U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel -BLM

(MSP)
1 Federal Drive, Suite 1800
Ft. Snelling, MN 55111

Name: NGO, HUY

A 042-489-147
Date of this notice: 8/31/2016

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

Doruu.... C

t1ftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Huy Ngo, A042 489 147 (BIA Aug. 31, 2016)

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Anderson Ill, Thomas R.

Anderson & Anderson, LLC
2900 Washington Ave. North
Minneapolis, MN 55411

 U.S. Department of Justice

Executiv Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A042 489 147 -Fort Snelling, MN

Date:

In re: HUY NGO

AUG 3 1 2016

APPEAL
ON BEHALF OF RESPONDENT: Thomas R. Anderson Ill, Esquire
CHARGE:
Notice: Sec.

212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Remand
In a decision dated January 28, 2015, an Immigration Judge found the respondent removable
as charged based on his admissions and determined that the respondent's application for
cancellation of removal had been abandoned. Although the respondent had filed an application
for such relief, the Immigration Judge found that the respondent had not complied with the
requirement that he pay the filing fee. See 8 C.F.R. 1003.24(c). The respondent was ordered
removed to Vietnam.
On or about April 7, 2015, the respondent filed a motion to reopen, arguing that he properly
filed his application for cancellation of removal. Although he had not received a receipt notice
from the Department of Homeland Security ("DHS"), including a fee receipt, he stated that he
had submitted the application to DHS and had received a biometric appointment from that
agency; counsel for the respondent also submitted an affidavit indicating that the filing fee check
submitted on behalf of the respondent was submitted with the application to DHS and had been
cashed. The motion further indicated that the respondent and his counsel had attempted to obtain
a filing receipt from DHS but were unable to obtain such proof. Finally, the motion indicated
that the respondent is prima facie eligible for relief, because he has been a lawful permanent
resident for 25 years and has two United States children.
In a decision dated April 21, 2015, 1 the Immigration Judge denied the motion to reopen,
noting again that the respondent failed to file a fee receipt and adding that the respondent filed
"nothing" in support of his application for relief because the application for cancellation of
removal was merely a courtesy copy of what was sent to DHS. The Immigration Judge did not
address the respondent's arguments for failing to submit the filing receipt.

The Immigration Judge appears to have mistakenly hand-written the date as April 21, 2014.
Cite as: Huy Ngo, A042 489 147 (BIA Aug. 31, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

. A042 489 147

While we agree with the Immigration Judge that aliens must abide by the filing requirements
set out in the regulations, including the requirement that they submit proof of payment of filing
fees, it appears that the respondent has made attempts to file an application which would include
proof of a filing fee and, therefore, has complied in substance. Furthermore, the regulations also
provide that an Immigration Judge may extend the deadlines for filing of documents. See 8
C.F.R. 1003.3l(c). Such an extension would have been reasonable here, given that the
respondent has exercised due diligence in attempting to submit other evidence to support his
claim of proper filing, the OHS has not opposed the filing and has accepted his application and
scheduled the respondent for a biometrics check, and the only missing portion of the application
appears to have been the receipt for payment which is not in the control of the respondent or his
counsel, but rather is controlled by the DHS. Accordingly, we will vacate the Immigration
Judge's denial of the respondent motion to reopen, and we will remand to allow the respondent
to pursue his application for relief, as well as for any other matters deemed appropriate by the
Immigration Judge. See Matter of Patel, 16 l&N Dec. 600, 601 (BIA 1978) (noting that with
certain exceptions, the remand of a case by this Board is effective for not only the stated purpose
of the remand, but also for consideration of any and all matters which the Immigration Judge
deems appropriate).
ORDER: The respondent's appeal is sustained, and the Immigration Judge's order denying
the respondent's motion to reopen is vacated.
FURTHER ORDER:
consistent with this order.

The record of proceedings 1s remanded for further proceedings

FOR TIIE BOARD

zz:;

2
Cite as: Huy Ngo, A042 489 147 (BIA Aug. 31, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

On appeal, the respondent requests a remand for further adjudication of his cancellation of
removal application. He asserts that he filed his application for relief with the DHS, a copy of
which is in the immigration court's file, but that he was unable to file proof that he paid the
application fee through no fault of his own; the respondent has provided proof that the check
written to pay for the application was cashed by DHS (Respondent's Br. at 5-11). The DHS has
not filed an opposition to the respondent's appeal, and we are persuaded that the respondent's
appeal should be sustained.

.. .

. ' .. ; '
.

UNITED .STATES: DEPARTMENT. OF. jtJSTICE

.EXECUTIVE
REVIEW.
1.

IOJ'J
!i:r@T
i
FEDERAL \DRIVE:/ SUITE! 1850

NG,
.. MN . SSUl
. FORT.
. SNELI'
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.
'

. IN :+HE MAT.TER .OF

NGO, .HUY

.DATE: Jn 2R, 261

.

' UNJ(BLE'TO rowARD .:.. NO ADDRESS- PROVIDED

:..
rACHED: I'S.. A .. COPY Of. i"HE DECISI-ON OF: THE .n1IGRA'rION JUDGE. . THIS . DECISION.
.

.rs .FINAL UNLESS .AN AJ?J:>EAL IS .FILED .WI.TH .THE. BO.ARD OF IMMIGRATION APPEALS
.wrTHI: 30 cALENOA:R. .oY :_OF TH E DATE oF. raE MAi1rNG or i'H.rs wITTEN_ ECI$IoN.
SEE. :THE ENCLOSED FORMS .AND INSTRUCTIONS
FOR PROPERLY PREPARING YOUR APPEAL.
.
Yciui( 'NOTICE -oF APPEAL, .ATTACHE D -oocuMENTs, AND
FEE oR FEE wAIVER REQuEsT
. :
:eoARD oF IMMIGRATroN Ae-PeALs
Mosf BE. MAILED To
ciFFICE OF THECLERK
. . .
.
Pike,
S
. uite 2000
5107 Leesp,.1t,g

.
. FALLS CHURCH, VA 2-0530
1

s A COPY OF TrlE DECISION OF -THE. IMMIGRATION JUD.GE AS THE- RESULT

ATTACHED r
OF YOUR 'FAILURE TO APPEAR AT- YOUR SCHEDULED DE'PORTATION OR REMOVAL HEARING.
THI'S . DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH 'SECTION: 2428-(c).:(3) OF THE IMMIGRATIONi AND NAT;rONALITY ACT, a. u.s .c.
SECTION. 1521:3 (c-)_ (3)._.IN DEPORTATION PROCEEtINGS' OR $ECTION 240 (c) (6) ,
8 U. S ,:C. S_ECTI
ON 1229a (c)- (6} IN REMOVAL PROCEEDING'S. IF YOU _-FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE _FILED WITH THIS: COURT:
.

Q.

IMMIGRATION. COURT
1 .FEDERAL DRlVE, SUITE 18.50
FORT SN.ELLIN_G, MN ..55111

OTHER:.-

--------------------------------:.-

f?_/

c6URTCLERK
IMMIGRATION COURT
CC: OFFICE OF.THE PRINCIPAL LEGAL ADVISOR
l F-EDE:RAL -DR., .SUITE 1800
FORT SN:ELLIG, MN,. 55111

. FF

Immigrant & Refugee Appellate Center, LLC | www.irac.net

, Robichaud, Anders:on &. Al'cntara,

;p. A.
.
'
'Anderson;, Jl! i .themas' R.
160l Hennepin Avertue,'.. suit: 200:
Minne.apo+is, MN 55403 .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BISHOP HENRY WHIPPLE FEDERAL BUILDING
1 FEDERAL DRIVE, SUITE 1850
FORT SNELLING, MN 55111

NGO,HUY

CASE NO: 042 489 147

RESPONDENT
ORDER OF THE IMMIGRATION JUDGE
At a master calendar hearing on November 19, 2014, the Respondent was ordered by the Immigration Cou8rt to
submit a fee receipt for the filing of his E0IR-42A application for cancellation ofremoval. While the Respondent did
tender the application with documents he failed to file proof of the payment of the filing fee. Without such proof his
application is not properly fiJed. 8 CFR 1003 .24( c). Respondent was advised through his counsel that failure to submit the
filing fee receipt would result in his application being deemed abandoned.
In a motion to change venue to this Court, Exhibit 3, the Respondent admitted and conceded the factual allegations
and the charge contained in his Notice to Appear. He is therefore subject to removal as charged. 8 CFR 1240.1 O(c). Since
the Respondent was charged with being an arriving alien he is statutorily ineligible for voluntary departure. Section
240B(a)(4) of the Act. Accordingly, the following order is hereby entered: The Respondent is ordered removed from
the United States to Vietnam.

SUSAN E. CASTRO
Immigration Judge

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAII/{'MJ\
PERSON
SERVICE (P)
TO: [ ] A/,fN
C/0 CUSTODFFICER K.L.IIEN'S ATT/REP L(J__,INS
BY: COURTSTAFF-----.l......______
DATE: c:'

VJALIEN

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATTER OF: