Professional Documents
Culture Documents
Department of Justice
A 099-395-768
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Don.rtL
t1/lA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Wendtland, Linda S.
Userteam: Docket
Deluca,Crescenzo
Law Offices Crescenzo Deluca
81 Wolcott Hill Road
Wethersfield,CT 06109
d"
Date:
FEB 1 9 2018
APPEAL
ON BEHALF OF RESPONDENT: Crescenzo DeLuca, Esquire
CHARGE:
Notice: Sec.
237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law
IN REMOVAL PROCEEDINGS
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2
Cite as: Zulfiqar Ali Mirza, A099 395 768 (BIA Feb. 19, 2016)
Upon our de novo review, we conclude that the respondent has shown that his application for
adjustment of status should be granted in the exercise of discretion. As the Immigration Judge
noted, the respondent has considerable equities, including a United States citizen spouse to
whom he has been married since 2007, a United States citizen step-child, residence in the United
States since 2000, a history of employment, and the absence of any criminal record (I.J. at 2).
The only adverse factor in this case is the respondent's alleged involvement with a fraudulent
visa petition. Such involvement could constitute a significant adverse factor. However, under
the circumstances of this case, including the respondent's un-contradicted testimony that he was
unaware of the fraudulent nature of the visa petition, this factor warrants little weight. We
conclude that the equities weighing in favor of a favorable exercise of discretion outweigh the
lone adverse factor. We therefore conclude that a favorable exercise of discretion is warranted
and thus that the respondent's adjustment of status application should be granted. See
Matter ofArai, 13 l&N Dec. 494 (BIA 1970). We will remand the record for the required
background and security checks.
(f'\
J'I.
..
ON BEHALF OF RESPONDENT
Crescenzo De Luca
81 Wolcott Hill Road
Wethersfield, CT 06109
)
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In Removal Proceedings
ON BEHALF OF DHS
Sarosh Wahla
Office of the Chief Counsel
450 Main Street, Room 483
Hartford, CT 06103-3060
On December 10, 2010, the Court denied the respondent's application for adjustment of
status on the ground that he was inadmissible under section 212(a)(6)(C) of the Act, along with
his application for a 212(i) waiver and ordered the respondent's removal to Pakistan. On July 9,
2013, the BIA remanded after finding the respondent no inadmissible under section 212(a)(6)(C)
of the Act and requested the Court to determine whether the respondent merits relief in the
exercise of discretion. On April 9, 2014, the Court held a hearing. The respondent submitted
documents which were marked as exhibit R-1. They consist of documents relating to the bona
tides of the respondent's marriage to the petitioner as well as letters in support of his application
which are mostly from customers of his store. The respondent was arrested in February of 2011
for breach of peace and criminal mischief. The record reflects that these charges were dismissed.
The respondent's wife suffered a miscarriage in November of 2013. She works as a registered
nurse at a children's psychiatric hospital. DHS provided a press release concerning the
conviction of the Muhammad Khalil, who filed hundreds of fraudulent religious worker
petitions, including one filed on the respondent's behalf.
(
The Court in its previous decision never considered whether fraud in applying for a
religious worker petition was a "benefit under the Act." It assumed that an 1-360 religious
worker petition was a benefit under the Act.
The approval of a visa petition vests no rights for the beneficiary of a petition and is a
preliminary step in the adjustment of status application process. See Matter of Ho, 19 I&N Dec.
582 (BIA 1988). Like the respondent, many individuals seek adjustment of status or an
immigrant visa through an immediate relative petition as spouse of a US citizen. Would an
alien's involvement in a marriage fraud scheme which was uncovered by CIS resulting in the
denial of the 1-130 petition subject him or her to the 2 l 2(a)(6)(C) ground of inadmissibility?
Under the reasoning of the BIA's decision, it appears it would not since the alien could not use
that 1-130 petition to apply for adjustment of status.
The Court feels that this issue is an important one which impacts a significant number of
cases and warrants a precedent decision.
The Court will also consider whether this application for adjustment of status should be
granted in the exercise of discretion. The only adverse factor is the Court's finding that the
respondent was involved in a fraudulent religious worker petition and did not find respondent's
claim he was unaware of the fraud to be credible. The individual who filed the petition was
convicted of submitting hundreds of false religious worker petitions. The respondent received
the job offer the day after he arrived in the United States in P-3 status and 1-360 filed on the
respondent's behalf was submitted less than a month after his arrival. The 1-360 petition
contained documents which the respondent acknowledged were fraudulent. The Court
concluded that the respondent was not credible and had not persuaded the Court that he was
unaware of the fraud.
The respondent has considerable equities. He has been in the United States since August
of 2000. He married his US citizen spouse in 2007 and has a US citizen step child. The
respondent works at a convenience store owned by his brother. He has no criminal record.
In balancing the respondent's equities against the adverse factors, the Court finds that the
adverse factors outweigh his equities and the Court will deny the respondent's application in the
exercise of discretion.
In researching this issue, no BIA or Circuit Court precedent decision could be found.
Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013) observed that neither the BIA nor the Second
Circuit had previously issued a precedent decision defining what constituted a purpose or benefit
under federal or state law. The Richmond case concerned a false claim to US citizenship ground
of inadmissibility, which contains slightly different language from section 212(a)(6)(C) of the
Act.
( .
ORDERS:
The respondent's application for adjustment of status is DENIED.
The respondent shall be removed to Pakistan.
Date
s7/J ,i
Mi a traus
Immigration Judge
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