Jean Andre Aine, A091 359 621 (BIA May 28, 2015)

8/21/2019 Jean Andre Aine, A091 359 621 (BIA May 28, 2015)

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Muennich, Ryan A.Muennich & Bussard LLP30 Vesey St, Floor 16New York, NY 10007

Name: AINE, JAN ANDRE

U.S Department of Justice

Executive Oc r Immigration Rview

Board of Immigration AppealsOce of the Clerk

5107 Lee.vbg Pik, St 2000Fals Church, Vgn 0530

OHS/ICE ffice of Chief Counsel - NYD201 Varick, Rm 1130New York, NY 10014

A 091-359-621

Date of this notice 5/28/2015

Enclosed is a copy of the Board's decision and order in the abov-rrenced cas.

ncsure

Panel Members:

Pauley RogerWendtland, Linda S.Maphrus Garry D.

Sincerely,

Do caDonna Carr

Chie Clrk

Useteam Docket

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015)


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U.S Department of JusiceExecutive Oce (or Immation Reiew

Decison of the Boad o Imiation Appeal

Fas Church, Vgna 20530

File: A091 359 621 -New York, NY

In re JEAN ANDRE AN a.k.a ean Aine

REMOVAL PROCEEDIGS

APPEAL

Date:

ON BEHALF OF RESPONDT Rya Muenich Esquire

ON BEHALF OF HS:

CRE:

Scott SwanbergAssistat Chief Counsel

"MAY 18205

Notice: Sec. 212(a)(6)()(i), & N Act [8 U.SC. § l 182(a)(6)()(i)] Present without being admited or paroled

Sec 212(a)(2)()(i)(I), & N Act [8 US.C § 1182(a)(2)(A)(i)() Crime involving moral turpitude

APPLICAION: eination

he respondent is a native and citizen of Haiti. he Depatment of Homelad Securty("HS) appeals a March 22, 2013, decision in which an Immigration udge teinated theseproceedings he appeal will be sustained the proceedings wil be reinstated, and the record willbe remaded.

he respondent initiay entered the nited States without inspection (J at 1; 1/29/13 r at1516 Exh. 1) 1 On uly 27, 1988, he was granted temporary residence pursuant to the anestyprovisions of section 245A(a) of the mmigration ad Nationality Act 8 U.SC § 1255a(a)(I. at Exh. 1).

2 The respondent did not le an Application to Adjust Status om emporaryto Peaent Resident (Fo 698) within 43 months of his adjstment to tempora residentstatus as required to obtain permanent residence. See section 245(b)()(A) of the Act. ather

I As the record contains individa transcriptios of separate removal proceedings initiatedaainst the resndent in Pesynia ad ew r e have specied the date e relevathearing hen citing to the anscript

2 he mmigration udge und that the respondent received temporary status on March 7 198(.J at 1). Based on the respondent's admission to the allegation in the Notice to Appear statingthat he was granted such staus n uy 27 1988 e concude that the Imiratin udesnding is ceary erroneous /1 r at 1 Exh ) ee 8 R. § (d))i).



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I •

A01 3521

he led a Fo -698 years later on April 7, 2000. On November 8, 2002, the rerImmiation and Naturalition Serice dened the respondents application pursuant to section 245A(b)()(A) of the Act (I.J. at 1; 1/2/13 Tr. at 16; Ex. 1). The respondent also led another For I68 on Jauay , 2006, whch was denied on the same basis on July 27, 2006 ( J.at 1).

On March 13, 200, the respondent was convicted of Ban Fraud in violation of 18 USC.§ 1344(a) (1/2/13 Tr. at 16; Exh 1). Thereaer, on May 1, 200, the DHS issued a Notice toAppear ("NTA), initiating remova proceedings in te York, Pensylvania Immigation Cout(IJ at 2). Although tis NTA is not associated with the record, it is undisputed that te DHScharged the respondent with reovability under sections 212(a)(6)(A)(i) (resent wthout beingadmitted or paroled), 212(a)(6)(D) (stowaway), ad 2 2(a)(2)(A)(i)(I) (convicted of a cimeinvolving oral tupitude) of the Act, 8 .SC. §§ 82(a)(6)(A)(i), 1 82(a)(6)(D) and1182(a)(2)(A)(i)(I) ( J at 2). Likewise, it is not disputed at the DHS subsequently addedcharges pursuant to sections 237(a)( )(A) (inadmissible at the tme of enty under sections 212(a)(7)(A)(i)(I) and 212(a)(7)(B)(i)(II) of the Act), 237(a)(2)(A)(iii) (convicted of anaggavated felony), and 237(a)()(B) (present in violation of law) of te Act, 8 U.SC.

§§ 1227(a)()(A), 1227(a)(2)(A)(iii), ad 1227(a)()(B) (I.J. at 2). See 8 CF.R. § 100330Duing a heaing on November 16, 200, te Immigration Judge indicated that the section 212 charges would be disissed (11/16/0 Tr.at 16-17). Te mmigation Judge agreed with therespondent's arguent that is grant of temporay resident staus was similar to a "admission,see section 101(a)(3)(A) of the Act, 8 U.S.C § 10(a)(13)(A), such that only the section 237 charges were proper (11/16/0 Tr. at 262). oreover, aer evaluating the convictionevidence submited by the DHS, the mmigration Judge stated that e would dismiss the chargesuder sections 237(a)(2)(A)(iii) and 237(a)()(A) of the Act (11/16/0 Tr. at 2224) He thersuggested that te DHS "start all over again ad indicated that te section 237(a)()(B) chargewas "probably ... coect[,] ultimately (11/16/0 Tr. at 34).

Aer the respondent was released on bond, venue was chaged to the New York, New orkImmigration Cout d a dierent Immigration Judge took over the case (I.J at 2) Duringa heaing on December 17, 2010, the respondent ined the Immigation Judge that hewas seeking adjustment of status, using a visa petition (Fo -130) led on his behaf byhis United States citizen son (IJ. at 2; 12/17/10 Tr at 4143). At the ensuing hearingon Noveber 18, 2011, the respondent stated that the Form 130 had been approved(11/18/11 Tr. at 46). The paties thus agreed to teinate te poceedings without prejudice sothe respondent could pusue adjustment of status bere United States Citizenship andImmiation Seices (IJ. at 2; 11/18/11 Tr at 4647).3

3 he respondent asses that the proceedings were teinated with preudice

(Respondents Bief at 1416) This is not suppoted by te transcript, which shows that theDHS aeed to teination so he respondent could seek a rm of relief o removal(11/18/11 Tr. at 46-47) Aong tese ines, the respondents counse stated o theImmigration Judge wo issued the decision under review that the prior termination was withoutpreudice so the respondent could pursue adustment of status (3/14/13 Tr. at 27). Therere, wend no clear eor in te Immigration Judges nding that the proceedings were terinatedwithout preudice (J. at 2) See 8 CFR.§ 1003.(d)(3)(i)

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A091 359 21

Subequently, the DHS initiated the intant proceeding by eving an NTA on December 4, 2012, and the Immigration Judge who iued the deciion under review took over the cae(Exh. 1). The OHS charged the repondent with removability under ection 212(a)()(A)(i) and 212(a)(2)(A)(i)(I) o the Act (I.J. at 23; Exh. ). The Immigration Judge deteined that theYork Immiation Judge had already dimied thee charge in a ll ruling, which the DHS didnot appeal (I.J. at 3). She th hed that the doctrine of re judicata collateral etoppel, and thelaw o the cae bar the DHS om again eeking to remove the repondent on the ame bai(I.J. at 3). Futheore, he agreed with the York Immigration Judge that the repondent houldhave been charged with removability under ection 237 o the Act becaue he was previouyanted tempor reidence under ection 245A(a) of the Act (I.J. at 3-4). For thee reason, theImmigation Judge teinated the proceeding (I. J. at 3-4).

n appeal, the OHS argue that the Immigration Judge eoneouly teinated theproceeding under the docne of re judicata, collateral etoppel, and the law of the case(I.J. at 3). Exerciing or de novo review authoity, we agree. See 8 C.F.R. § 1003. (d)(3)(ii)(the Boad review iue of aw, dicretion, and judgment de novo). The law of the case

docine only applie to iue that have actually been decided. See United States v. Hatter,532 U.S 557, 566 (2001). Simiay, r coateral etoppel to apply, "there must have been apior judent beween the patie that i uciently to be accorded concluive eect andthe ptie must have had a ll and ir oppotunity to litigate the iue in the pior uit.Matter of Fedorenk, 19 I&N Dec. 57, 61 (BIA 1984). Alo, re judicata provide that a nal judent on the mei wil ba a ubequent action between the ame patie over the amecaue o action. Channer v D 527 F.3d 275, 279 (2d Cir. 2008). Thee tandad were notmet here. Although the York Immiation Judge commented during a hearing that he woulddimi everal o the DHS' charge and the ection 237(a)( l )(B) chage w probably coect,he did not make removabili nding in an oral or witen deciion, as required under 8 C.F.R.§ 1240.12(a). Rather, bere the York Immiation Judge entered a al deciion, venue wa

chged to the New York Immigation Cout. Moreover, the Immigration Judge who took overthe cae en teinated the proceeding without prejudice. See Cooter Gel v HartmaCorp. 496 U.S. 384, 396 (1990) (tating that a dimial without prejudice i not an adjudicationon the meits).

We ther agree with the DHS' agument that the Immigration Judge eed in teinatingthe proceeding on the merit because the regulation explicitly provide that teination o arepondent' temporay reident tatu ret him to the unlawl tau held pior to the antof tempoy reidence (I.J. at 34). See 8 C.F.R. § 1003. (d)(3)(ii). The repondent'tempoay reident ta wa teinated automatically when he did not e r adjutment otatu om tempoa reident to peanent reident uing Fom -698 within 43 month o the

date he wa grted temporay reident tatu. 8 C.F.R. § 245a.2(u)( )(iv). The repondentaets that he i not ubject to chage o inadmiibiity under ection 212 o the Act becauehi ant o tempoa eiden atu wa an admiion and teination of hat a puruantto 8 C.F.R. § 245a.2(u)( 4), while reing him to unlawl "tatu, did not operate to nulliythe admiion (Repondent Bief at 1824) We concude that even if the repondentadjent to tempoay reident tatu contituted an admiion, termination of that tatuoperated to revoke the pior admiion baed on the plain anguage of 8 C.F.R. § 245a.2(u)(4).See US v ernndez-Ars 757 F3d 874, 881 9h Cir. 204). Fheore, the text of he

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A09359 62

regulation does not suppor a nding that the respondent retained the benets of his adjustmentto temporary residence despite termination of that status; if his admission" were to remain ineect, the respondent would not "return . to the unlawful status held prior to the adjusent."US. v Heandez-Arias, supra, at 88 (quoting 8 C.F.R. § 245a.2(u)(4)) (emphasis in theoriginal). 8 C.F.R. § 245a.2(u)(4) rther species that termination of status renders an

aien subject to deportation proceedings US v Hernandezrias supra at 881 -82. Tus8 C.F.R. § 245a2 describes a limited rm of status wi no lasting immiation benet."US v Hernandezrias, supra at 882 In this regard the regulation specically provides that[a]n alien whose status is adjusted to that of a lawl temporary resident under section 245A ofthe Act is not entitled o . . any ] benet or consideration accorded under the Act to alienslawlly admitted r peanent residence" 8 CF.R. § 245a.2(v); see aso US v Heandezrias, supra at 882. herere we reverse the olding that the DHS did not properly charge therespondent with removability under section 212 of the Act

For these reasons, we will sustain the DHS's appeal reinstate the proceedings and remandthe record r a new deteination of the respondents removability pursuant to section 22 of

the Act. he respondent should aso be eitted to apply r relief om removal if necessary.

Accordingly the llowing order is entered.

ORDER: The appeal is sustained, te proceedings are reinstated and the record is remandedr rther proceedings consistent with this opinion and the eny of a new decision

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Executive Oce r Imigraton Reiew

Fas Chuc, Viginia 20530

File: A01 35 621 New York Y

n re: JEAN ANRE AINE a.k. ean Aine

Decison of the Boad ommtion Appeal

aeMY 18205

CONCURG/DISSENTNG OPNION: Linda S. Wendd, oard Member

I concr in he majoriys decision ha the docies� s udicaa colae esoppe, dhe law of he case do no appy de o he lack of a su 1 ienly na decision by he YorkImmiaion Judge.

On he oher hand, I respecy dissen wih regd o he maoriy's conclsion ha he epen of Homed Secury ("HS) coecy chged he responden wih removabiiunder secion 212 of he mmiaon and Naionaliy Ac 8 U.S.C. § 1182. n deeg alien's eibiiy r cancelaion of removal under secion 240A(a)(2) of he Ac 8 U.S.C.§ 1229b(a)(2), he od has previosly held ha admission a epora residen consues"admi[ssion] in any stas Matter of Perez, 22 I& ec. 689, 692 (BIA 19). Fureore,an appic r emporary residence mus esabish admssibiiy, see secion 245A(a)(4) of heAc, 8 U.S.C. § 1255a(a)(4), d e Bod has acknowedged ha a hreshold iecion radmissibiiy is he sine qua non of admission. atter o VX, 26 & ec. 147, 151 n.3(A 2013). The S has cied no binding auhoriy providing h a subsuen inabii oads o peanen residence wod negae he prior admission as a emporary residen. Aonghese ines, I would conclude ha 8 C.F.R § 245a.2(u)(4) is disiguishe because i waspromugaed bere he Ilega Imion Rerm and mi esponsibiiy Ac of 196, ivision C of ub. L. o. 104-208, 110 Sa. 3009-546 (1996), repaced he previous deniionof he e "en wh a new denion of n "admission. See Mater of alenzuelaFel, 26 &N ec. 53, 55 (BIA 2012). Moreover, ha regulaion merey rerences a re ounaw "staus, and does no indicae ha he alien is sbec o the same deportabi/ orinadmissibli goun tha perained prior o his admission.

Addiionay, United States Hernndez-Ari, 757 F.3d 874, 88182 (9h Cir. 2014), is nobinding in this mater, which arises win he urisdiction of e Unied Saes Co of Appeasr he Second Circui. See Matter oRive 25 &N ec. 623, 62 (B 2011). I disaee wihhe Ninh Circuis conclusion ha once an admission has occed, i c be undone or"revokd on he basis of subsequen evens. Along hese lines, even admission obaned byad may ony be chg under secon 237 of he Ac, 8 U.S.C. § 1227 In oter words, in thatstion the Act acknowledges tha an admission did occur and has no been undone, ahoughis circumsances render he lien removable. e majoriy's conclusion ha an admissionnevertheess can be revoked in he presen (and, appeny, ony he presen) conex is no

Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015) (Wendtland, concurring and dissenting)


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A091359 621

persuasve Because e esponden's adjusmen o emporary resden staus pusuan o secon 245A(a) of the Ac consued an admsson, even oug s aer ure o compy w secon 245A(b)(l)() caused m o ose ega staus, I woud dsmss e DHSs appea and upod edeenaon ha secon 237 charges are required.

�Lnda S WenddBod Member

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Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015) (Wendtland, concurring and dissenting)


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UNTED STATS DEPr:MENT OF JUSTICEEXECUTVE OFCE FOR IMMGRATON REVIEW

UNTED STATES MMIGRATON COURTNW YORK NEW YORK

ie A091-359-621

n the Matte of

Mach 22 2013

JEAN ANDRE AINE

RESPONDENT

)))

)

IN REMOVAL PROCEEDINS

CHARGES Immigation and Nationaity Act Section 212{a){6){A){i), Immigationand Nationaity Act Section 212{a){2){A){i){).

APPCATONS Temnation of poceedng

ON BEHAL O RSPONDNT BRAN MUNICH

ON BEHALF OF DHS MEL MORENO

ORAL DCSON OF THE MMGRATION JUDGE

The espondent is a native and citizen of Haiti The espondent initiay

came to the United States and enteed iegay and the espondent was at one time a

tempoa esident of the United States such tempoa esidence having been ganted

on Mach 7 1989 The espondent subsequenty appied to adjust hs status to

pemanent esdent Apl 2000 whch was denied and the espondent appaenty

fied anothe appication on Januay 9 2006 f tempoay esidence which was dened

on Juy 27 2006


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he respondent was initialy placed in reova proceedings by issance ofa otice to Appear May 19 2009 charging him with reovability nder Section

212(a)(6)(A)(i) 212(a)(6)(D) as a stowaway and 212(a)(2)(A)(i)() as an individa whohad cotted a crie of mora tpitde. The Depaent of Hoeland Secrity prior to peadings being taken fed a fit -261 on October 26 2009 and a second 261 onoveber 13 2009 in which al charges nder 212 were withdrawn by the Depaentof Hoeland Secrity and the Depaent of Hoeand Security charged therespondent with several diferent charges under 237, 237(a)(1 )(A) based on

212(a)(7)(A)(ii) 237(a)(1)(A) based on 212(a)(7)(B)(i)()() 237(a)(2)(A)(iii) based on 101(a)(43)(M)(i) and 237(a)(2)(A)(ii) based on 101 (a)(43)(G) In the second 261 theyadded the charge of 237(a)(1 )(B) as an individa who had reained onger thanperitted

n proceedings before igration Jdge Water Dring in York therewas a f adjudication of the charges on Noveber 16 2009 n that hearing Judge

During disissed the charges nder 212(a)(6)(A)(i) 212(a)(6)(B) and 212(a)(2)(A)(i)(I)In addition he disissed the charges nder 237(a)(1)(A) based on 212(a)(7)(A)(ii) Hedisissed the charge under 237(a)(1)(A) based on 212(a)(7)(B)(i)()(I) He disissed the charge under 237(a)(2)(A)(iii) based on 101 (a)(43)(M)(i) and disissed the chargender 237(a)(2)(A)(iii) based on 101(a)(43)(G) He sustained the charge nder237(a)(1)(B) which appears in the second 261 in that case

he case was subsequenty transferred to New York since Mr Aine wasreeased on bond by Judge Dring and in proceedings befre Iigration Jdge Weisel on consent they were terinated without prejudice o the respondent to

prse an adstent appication based pon the petition of his adult US citizen sonSbseqenty the Depaent of Hoeand Secrity issued another otice to Appear

A091-359-62 2 March , 203


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dated November 7, 2012, marked as Exhibit 1 in the proceedings befre this Cou

charging the respondent with removabiity under 212(a)(6)(A)(i) and 212(a)(2)(A)(ii) of

the mmigration and Nationaity Act.

The aw of the case demands that those be dismissed They have aready

been dismissed by the Cou in a ful rung that was not appeaed n any way to the

Board of Immigration Appeas It is both aw of the case ! udicata and

colatera estopp. I believe al three probaby appy to this And I aso note that the

Depament itsef recognized the faw of the 212 charges befre it was even adudcated

befre Judge During But nonetheess, having istened to the ful adudication on

November 16 2009 by udge Durng of al those charges and wth a fu analysis for

each of why those charges woud not lie, the Cour notes that as saed when frst got

this case, the proper charge would appear to be 237(a)(1)(B) prevousy sustained by

Judge Durng and whch if the case was to be restored to calendar or restaed wth a

new NT A, it is the only proper charge that ies befre this Cour.

The OHS was obvousy a pay to the proceedings before Judge During believe that the ony fair assumption that coud be made with regard to this new NT A is

that there s forum shopping going on and that is not permied. Law of the case is aw

of the case t is as binding on the udge as it is on the paies and ceainly they are

the same paies so it ceainy woud be co ateral estopp and res udicata t

has aready been adudicated by the Cou And I fuy agree with the statements of

Judge During he notes that there is no question that the respondent's pror status as a

temporary resdent had hm resding n the United States under coor of aw That the

adjustment to tempora residence or the awarding of temporar residence, athough it

may not techncay serve as an entry t ceainy is an adudication of status and sees

as being an admission into a lawu status which s now expred unquestionably that the

A091-359-621 3 March 22, 2013

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respodent no oger is amenabe to proceedgs in the nature of 212 Ad the Cou

hereby adopts all of the reasoig o Judge Durlg as set foh his determations of

November 16 2009

There is a great dea more his decision o the 237 charges but those

are ot peding bere the Cou ceainly also cofr that fuly agree with hs

reasoning as to those 237 charges cluding the act that proper removablty can be

show uder 237(a)(1)(8) and that resodent should be amenable to the

proceedigs So agai, this is gog to be a termatio wthout preudice as to 237

proceedg but t s wth prejudice as to ay uher proceedngs under 2 2.

ORDER

hereore the Cou grats the motio to teate and ssues this

decsio today March 22, 20 3

sinature

A 0 9 1 - 3 5 9 - 6 2

Please the next page for electronic

NOEL A FERRISmmgratio Judge

4 March , 03

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/Isl/

Imigration Judge NOEL A. FERRIS

fes o May 31 , 20 1 a 7 : 40 PM GMT

A091-59-621 5

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March 22 201

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Documents

Jean Andre Aine, A091 359 621 (BIA May 28, 2015)