa for the purpose of coming to the United States to work. This
was his testimony. This was a tourist visa, not a visa such that
would allow him to work. The two main points of the testimony
today would hinge on the fact that the Respondent is alleged and
he, essentially, says he was never employed for salary. The
testimony indicates the Respondent received a small "pocket money"
and room and board. This is not the fatal fact in this case, as
providing room and board could be considered a salary under the
law. However, there is great controversy regarding the so-called
job letter from Sabal Palm Supermarket indicating that the
Respondent was a produce manager.
Now, this letter, according to the Respondent's
testimony, was requested in 2001. His testimony was that the
letter was prepared after November the 1st, 2000 and the letter
was dated November the 1st, 2000. His testimony is that the
letter was generated after the date of the letter and that the
letter was backdated. This was to verify his working relationship
with the supermarket and to be offered in the overall process of
the I-140. Now, to say whether the letter is fraudulent, it is
more likely the Court characterize this as a letter that was
prepared after the fact and backdated, as is the testimony
reflected by the Special Agents' investigation of the Respondent's
working arrangement and by the Respondent's testimony.
A 97 644 447 5 October 31, 2011
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Now, the supermarket owner can't remember exactly when
that letter was prepared but he maintains the letter is not a
fraudulent letter. The letter misstates and mischaracterizes the
complete scope and compass of the Respondent's work. While it
could be argued that room and board might equate to a salary, it
in no way affects the fact that the letter was dated November the
1st, 2000 and that this letter was prepared after the fact and was
false. And the statements contained on the face of that letter,
given the testimony of the witnesses and the Respondent today,
those false statements, as contained on that letter, Exhibit 2,
page 13, were used in the process of obtaining a labor
certification and in use of the I-140 process.
The Court, therefore, will sustain the Department's
allegation number five to the extent that it has been established,
by clear and convincing evidence, as heretofore mentioned, the
Respondent procured his admission, visa, adjustment or other
documentation or benefit by fraud or by willfully misrepresenting
a material fact, to wit: he had submitted on his behalf, and the
Court would note here, this job letter which contained false
statements for the purposes of use in his I-140, Petition for
Alien Worker.
It's further noted that in his testimony today, the
Respondent admitted that he obtained his tourist visa for the sole
purpose of coming to the United States to work at his relative's
business and this is a part of fraud in and of itself and
A 97 644 447 6
October 31, 2011
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(
knowingly and willfully misrepresented the purpose for which he
came to the United States. Certainly, the Department, should they
wish to amend allegation five, could do so but the Court does not
find that to be fatal to allegation number five because, in the
overall totality of circumstances, the Respondent did obtain his
admission, did obtain his visa and had supplied other
documentation by willfully misrepresenting the material facts, as
contained in the letter of November the 1st, 2000, and, as well,
in his testimony today in regard to his purposes for coming to the
United States as a tourist visa when, in fact, he sought solely to
come to work and earn money in the United States.
The Court also noted that the letter, referenced by the
supermarket owner, there was a statement in his testimony, he said
that he could not pay him but that he could work there and get his
certificate to go to work for somebody else. There's some
language in that statement that troubles the Court and that's this
overall process of how you can accumulate what documents you need
to get approval for what might be otherwise lawful employment.
The Court firmly believes the letter was prepared and then
backdated based upon the evidence in the case today and,
therefore, allegation number five will be sustained.
, JR. ,
igration Judge r

<:22t1
October 31, 2011 A 97 644 447
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* 8P
CERTIFICATE PAGE

r

I hereby certify that the attached proceeding before

WAYNE K. HOUSER, JR., in the matter of:
ALEXANDER FERNANDES
A 97 644 447
Atlanta, Georgia
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
JLN/BJN
,, , : 11
Janetta L. Nielsen, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
January 10, 2012
Completion Date
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