Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

7/27/2019 Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)

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Vilasana, Sol, Esquire901 Man St, Suie 6200Dalas, TX 75202

m

Executive Oce r Immigraon Review

Board ofImmigraton AppelsOce of the Clerk

507 bg k. S 2000F Cc, Vg 220/

OHS/ICE ice of Chief Counse DAL125 E. John Carpene Fw, Se 500Ing TX 75062-2324

Name: RAVIESIZQUIERD, PABL A 087518131

Dae of his noce 812/2013

Enclosed s a copy of he Board's decson and order n he above-rerenced case.

Enclosure

Pl Mb:Gr Edwrd R

Sncerely,

D cDonna CarrChef Clerk

h k

Cite as: Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)


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UNITED TATE DEPATMENT O TCEEXECUTIVE OFFICE FO IMMIATION EVE

UNITE ATE IMMIATON COALLA TEXA

F: A0131

n Mar o

PABLO TAVIEOIZQUIEDO

EPONDENT

Dm 01

IN MOVAL POCEEDN

CHAE on 1 a} ( ) a of aon anNaona A a amn, n a o ar an An pn n nd a o n adm o paro or woav n Und a a any o pa o andnad y Aon nra

APPLICATION q o mnaon o mova ponrq or admn of a n Cban Amn A

ON BEHA O EPONDENT OL VILLAANA, EQUIE 09 VILLAEEEN DIVE OCKALL, EXA 707

ON BEHALF OF DH JOHNON L ALLUM EQUE ATANT CHIEFCONEL, DALLA EXA

OAL DECIION OF THE IMMIATION JUDE

T pondn a a av ad n o a

H avd a o na Lado Txa on o ao Jl o A

of 00 H a no hn npt o paod by an aon


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.

Oir (Exiit

On Juy 9 009 Rspondnt was rantd paro y te

partent o oand Seurty (hernater rrrd to as t

Govrnent n aredo exas Se or -94 (Exiit 3)

On mer 22 200 t Government servd th

Rspondnt with th Notie to Apar harin i wit

rovaty under Setion (a (6 (A (i o te raton

and Nationaty At (th At (Exiit .

On Sptr 4 0 t Rspondnt appard or

t ourt wt ounse and admtted to atua aeations on

two and tr ut dnid aeation numer our and denied th

ar o remova (Exit . urn t arn an issu

arose as to wthr te Respondent was parod as to quay or

adjustmnt o status under the uan Reue Adustnt At o

9 e ourt aowed t partis tim to ri t issueOn Otoer 24 20 t Rspondnt sumittd a ri

as to is ty or adjustent under te uan Adjustent

At. On Novemer 9 202 th Govrnment sumitted a Moton to

rnate Proedns

NNGS O A AN ONUSONS O AW

Governent has ied a Motion to erminat

Prodns assrtn that it is te Governnts poston tat

te Resondents ea enry does not rene neie

or adustmnt o status undr te uan Adustment At As

xpand eow te ourt does not are wth t Govrnent's

A8-8 eemr 6 02


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poston and fnds that the Respondent s not elgbe for

adjustment of status under the uban Adjustment Act. Gven the

ourt's conclusons to grant the Government's Moton to

Termnate would be an abdcaton of the ourt's responsblty

to exercse hs ndependent udgment and uphold the aw,

notwthstandng the poston of the partes See 8 FR

1003 . 10 (b (graton Judges should exercse ther

ndependent udgment and dscreton and may take any acton

consstent wth ther authorty under the Act and regulatons

that s approprate and necessary See also n re G-N--, 22

&N Dec 289, 284 (988 (8 FR Secton 239. 2(c presumably

contemplates not just the automatc grant of a Moton to

Termnate, but an nformed adjudcaton by the graton Judge

or ths oard based on an evaluaton of the factors underlnng

the Servce moton Furthermore, the ourt s not nclned togrant a moton that both gnores the aw and s completely at

odds wth the facts of the case. Accordngy, the ourt would

deny the Government's Moton to Termnate Proceedngs.

VDN

Documentary vdenceThe folowng documents are n the Record of

Proceedngs and have een consdered by the ourt

xht , the otce o ppear xhbt , the

applcaton for employment authorzaton, the Form -6;

xhbt 3, the recept of the applcaton for employment

A08-18-131 3 ecember 6 201


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authorzaton; xht 4 empoyment authorzaton card; xht

Respondent's departure record; xht 6 S S nteroffce

memorandum dated eruary 3 2009; xht 7 u nteroffce

memorandum dated eruary 4 2009

TSTMNY/VDN

Testmony by the RespondentRespondent stated that he frst entered the nted

States n Juy or ugust of 2008 When asked how he entered the

nted States at that tme he stated came through the

order They rought me through the order ecause they tod me

f I crossed the order graton woud catch me" When

asked what he meant when he sad he crossed the order " the

Respondent stated that " came through Ro ravo. came

through Mexco and then waked over the road" When asked

whether he waked over the road from Mexco to the nted

States the Respondent stated Yes" When asked f he has eft

the nted States snce the tme he entered n uy or ugust of

2008 Respondent stated have not eft" When asked whether

when he waked over the road nto the nted States from Mexco

he entered the nted States egay Respondent stated

Yes"

RDBTY

fter revewg the Res es mony the Court

fnds tht the Respondent was a crede wtness e testfed

canddy and truthfuy

08-18-3 4 Decemer 6 2012


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GA STANARS AN ANAYS S

A Charg Undr Scton 22(a) (6)(A) () of th Acth Rspondnt argus that th charg undr Scton

22(a)(6) (A)() should not b sustand bcaus h was actuay

parold by th Govrnmnt on uy 9 2009 and thus h s not

an aln prsnt n th Untd Stats wthout bng admttd or

parod owvr what th Rspondnt fald to rcognz was

that Scton 22(a) 6)(A)() may also b sustand aganst an

aln who arrvd n th Untd Stats at any tm or plac

othr than dsgnatd by th Attorny Gnral S Scton

22(a) 6)(A) () (An aln prsnt n th Untd Stats wthout

bng admttd or parold or who arrvs n th Untd Stats at

any tm or plac othr than as dsgnatd by th Attorny

Gnral s nadmssb r th Rspondnt tstfd that

h smply crossd ovr th bordr" nto th Untd Stats

Whn askd whthr h ntrd th Untd Stats galy

spondnt admttd that h had Accordngly dspt th

Rspondnts contnton that h was vntually parod nto th

Untd Stats th ourt fnds that th Govrnmnt has mt ts

burdn of stabshng alnag

Th ourt has also found that Rspondnt has fad to

mt hs burdn of proof that by clar and convncng vdnc

that h was awfuly n th Untd Stat Th ourt also fnds

Rspondnt has fald to mt hs burdn of proof to stabsh

cary and byond a doubt that h's nttld to b admttd and

A08-8- Dcmbr 6 202


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not admssbe as charged and the Court fnds that the evdence

reveals that Respondent entered the Unted States at a tme or

place other than desgnated by the Attorney Genera

urthermore as noted below the Court also fnds that

Respondent was not propery nspected or paroled nto the Unted

States on July 19 009 thus makng the charge under Secton

1 a (6 (A sustanabe o that ground as well

IGIIITY FR ADJUSTMNT F STATUS UNDR T CUAN RUG ACT

Under the Cuban Adustment Act of 966 any natonal

of Cuba or the mmedate reatve of any Cuban natonal

(ncludng after acqured spouses and chldren can apply for

permanent resdence n the Unted States one year after they

have been nspected admtted or paroled nto the country f the

alen s elgble to receve an mmgrant vsa and s admssble

to the Unted States for permanent resdence The prmary ssue

here s whether the Respondent met the threshold requrement of

beng nspected and paroed nto the nted States so as to make

hm elgble for adjustment of status under the Cuban Adjustment

Act

As an ntal matter t s necessary to clarfy the

seres of events leadng up to the Respondent's eventual paroe

As rected n the factual hstory the Respondent actually

entered the Unted States uy or August of 008 e

admtted durng testmony that when he crossd the border n

July or August 008 he dd so llegally e he dd not enter

A087-518-1 6 December 6 01


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th ntd Stats at a port of entry and dd not prsnt hmsf

at that tm to an mmgraton offcr to b nspected and

admtted or paroed n Juy 9 2009 approxmaty four yars

aftr h had galy ntrd the nted Stats Rspondnt was

granted parole by the Government n aredo xas. Ths grant

of parole dd not occur upon a subsequnt ntry by the

Rspondent tstfed that snc hs arrval n evadd

August of 2008 h had not dpartd the ntd Stats Thus t

s evdnt that the Respondent entrd th ntd States

egay wated almost a year and then presented hmsf for

nspecton n ardo exas he ourt must therfore rsolv

th quston of whether Respondent has bn proprly nspected

or paroed so as to qualfy hm for adustmnt of status undr

the uban Adustmnt Act

n th Matter of strada-tancourt th oard

dscussd the proper way n whch aens must prsent thmsvs

for nspectons (Although the Matter of strada-tancourt

took pac n the context of expuson versus xcuson

procedngs the ourt fnds the oard's anayss nstructd as

to the requred way n whch aens must prsnt thmslvs for

nspecton whereupon they may ether be admttd parod or

nethr admtted nor paroled See Matter of strada

etancourt 2 &N ec 9 96) urthermore n that

cas three uban alns crossed nto th nted States from

Mexco nar the Ro Grande approxmatly 20 mles east of

08-8- ecmber 6 202


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Brownsvile, Texas See strada-Betanourt at 9. Tey then

proeeded y ar to an airport n arlinen, exas, wi was

approximatey 20 mies from Brownsve and 10 miles inland from

the internaonal oundary They were taken into ustody at

hat tie after having een on te Unted States soil for nearly

tree ours The aliens in tat ase stated tat they were n

route to Miami, orda, and tat tey intended to present

temselves for nspetion upon teir arrval in Miami SeeEstrada-Betanourt at 192

n order to determine wheter te aliens in Estrada

Betanourt soud e paed in expuson or exusion

proeedngs, it was neessary for the Board to determine wether

they ad effeted an entry into the United States and terefore

ad entered without inspetion Te Board pointng to

estashed preeden ed tat aiens who do not ross te

order at a desnated port of entry must proeed diretly to

te nearest su port for inspeton See strada-Betanourt at

194. Sne the aiens n that ase dd not do so, te Board

held tat tey ad entered witout nspetion and terefore

properly paed in expusion proeedings See atter of

strada-Betanourt

ere the Respondent dd not ross te order at a

desnated port of entry t was tereore inument upon him

to proeed diretly to te nearest su port for nspetion

o ony did e fail to proeed direty to a port of entry, e

A08-83 8 eemer 6 2012


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waited a u year eore peoin ths requied acton. ke

the aens in stradaBetancourt, Respondent here ay have

intended ater to pesent himse or nspection ater entern

the nited States, and in act, he ater did present hmse or

suc inspection. owever, ineent in the Boad's reasonn

aove is te notion tat an aen may ony e propery nspected

under the Act e presents imse at a port o entry o i an

aen does not arive at a pot o entry e proceeds directy

to te nearest pot o entry. e aiens in stadaBetancourt

aso caimed tat they intended to eventuay present temseves

or nspection n Miai. espte this cam, the Board ed

that when the aens aied to present themseves imediatey at

the nearest port o entry in tat case, Brownsve, exas

t was at tat time tat they evaded inspection and thus had

entered wthout inspection us, reardess o Respondentsntentons to ater e nspected, e was not propery inspected

ecause ke the aiens in the case aove, he aed to

mmedatey present hise at the nearest port o entry ater

he entered the country ieay espondent thereore coud

not have een propery paroed as paroe ist equres an aen

to e inspected

n ode to show tat he was propery nspected and

paroed, espondent has ponted to he overnmens pocy

memorandu outinin te procedures tat te Government as

deveoped wen deain with certain aes ro Cua. And those

A8-583 9 ecemer 212


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memandums that the Genent deies m its ied ices

shud eneay execise faabe discetin t Cuban aiens

wh ae ineiibe adjustment status unde the Cuban

Adjustment Act ny as a esut hain nt been paed See

Respndents Bief at pae tw. wee, the Genments

intena picies ae nt bindin n the Cut. See Matte

M/V Sau Meu, 0 &N ec. 592 595-596 (IA 1992 (hdin that

the Seice Opeatins nstuctins ae nn-bindin in

pceedins befe the ad. Rathe, an iatin ude

must execise his independent udent and discetin in

decidin cases. 8 C. F. R. 100. (b. Accdiny, the Cut

wi nt take int accunt the Genents picy in

deteminin whethe Respndent was inspected paed

inay, the Cut ecnizes that the Genents

picy twad aiens Cuba is ted in sensitie pitica

cncens. See nited States . inguez, 66 F. d 1051 11thCi 011 ntin that pitica a Cuban euees

achieed ficia status in 966 with the passae f the Cuban

Adustment Act fwed by chanes t eacy INS picy twad

Cuban euees Athuh the Genent is we within its

iht t tai its picies in espnse t such cncens, the

Cut may nt ikewise entetain such cncens. hus,

eadess f hw fae Cuban euees hae taditinay

hae een teated upn ia t the United States a pesns

atteptin t ente the nited States ae subect t inspectin

A087-518-1 0 ecembe 6 0


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y igation oices o detemination o tei igt to

ente egadess o te gound on ic tei caim to tat

igt is ased. See stadaBetancout 1 &N ec. at 19

citing United States v. Jutoam 9 U. S. 5 1905).

contay ule suc as one tat cannot e imited y time o

distance ould esult in a oss o a comotale pimay

inspection. See stada-Betancout at 196. s te Boad as

noted oviously out o caos out o enocement o te

iigation las could esult om admitting aliens to poceed

to inspection points tat tey eieve il est suit tei on

inteests. See Estada-Betancout.

o te easons stated aove te Cout inds te

Respondent as not inspected and paoed in accodance it te

iigation las. Tus e is not eligile o adustment o

status unde te Cuan dustment ct as tat statute dictates

tat only aliens o ave een inspected admitted o paoed

ae eligile to adjust status. See Cuan dustment ct.

n concusion te ooing ode sall e enteed.

ORER

IT S EREBY ORR tat te Govenments Motion to

Teminate Remova Poceedings ill e NI;

IT IS URTR ORRE tat te cage unde Section

1(a)(6)()(i o te ation an Nationaity ct is

SUSTNE;

T S URTR ORERE tat te Respondents

087-58-1 eceme 6 01


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appaon o amen o a ne e Can men

e peeme an DENIED

I I FTHE ODEED a e eponen a e

emoe an epoe om e ne ae o Ca on e

ae onane n e Noe o ppea

?1131

Pleae soo tho next page fr oori situreDETCH H MIaon e

2 Deeme , 202


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//s//

Iigration Judge DEITRICH H. SIMS

simsd o Agst 2013 t 8:23 PM GMT

A087-583 13 Decembe 6, 202

Documents

Pablo Travieso-Izquierdo, A087 518 131 (BIA Aug. 12, 2013)