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U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Lee5b11rg Pike, S11i1e 2000 Falls Church, Virginia 22041

Joshua E. Bardavid, Esq. Attorney At Record 351 Broadway, Third Fl. New York, NY 10013

OHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, 11th Floor New York, NY 10278

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ, RUBEN DARIO

A 090-661-830

Date of this notice: 8/14/2013

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

DorutL ct1/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Pauley, Roger Greer, Anne J. Cole, Patricia A.

yungc Userteam: Docket

Cite as: Ruben Dario Diaz, A090 661 830 (BIA Aug. 14, 2013)

Executive Office for Immigration Review Falls Church, Virginia 22041

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

File: A090 661 830-New York, NY In re: RUBEN DARIO DIAZ a.k.a. Bartolito Diaz-Diaz IN REMOVAL PROCEEDINGS APPEAL

Date:

AUG I 4 2013

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENT: Joshua E. Bardavid, Esquire CHARGE: Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled 212(a)(6)(C)(i), l&N Act [8 U.S.C. 1182(a)(6)(C)(i)] Fraud or willful misrepresentation of a material fact

Sec.

APPLICATION: Section 237(a)(l)(H) waiver; adjustment of status

The respondent, a native and citizen of the Dominican Republic, appeals the Immigration Judge's decision of December 6, 2010. The Immigration Judge found that the Department of Homeland Security ("DHS") established removability under sections 212(a)(6)(A)(i) and 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. l 182(a)(6)(A)(i) and 1182(a)(6)(C)(i). He further held that the respondent did not show eligibility for a waiver under section 237(a)(l)(H) of the Act, 8 U.S.C. 1227(a)(l )(H). The proceedings will be terminated. The respondent concedes that he first entered the United States without inspection at the border near Brownsville, Texas on April 20, 1986, telling immigration officials that his name was "Bartolito Diaz" (l.J. at 2; Tr. at 45; Exh. 3, Tab A; Respondent's Brief at 4). On April 21, 1986, the respondent was issued an Order to Show Cause in the name "Bartolito Diaz" with the A-number 028 345 714 (Exh. 2). The DHS submitted an application for asylum, signed by the respondent on April 22, 1986, in the name of "Bartolito Diaz" (Exh. 3, Tab B). On December 18, 1996, an Immigration Judge administratively closed the deportation proceedings against "Bartolito Diaz" (Exh. 3, Tabs C, D). The DHS submitted a fingerprint analysis, confirming that the respondent and "Bartolito Diaz" are in fact the same person (Exh. 4 ). During the pendency of the deportation proceedings against "Bartolito Diaz," the respondent obtained lawful permanent residence as Ruben Diaz. In this regard, the respondent presented a lawful permanent resident card issued on March 9, 1990, bearing the name "Ruben Diaz" (l.J. at 2; Exh. 6, Tab A at 16). At the hearing on September 13, 2010, the respondent could not remember how he obtained this card (l.J. at 2; Tr. at 51-53). The respondent's counsel asserts that the respondent was granted adjustment of status as a Special Agricultural Worker (l.J. at 2; Respondent's Brief at 4). See former section 210A of the Act, 8 U.S.C. 1161.
Cite as: Ruben Dario Diaz, A090 661 830 (BIA Aug. 14, 2013)

A090 661 830

Sometime after the respondent received status as a lawful permanent resident, he filed an application for naturalization with United States Citizenship and Immigration Services ("USCIS"). Although the application itself is not in the record, the OHS submitted the denial issued by the District Director on November 19, 2008 (Exh. 3, Tab C). While acknowledging that the respondent received a permanent resident card, the District Director stated that there are no documents on record showing how and why he was granted status as a lawful permanent resident (Exh. 3, Tab C). The District Director further stated that during a naturalization interview on August 2, 2007, the respondent testified that he had never before used any names besides Ruben Diaz (Exh. 3, Tab C). A subsequent USCIS investigation revealed the respondent's April 20, 1986, entry into the United States without inspection, using the name "Bartolito Diaz" (Exh. 3, Tab C). The District Director thus concluded that the respondent willfully gave false statements under oath during his August 2, 2007, interview to obtain immigration benefits (Exh. 3, Tab C). As a result, the District Director concluded that the respondent did not establish his true identity or the good moral character required to naturalize as a United States citizen (Exh. 3, Tab C). The denial of the respondent's application for naturalization led to the commencement of the instant removal proceedings with the service of a Notice to Appear on January 29, 2009 (Exh. 1). The Immigration Judge held that the OHS had proven removability as charged (1.J. at 1). See 8 C.F.R. 1240.8(a) (the OHS bears the burden of proving removability by clear and convincing evidence). He further found that the respondent did not establish that he "was otherwise admissible to the United States" pursuant to section 237(a)(l)(H) of the Act when he came to the United States using the name "Bartolito Diaz" or when he adjusted status as Ruben Diaz on March 9, 1990 (l.J. at 2-3). See 8 C.F.R. 1240.8(d) (the respondent bears the burden of proving eligibility for relief from removal). In addition, the Immigration Judge concluded that the respondent does not warrant a favorable exercise of discretion due to his use of a false name and denial of having done so (I.J. at 3). Therefore, he denied the respondent's application for a section 237(a)(l)(H) waiver. On appeal, the respondent argues that he is eligible for a waiver pursuant to section 237(a)(l )(H) of the Act (Respondent's Brief at 15-25). To receive such a waiver, an alien must have been admitted to the United States. See section 237(a)(l)(H) of the Act (stating that the waiver is available for "[t]he provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i)"); Matter of Fu, 23 I&N Dec. 985, 988 (BIA 2006) (holding that section 237(a)(l)(H) authorizes a waiver of removability under section 237(a)(l )(A) based on a charge of inadmissibility under section 212(a)(7)(A)(i)(I) of the Act). We thus view the respondent as implicitly challenging the holding that the DHS has proven removability under sections 212(a)(6)(A)(i) and 212(a)(6)(C)(i) of the Act, which would be appropriate charges in the case of an alien who has not been admitted to the United States. We review this legal question de novo. See 8 C.F.R. 1003.l(d)(3)(ii). As discussed above, the respondent presented evidence of lawful admission in the form of a lawful permanent resident card issued to Ruben Diaz on March 9, 1990 (Exh. 6, Tab A at 16). In the denial of the respondent's application for naturalization, the District Director acknowledged the respondent's receipt of this permanent resident card (Exh. 3, Tab C). Although the District Director found no documents establishing how and why the respondent was granted status, she
2

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Ruben Dario Diaz, A090 661 830 (BIA Aug. 14, 2013)

A090 661 830

did not assert that the permanent resident card was fraudulent (Exh. 3, Tab C). The DHS did not submit a brief in opposition to the respondent's appeal, but provided relevant argument in a swnmation filed with the Immigration Judge after the hearing. Like the District Director, the DHS did not dispute that the respondent received a lawful permanent resident card on March 9, 1990, or claim that his card is fraudulent. The DHS argued that the respondent would have been ineligible for adjustment of status, but cited no supporting legal authority. Absent a claim of fraud by the DHS or the District Director, we accept the lawful permanent resident card presented by the respondent as evidence of his admission to the United States on March 9, 1990. See Matter of V-X-, 26 l&N Dec. 147, 151 (BIA 2013). The DHS has identified no reason not to accept the resident card at face value. Therefore, we conclude that the respondent has shown by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. See section 240(c)(2)(B) of the Act, 8 U.S.C. 1229a(c)(2)(B); see also Matter ofRivens, 25 I&N Dec. 623, 625 (BIA 2011). We thus reverse the holding that the DHS has proven removability under sections 212(a)(6)(A)(i) and 212(a)(6)(C)(i) of the Act by clear and convincing evidence. See 8 C.F.R. 1240.S(a). As a result, termination of these proceedings is appropriate and the respondent's application for a section 237(a)(l)(H) waiver is moot. Accordingly, the following order is entered.
ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, and the proceedings are terminated.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Ruben Dario Diaz, A090 661 830 (BIA Aug. 14, 2013)