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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

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Yacub, Ivan OHS/ICE Office of Chief Counsel - BAL
Yacub Law Office 31 Hopkins Plaza, Room 1600
12761 Darby Brook Ct., Ste. 102 Baltimore, MD 21201
Woodbridge, VA 22192

Name: G , M A 861

Date of this notice: 11/29/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: M-J-G-, AXXX XXX 861 (BIA Nov. 29, 2017)
U�S. D�partment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 861 - Baltimore, MD Date:


NOV 2 9 2017
In re: M J G

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Ivan Yacub, Esquire

ON BEHALF OF DHS: Kellie Santos-DeJesus


Assistant Chief Counsel

APPLICATION: Termination

The respondent timely appeals from the Immigration Judge's December 12, 2016, decision
denying the respondent's motion to terminate proceedings and finding the respondent removable
as charged under section 237(a)(l)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(l)(A), for being an alien who was inadmissible under section 212(a)(6)(C)(i) of the Act,
8 U.S.C. § 1182, for procuring adjustment of status by fraud or willfully misrepresenting a material
fact. The Department of Homeland Security ("DHS") argues that the Immigration Judge's
decision is correct and should be affirmed. The respondent argues that he is not removable as
charged and that proceedings should be terminated. The appeal will be sustained and proceedings
will be terminated.

The respondent, a native and citizen of Iran, was granted asylum in the United States on
January 25, 2001, based on his claim of past persecution (IJ at l; Exh. 1). The respondent's past
persecution claim was based upon his assertion that he was arrested and detained for 2 months in
Iran (U at 1-2; Exh. 2). After he was granted asylum, the respondent's status was adjusted to a
lawful permanent resident on or about May 24, 2006 (IJ at 1; Exh. 1). The respondent then filed
an application for naturalization (Form N-400) (Exh. 2, Tab A). During the respondent's
naturalization interview, the immigration officer noted discrepancies between the respondent's
asylum application and naturalization application and the case was referred to the fraud detection
and naturalization security unit (U at 5). The issue on appeal is whether those discrepancies and
the surrounding circumstances render the respondent removable as charged.

Willful misrepresentations require that the applicant knowingly make a material


misstatement for the purpose of obtaining an immigration benefit. Matter of G-G-, 7 l&N
Dec. 161, 164 (BIA 1956). The test for whether concealments or misrepresentations were
material is whether they had a natural tendency to shut off a line of inquiry that is relevant to the
alien's admissibility and that would predictably have disclosed other facts relevant to his eligibility
for a visa, other documentation, or admission to the United States. Matter ofD-R-, 27 l&N Dec.
105 (BIA 2017).

The issue in this case stems from the respondent's varying responses to whether he has been
arrested in the past. The respondent indicated on his asylum application (Form 1-589) that he was

Cite as: M-J-G-, AXXX XXX 861 (BIA Nov. 29, 2017)
' '

861

arrested in Iran, "kept ...for 2 months," interrogated several times, and "released ...after [he]
paid a big bribe" (U at 9; Exh.2, Tab D at 30). In comparison, the respondent initially indicated
on his application for naturaliz.ation (Form N-400), that he has never been arrested in the past
(Exh. 2, Tab A at 16). Once it was explained to the respondent that the question regarding past
arrests on the application for naturaliz.ation (Form N-400) was not limited to arrests occurring in
the United States, the respondent corrected his response to indicate that he has been arrested in the

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past (U at 4). Considering that the wording of the questions regarding past arrests in the two
applications vary, we agree with the respondent that the respondent's initial indication on his
naturalization application (Form N-400) that he had not been arrested is inconsequential.

Our inquiry, however, does not end there. During the respondent's naturaliz.ation interview,
the respondent described the circumstances of his past arrest in Iran. The respondent stated that it
was not a "real jail," that he was "never physically jailed," and that he was able to go home at the
end of every day (U at 4; Exh. 2, Tab A at 8). Those facts vary from the respondent's asylum
statement, which provides that he was "kept for 2 months," "interrogated," "treated very badly
during [his] detention," released, and that he then had to report to officials every month (Exh. 2,
TabD at 30).

The Immigration Judge concluded that at a minimum the respondent "exaggerated the facts
forming the basis of his request for asylum and the asylum examiner relied on those exaggerations
in determining the Respondent's eligibility for asylum relief' (U at 9; Exh.2, Tab Bat 12 (asylum
officer providing in the asylum assessment to grant asylum that the respondent "was arrested for
two months, enduring many interrogations. Again he was released by paying a large bribe ...."
and concluding that the "cumulative effect of the applicant's harm, his denial of his education, his
two arrests and detention and finally the confiscation of his business rises to the level of
persecution")). While it is possible that the respondent may have exaggerated those facts, the
exaggeration was not material. The asylum grant was based on the totality of evidence, which
included more than the respondent's detention. Indeed, the asylum officer considered that the
respondent had to endure interrogations, pay a large bribe, was denied an education, and that his
business was confiscated. Thus, even if the respondent exaggerated the circumstances of his
detention, the exaggeration is not material because the remaining facts were sufficient to support
a grant of asylum.

We have also considered that the respondent's asylum application was prepared by an
immigration attorney who pied guilty to conspiracy to commit immigration fraud (U at 9; Exh.2,
Tab H). However, there is no conclusive evidence establishing that the respondent's prior attorney
conspired to commit immigration fraud while filing the respondent's asylum application.

We have considered all of the arguments raised on appeal, and conclude that OHS did not meet
its burden of proof by clear, unequivocal and convincing evidence, that the respondent is
removable pursuant to section 237(a)(l)(A) of the Act. Accordingly, the Immigration Judge's
decision is vacated and the motion to terminate proceedings is granted.

2
Cite as: M-J-G-, AXXX XXX 861 (BIA Nov. 29, 2017)
'
861

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The Immigration Judge's decision dated December 12, 2016, is vacated
and removal proceedings terminated.

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Board Member Roger A. Pauley respectfully dissents without opinion.

Cite as: M-J-G-, AXXX XXX 861 (BIA Nov. 29, 2017)
/ "

i'

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OF� FOR IMMIGRATION REVIEW
UNITED STAT�S IMMIGRATION COURT
BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

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G ,M Case Al# 861

RESPONDENT

CHARGES: Section 237(a)( l )(A) of the Immigration and Nationality Act


("INA" or the "Act"), as amended, in that at the time of entry or of
adjustment of status, the respondent was within one or more of the
classes of aliens inadmissible by the law existing at such time, to
wit: alien immigrants who are not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document required by the
Act, or who are not in possession of a valid unexpired passport, or
other suitable travel document, or identity and nationality
document if such document is required by regulations issued by the
Attorney General pursuant to section 212(a)(7)(A)(i)(I); and

Section 237(a)(l)(A) of the Act, in that at the time of entry or of


adjustment of status, the respondent was within one or more of the
classes of aliens inadmissible by the law existing at such time, to
wit: aliens who seek to procure, or have sought to procure, or who
have procured a visa, other documentation, or admission into the
United States, or other benefit provided under the Act, by fraud or
by willfully misrepresenting a material fact, under section
212(a)(6)(C)(i) of the Act.

APPLICATION: Motion to Terminate Proceedings; Removability Decision.

APPEARANCES

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:


Ivan Yacub, Esq. Kellie Santos-DeJesus, Esq.
Yacub Law Offices, LLC Assistant Chief Counsel
12761 Darby Brook Court, Suite 102 31 Hopkins Plaza, Suite 1600
• Woodbridge, Virginia 22192 Baltimore, Maryland 21201
MEMORANDUM OF DECISION AND ORDER

I. Procedural History

The Respondent is a male native and citizen of Iran. On August 13, 2013, the

Department of Homeland Security ("DHS") placed the Respondent in removal proceedings

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through the issuance of a Notice to Appear ("NTA"}, which alleges that: (1) the Respondent is

not a citizen or national of the United States; (2) he is a native and citizen of Iran; (3) he was

admitted to the United States at Dulles, Virginia on or about June 19, 2000 as a nonimmigrant

visitor in classification B-2; (4) he was granted asylum in the United States on January 25, 2001,

based on his claims of past persecution in Iran and fear of future persecution if he were to return

to Iran; (5) his status was adjusted to that of a lawful permanent resident on or about May 24,

2006, pursuant to his grant of asylum; and (6) he procured his admission, visa, adjustment, or

other document or benefit by fraud or by willfully misrepresenting a material fact, to wit: he

misrepresented the circumstances of his alleged detention in Iran and fear of return to Iran in

order to support his claim to asylum. Exh. I. Based on the foregoing, the NTA charges the

Respondent with removability pursuant to INA§ 237(a)(l)(A}. Id

On July 2, 2014, the Respondent, through counsel, admitted factual allegations 1 through

5 contained in the NTA. He denied factual allegation 6 and the charges of removability. The

Respondent indicated that he would not be pursuing any application for relief, as the DHS had

not met its initial burden of demonstrating the Respondent's removability by clear and

convincing evidence. The DHS concedes that it has not rescinded the Respondent's asylum

status or his lawful permanent resident status.

Having reviewed the evidence of record and the applicable law, the Court's written

decision and order now follow.

II. Position of the Parties

DHS

The Respondent told the asylum officer that he was arrested and detained for two months

in Iran in 1998. Exh. 2, Tab Bat 12; Exh. 2, Tab D at 30. He claimed that he was released after

paying a large bribe and used his store to pay bond. See Exh. 2, Tab D at 30. The DHS argues

that, based on this information, the Respondent received an immigration benefit; specifically, he

..

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'

was granted asylum and later adjusted to lawful permanent resident status. However, the

Respondent later stated in his naturalization interview that he was not detained, thereby

suggesting that his asylum status was procured by fraud or willful misrepresentation.

Additionally, the Respondent's application was flagged by the USCIS "for possible fraud"

because it was prepared by an attorney who was convicted of immigration fraud in 2008. Exh. 2,

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Tab H at 46. Based on the foregoing, the OHS requested that the Court sustain the charges of

removability and order the Respondent deported to Iran.

Respondent

The Respondent argues that the OHS is attempting to engage in rescission proceedings,

but there is a five-year statute of limitations which precludes the agency from taking action in

this case. The Respondent also claims that, as a current lawful permanent resident, the OHS is

not permitted to conduct removal proceedings. Additionally, the Respondent notes that the OHS

was not able to identify the Respondent because Mrs. Trisha Hudson Dempsey, the sole witness,

could not see the Respondent, as she offered telephonic testimony with no video feed. Although

he concedes that there were inconsistencies between the Form N-400 and Form 1-589, the

Respondent notes that the questions in the applications are different and the OHS is not able to

demonstrate that the Respondent lied on the Form 1-589, rather than on the Form N-400.

Accordingly, the Respondent concludes that the OHS has not met its burden.

III. Evidence Presented

A. Documentary Evidence

• Exhibit 1, Notice to Appear, dated August 13, 2013


1
Exhibit 2, Tabbed A-H, DHS's Submission of Evidence, filed September 3, 2014

B. Testimonial Evidence

Trisha Hudson Dempsey, Immigration Officer

Trisha Hudson Dempsey ("Mrs. Dempsey") offered the following testimony:

Mrs. Dempsey knows the Respondent because she interviewed him in her official

capacity as an immigration officer. At the time of her testimony, she worked as a full-time

employee with the OHS on fraud detection and national security in Baltimore, Maryland. She

1 On February 6, 2015, the OHS submitted a Motion to Withdraw Evidence, stating that pages 47 to 56 of Tab Hare
"not relevant to the respondent's matter." DHS's Mot. to Withdraw at 2. The Court found that good cause had been
established, and granted the motion on February 6, 2015.

2
has been employed by the OHS for ten years, and has worked with the fraud detection and

national security unit since September 2012. Previously, she worked as an immigration service

officer for OHS, adjudicating adjustment and naturalization applications.

According to the witness, she completed a federal law enforcement training course in

May 2006 in Glynco, Georgia. In addition, she completed interview techniques trainings,

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including the Reid interview and interrogation training and the Wicklander and Zulawski

training. Describing the Reid interview training, Mrs. Dempsey stated that this program provides

instruction on interview techniques and how to detect fraud. She noted that the Wicklander and

Zulawski training is the same as the Reid training, although it is offered by a different provider.

The witness explained than a Form N-400 is an application for naturalization. She

confirmed that she conducted interviews for naturalization applications. The necessary protocol

for these interviews is called National Quality Procedures (''NQP"). It consists of a checklist for

adjudicators to implement in order to ensure that all interviewers check all parts of the

application and review all necessary eligibility requirements. Mrs. Dempsey followed this

protocol for all of her interviews according to her testimony.

On October 25, 2010, the witness interviewed the Respondent for his naturalization

application. She knows she conducted the interview because the first page of the Form N-400

includes her initials and the date under the "Remarks" section. According to Mrs. Dempsey, she

reviewed the application again recently because it was provided to her by OHS counsel. Mrs.

Dempsey affirmed that the interview was conducted in English. The Respondent did not request

an interpreter and he did not indicate that he did not understand any question at any time during

the interview. Additionally, Mrs. Dempsey did not have any difficulty understanding the

Respondent.

Mrs. Dempsey put red marks on the application during the course of the interview. She

explained that any changes to the application or any "different testimony" is traditionally marked

in red ink. A red check mark means the question was asked and the same answer that was

provided on the written application was also provided during the interview. The witness stated

that sentences written in red signify testimony provided by the applicant during the interview;

sentences in quotation marks indicate that the testimony was recorded verbatim.

The witness was referred to the eighth page of the Respondent's application, specifically

question 21 which asks whether the applicant has ever been in jail or in prison. Mrs. Dempsey

3
changed the Respondent's answer from "No" to "Yes" with red ink, and explained that the

Respondent answered that he had not been in jail or in prison prior to the interview. She could

not recall whether the Respondent or she noted that the answer was an error. Mrs. Dempsey

reviewed the Respondent's application for asylum, and therefore knew the Respondent claimed

that he had been arrested in his home country. She therefore asked the Respondent again

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whether he had ever been in jail or prison, and noted that this includes incarcerations in the

United States and in his home country. After receiving clarification on the question, the

Respondent amended his answer.

Mrs. Dempsey also was asked about question 16, asking whether the Respondent has

ever been arr ested. Mrs. Dempsey confirmed that there was a black mark in the "No" box, but

she changed the answer with red ink to "Yes" based on information the Respondent provided.

The answer was changed for the Respondent because his asylum application indicated that he

was detained in his home country. The witness confirmed that she wrote, in red ink, that it was a

"political arrest." She discussed the arrest with the Respondent prior to marking the application;

however, she does not remember if the Respondent indicated that it was a political arrest.

Although she could not recall the exact conversation, Mrs. Dempsey believes she suggested to

the Respondent that the arrest occurred in July 1998, as indicated in his asylum application, and

that the Respondent affirmed this date was correct.

The red markings also indicate that the detention lasted for two months, it was not a "real

jail," and the Respondent was questioned several times but was able to return home every day.

Additional markings under the circled number 29 note that the Respondent was "'never

physically jailed"' and was '"able to go home on a bond."' The witness stated that this

information came from follow-up questions with the applicant. Mrs Dempsey noted that the
.

quotation marks around the text indicate that these were verbatim statements from the

Respondent. The Respondent never told Mrs. Dempsey that he was continuously detained for

two months.

Mrs Dempsey confirmed that her signature of "Trisha Hudson" is included in Part 13 of
.

the application. She explained that it was her legal name at the time of the interview. Her name

changed due to marriage. In addition to her signature, the application contains the Respondent's

signature under Part 13. The Respondent signed the document on October 25, 2010 at the end of

the interview. Regarding the number "29" written in Part 13, Mrs. Dempsey explained that this

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number reflects the number of corrections made to the application during th.e interview. The

corrections were marked with circled numbers throughout the application.

On pages eight and nine, the initials "MG" and the date appear under various sections.

Mrs. Dempsey explained that these questions were not answered in the original application, and

so she asked the Respondent for the answers during the interview and had him initial and date

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the answers. She does not know why the Respondent left these questions blank prior to the

interview.

The Respondent was interviewed for an immigration benefit, specifically naturalization

or United States citizenship. Mrs. Dempsey does not remember if she said anything to the

Respondent after the interview. She does not remember where the Respondenfs case went after

the interview, nor does she remember the recommendations she made regarding the

Respondent's application.

Mrs. Dempsey acknowledged that the Respondent's signature under Part 11 does not

match the signature provided under Part 13 and Part 14. She explained that applicants are asked

to print their names if they do not have a legible signature.

It is the witness's testimony that she reviewed the Respondent's Form 1-589, Application

for Asylum and for Withholding of Removal. After her review, Mrs. Dempsey concluded that

there were discrepancies between his asylum application and naturalization application. She

believes that the Respondent's case was referred to the "fraud detection and national security"

("FONS") unit. The Respondent's application was probably referred to this unit to investigate

his travel and employment history, as listed on page 4 of his naturalization application.

On cross-examination, the witness affirmed that she cannot see the Respondent because

she appeared through telephonic testimony without a video feed. Mrs. Dempsey confirmed that

she is stationed locally.

When asked about the Controlled Application Resolution and Review Process

("CARRP"), Mrs. Dempsey testified that the program handles national security issues identified

during any immigration process. Religion is not among the criteria used to identify people who

should be placed in the CARRP. She has heard about non-Muslim applicants who have been

reviewed under the program, although she does not know the percentage.

The witness stated that she has never previously testified in federal district court or any

fraud case. Mrs. Dempsey did not communicate with the officer or the supervisor who

5
adjudicated the Respondent's asylum application. Additionally, she did not conduct any

independent investigation or interview witnesses regarding the Respondent's alleged

incarceration in Iran. She does not know the immigration status of the Respondent's father or

brother. When asked whether the Respondent's asylum attorney was convicted of fraud, Mrs.

Dempsey stated that she could not remember. Mrs. Dempsey was provided with the name of the

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attorney, and was able to recall that this attorney no longer practices law because she was

convicted of immigration fraud. She does not know if the Respondent appeared in the list of

names and A numbers impacted by this fraud case.

It is Mrs . Dempsey's testimony that the Form I-589 and the Form N-400 were

inconsistent regarding the Respondent's arrest. When asked how she knows which statement is

true, Mrs. Dempsey stated that she knows his statements during her interview are true because he

testified after being placed under oath. She does not know if the Respondent was placed under

oath for the asylum application. Mrs. Dempsey has reviewed fraudulent asylum applications and

has spoken to asylum officers in the past. However, she does not know if applicants are placed

under oath during asylum interviews.

Regarding question 21 on the naturalization application, Mrs. Dempsey noted that the

question does not reference jail or imprisonment outside of the United States. Respondent's

counsel then read aloud question 4 of the Form I-589. The witness testified that contrary to

questions 16 and 21 of the Form N-400, the asylum application question specifically refers to

imprisonment inside and outside of the United States. Mrs Dempsey stated that she "skim[s]
.

through" the Form 1-589 prior to the interview, but she does not remember what exactly was

reviewed in this particular case. The witness then conceded that she corrected the Respondent's

naturalization application with red pen because she spotted the inconsistency regarding the

incarceration between the Form I-589 and Form N-400. The witness does not know what

happened after the application was referred to the FONS unit for further review.

On redirect examination, Mrs. Dempsey stated that she was not a member of FONS in

2010. She explained that the unit keeps the case until the investigation is done, and then returns

the case for adjudication. The Respondent's case never came back to her.

Regarding the videotaping technology, Mrs. Dempsey stated that it became mandated to

videotape all naturalization interviews at some point in the last three years. Videotaping was not

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nationally mandated in 2010. Mrs. Dempsey did not videotape her interviews in 2010, nor was

she ;equired to videotape them at that time.

It is Mrs. Dempsey's testimony that she is not required to talk to the officer or the

supervisor involved in an asylum application. She did not conduct an independent investigation

regarding the Respondent's asylum application because she was not allowed and it was not part

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of her position. When asked whether she would reach out to an applicant regarding his asylum

application, she stated that she would not because "it's not something than an adjudicator would

do." She did not follow up on this case, but she acknowledged that there is no regulation

precluding her from discussing the case within the agency. Mrs. Dempsey affirmed that she was

precluded from talking to the Respondent's father and brother, as well as the Iranian Embassy

and any other actor outside of the OHS. She testified that it would have violated the

confidentiality of his application to do so. Mrs. Dempsey knows she is banned from talking to

the family members of an applicant because it was part of her training.

The FONS unit makes the final determination of fraud; the witness simply referred the

application. She did not speak to individuals in the unit regarding the case. She does not know

how this case was referred for removal proceedings. The file did not return to her and she does

not know who issued the NTA.

It is not normally part of the witness's job to testify in proceedings or federal court. She

added that she was CARRP-trained in 2010, but her dealings with the Respondent did not

involve this training, as it was a naturalization interview.

IV. Statement of Law


A. Rescission of Adjustment of Status
The USCIS may seek rescission within five years after the status of an individual is

adjusted under section 245 or 249 of the Act if it appears that the person was ineligible for

adjustment. INA § 246(a); 8 C.F.R. § 1246. The Act does not require the individual's status to
be rescinded "prior to commencement of procedures to remove the alien." INA § 246(a); see
also Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Matter of D-R-, 25 l&N Dec. 445, 462-63

(BIA 2011).

Additionally, the Fourth Circuit has previously held that removal proceedings may be

commenced at any time beyond the five-year statute of limitations for rescission proceedings.

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See Asika, 362 F .3d at 267 (noting that the five-year statutory limit on rescission does not

prohibit removal proceedings beyond this period in cases where lawful permanent resident status

was obtained in error); see also Kim v. Holder, 560 F.3d 833, 836-37 (8th Cir. 2009) (concluding

that Congress intended the five-year statute of limitations to apply to rescission proceedings

only); Adams v. Holder, 692 F.3d 91, 96 (2d Cir. 2012); Matter of Belenzo, 17 I&N Dec. 374

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(A.G. 1981). This conclusion is based, in part, on the greater procedural protections available to

aliens charged with deportability compared to the "'somewhat informal process"' of rescission.

Asika, 362 F.3d at 271 (quoting Matter ofS-, 9 I&N Dec. 548, 555 n. 8 (A.G. 1962)).

B. Removability Pursuant to INA § 237

Any alien in and admitted to the United States is removable if he is within one or more of

the enumerated classes of deportable aliens. Under INA§ 237(a)(l)(A), an alien is deportable if

he, at the time of adjustment of status, was within one or more of the classes of aliens

inadmissible by the law existing at that time.

Relevant to this case, section 212(a)(7)(A)(i)(I) of the Act states that an immigrant is

inadmissible if, at the time of application for admission, he is not in possession of a valid

unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry

document required by the Act, and a valid unexpired passport, or other suitable travel document,

or document of identity and nationality if such document is required under the regulations. Also,

section 212(a)(6)(C)(i) of the Act provides that any alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a

visa, other documentation, or admission into the United States or other benefit provided under

this Act is inadmissible.

V. Findings of the Court

The Court has considered the documentary evidence and the testimony presented, as well

as the arguments of counsel. For the reasons stated below, the Court finds that the DHS has met

its burden of proving by clear, unequivocal, and convincing evidence that the Respondent is

removable as charged. As the Respondent has presented no applications for relief, he will be

ordered removed to Iran.

The DHS charged the Respondent with two grounds of removability under INA §

237(a)(l)(A), as failing to have the necessary documents required under section

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212(a)(7)(A)(i)(I) of the Act and for procuring an immigration benefit by fraud or by willfully

misrepresenting a material fact under section 212(a)(6)(C)(i) of the Act. To meet its burden, the

OHS submitted the Respondent's Form N-400 and presented the testimony of Mrs. Dempsey, the

immigration officer who conducted the Respondent's naturalization interview. Mrs. Dempsey

testified that she detected various inconsistencies between the Respondent's Form N-400 and

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Form I-589. In particular, she noted that the Respondent conceded he was not subjected to a

two-month detention in Iran; rather, he was "never physically jailed" and was "able to go home

on a bond." Exh. 2, Tab A at 8. The Respondent also answered that he had never been arrested,

cited, or detained by any law enforcement officer and that he had never been in jail or prison,

although he changed both of these answers during the naturalization interview. See id These

answers directly conflict with the information provided in the Respondent's Form I-589 and the

supporting affidavit, in which the Respondent stated that he was "interrogated and imprisoned"

in Iran. Exh. 2, Tab C at 19; Exh. 2, Tab D at 30 (claiming that the Respondent was detained for

two months and interrogated during this time). At a minimum, therefore, the Respondent

exaggerated the facts forming the basis of his request for asylum and the asylum examiner relied

on those exaggerations in determining the Respondent's eligibility for asylum relief.

In addition to presenting evidence regarding this key inconsistency in the Respondent's

applications for asylum and naturalization, the OHS also submitted the Form N-6508, which

shows that the Respondent's naturalization application was referred to the FON S unit for further

review. Exh. 2, Tab G at 45. Additionally, the OHS submitted a memorandum from U. S.

Immigration and Customs Enforcement, which indicates that the Respondent's asylum

application was prepared by an immigration attorney who pled guilty to conspiracy to commit

immigration fraud in 2008. Exh. 2, Tab Hat 46. Viewed cumulatively, the inconsistencies, as

well as the investigation and suspicion of fraud, in both applications appear to demonstrate that

the Respondent procured an immigration benefit by engaging in fraud in relation to his asylum

application. Accordingly, the OHS has demonstrated, by clear and convincing evidence, that the

Respondent is removable pursuant to INA§ 237(a)(l)(A).

At a hearing on July 11, 2016, the Respondent argued that (1) the OHS did not bring

rescission proceedings in a timely manner and therefore is precluded from pursuing removal

proceedings; and (2) the OHS did not meet its burden of proof of demonstrating, by clear and

convincing evidence, the Respondent's removability under INA § 237(a)(l)(A). In his brief

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submitted on October 11, 2016, however, the Respondent "readily concede[d] that the charge

under INA § 237 is proper," thereby rendering his latter argument moot. Mot. to Accept

Untimely Brief at 2. In support of his remaining argument, he claimed that the Third Circuit

decision, Garcia v. Att '.Y Gen. of U.S., 553 F.3d 724 (3d Cir. 2009), should govern this case. In
Garcia, the Third Circuit concluded that the five-year statute of limitations for rescission

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proceedings also applied to removal proceedings. Id at 728-29. However, as acknowledged in

the Third Circuit decision, the Fourth Circuit has adopted an alternative approach to this issue,

concluding that the five-year statute of limitations applies to rescission proceedings only. Asika,
362 F.3d at 267; see also Garcia, 553 F.3d at 728 ("We are aware of Asika v. Ashcroft, 362 F.3d
264, 267 (4th Cir. 2004), a post-amendment case that disagreed with Bamidele and deferred to
the DHS's interpretation of§ 246(a). Respectfully, we cannot agree with our esteemed colleagues

on the deference issue."). Accordingly, the relevant case law in this jurisdiction indicates that

the Respondent was properly placed in removal proceedings, even though the NTA was issued

more than five years after he adjusted his status.

VI. Conclusion

Having reviewed all of the evidence of record, the Court finds that the OHS has shown

by clear, unequivocal, and convincing evidence that the Respondent is removable as charged.

The Respondent's Motion to Terminate Proceedings shall therefore be denied. As no application

for relief has been presented for consideration, the Respondent is ordered removed to Iran.

• •

l�.t.h4. t:ad /A•z--a,.


Date PhiiiPiiif
� r= ams
United States Immigration Judge
Baltimore, Maryland

10
..
,
I

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

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G ,M Case A# 861

RESPONDENT

CHARGES: Section 237(a)( l )(A) of the Immigration and Nationality Act


("INA" or the "Act"), as amended, in that at the time of entry or of
adjustment of status, the respondent was within one or more of the
classes of aliens inadmissible by the law existing at such time, to
wit: alien immigrants who are not in possession of a valid
unexpired . immigrant visa, reentry permit, border crossing
identification card, or other valid entry document required by the
Act, or who are not in possession of a valid unexpired passport, or
other suitable travel document, or identity and nationality
document if such document is required by regulations issued by the
Attorney General pursuant to section 212(a)(7)(A)(i)(I); and

Section 237(a)( l )(A) of the Act, in that at the time of entry or of


adjustment of status, the respondent was within one or more of the
classes of aliens inadmissible by the law existing at such time, to
wit: aliens who seek to procure, or have sought to procure, or who
have procured a visa, other documentation, or admission into the
United States, or other benefit provided under the Act, by fraud or
by willfully misrepresenting a material fact, under section
212(a)(6)(C)(i) of the Act.

APPLICATION: Motion to Terminate Proceedings; Removability Decision.

APPEARANCES

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:


Ivan Yacub, Esq. Kellie Santos-DeJesus, Esq.
Yacub Law Offices, LLC Assistant Chief Counsel
12761 Darby Brook Court, Suite 102 31 Hopkins Plaza, Suite 1600
Woodbridge, Virginia 22192 Baltimore, Maryland 21201
(
'
i

ORDER

It is hereby ordered that:

I. the Respondent's Motion to Terminate Proceedings be DENIED;

II. the charges ofremovability pursuant to INA§ 237(a)(l)(A) be SUSTAINED;

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and

III. the Respondent be removed to IRAN as charged.

��.,;.dd.;o
WH�am
Phillip T. s
United States Immigration Judge
Baltimore, Maryland