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U.S.

Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - HAR


P. 0. Box 230217
Hartford, CT 06123-0217

Name: MIRZA,ZULFIQAR ALI

A 099-395-768

Date of this notice: 2/19/2016

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

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Zulfiqar Ali Mirza, A099 395 768 (BIA Feb. 19, 2016)

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

Deluca,Crescenzo
Law Offices Crescenzo Deluca
81 Wolcott Hill Road
Wethersfield,CT 06109

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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File: A099 395 768 -Hartford, CT

Date:

FEB 1 9 2018

In re: ZULFIQAR ALI MIRZA

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

APPLICATION: Adjustment of status


The respondent, a native and citizen of Pakistan, appeals from the Immigration Judge's
June 5, 2014, decision denying his application for adjustment of status. Section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. 1255(a). The Department of Homeland Security
has not filed a brief. The appeal will be sustained.
We review for clear error the findings of fact, 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 parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
Having concluded that the respondent was not inadmissible under section 212(a)(6)(C)(i) of
the Act, we previously remanded the record for the Immigration Judge to determine whether the
respondent is otherwise eligible for adjustment of status, including whether the respondent merits
relief as a matter of discretion.
We will reverse the Immigration Judge's denial of the respondent's application for
adjustment of status. There is no dispute that the respondent is statutorily eligible for adjustment
of status. The Immigration Judge determined that a favorable exercise of discretion was not
warranted because the respondent was involved in a fraudulent religious worker petition and did
not find the respondent's claim that he was unaware of the fraud to be credible.
The Immigration Judge's credibility determination is not supported by the record. See
section 240(c)(4)(C) of the Act; 8 U.S.C. 1229a(c)(4)(C). The Immigration Judge did not
credit the respondent's testimony that he was unaware of the fraud because of the timing of the
job offer (I.J. at 2). He did not give any other basis for his conclusion, such as inconsistencies in
the respondent's testimony or between his testimony and other record evidence. The
Immigration Judge did not make any findings based on the respondent's demeanor. We
conclude that the Immigration Judge's decision does not include specific and cogent reasons for
Cite as: Zulfiqar Ali Mirza, A099 395 768 (BIA Feb. 19, 2016)

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

IN REMOVAL PROCEEDINGS

A.099 395 768


finding that the respondent did not provide credible testimony. See e.g., Kone v. Holder,
596 F.3d 141, 146 (2d Cir. 2010) (an adverse credibility finding must be based on specific,
cogent reasons).

ORDER: The appeal is sustained.


FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l(d)(6), the record is remanded to the
Immigration Judge for the purpose of allowing the Department of Homeland Security the
opportunity to complete or update identity, law enforcement, or security investigations or
examinations, and further proceedings, if necessary, and for the entry of an order as provided by
8 C.F.R. 1003.47(h).

(j

. FOR THE BOARD

2
Cite as: Zulfiqar Ali Mirza, A099 395 768 (BIA Feb. 19, 2016)

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

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.

..

UNITED STAi.l!:S DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
HARTFORD, CONNECTICUT

MIRZA, ZULFIQAR ALI


A 099 395 768
RESPONDENT

ON BEHALF OF RESPONDENT
Crescenzo De Luca
81 Wolcott Hill Road
Wethersfield, CT 06109

)
)
)
)
)

In Removal Proceedings

ON BEHALF OF DHS
Sarosh Wahla
Office of the Chief Counsel
450 Main Street, Room 483
Hartford, CT 06103-3060

DECISION OF THE IMMIGRATION JUDGE

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.

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

IN THE MATTER OF:

(
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.

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

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

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

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