Brumbaugh, Marian C.

Marian C. Brumbaugh Law Ofice

20525 Center Ridge Rd, Ste 136
Rocky River, OH 44116
Name: ALMIKDAD, SHADI JAMAL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church, Virginia 220./
OHS/ICE Ofice of Chief Counsel - CLE
1240 E. 9th St., Room 585
Cleveland, OH 44199
A047-852-543
Date of this notice: 4/4/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Shadi Jamal Almikdad, A047 852 543 (BIA April 4, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
fT
U.S. Department of Justice Decision of the Board oflmigation Appeals
Executiv Ofce fr Imigation Review
Falls Church, Virginia 22041
File: A04 7 852 543 - Cleveland, OH Date:
In re: SHADI JAMAL ALMIKDAD a.k.a. Shadi Al Mikdad
IN REMOVAL PROCEEDINGS
CERTIFICA TION1
ON BEHALF OF RESPONDENT: Marian C. Brumbaugh, Esquire
ON BEHALF OF DHS:
CHARGE:
Cherl C. Gutidge
Assistant Chief Counsel
APR -4 2011
Notice: Sec. 237(a)(l)(D)(i), I&N
Act [8 U.S
.C. 1227(a)(l)(D)(i)] -
Conditional resident status terminated
APPLICATION: Section 216(c)(4)(B) waiver
This case comes to us on certifcation by the Immigation Judge. This matter was originally
befre us pursuat to an appeal fled by the Department of Homeland Securit ("DHS") on
October 22, 2007. In that appeal, the DHS contested the Immigration Judge's September 21, 2007,
decision granting the respondent a waiver of the requirement to fle a joint petition to remove the
conditional basis of his permanent resident status under section 216( c )( 4 )(B) of the Immigration and
Nationality Act, 8 U.S.C. l 186a(c)(4)(B).
On April 7, 2008, we issued a decision remanding the record to the Immigation Judge fr
completion of the record due to unresolved "indiscemibles" in the transcript of the respondent's
ex-wif's testimony taken on September 21, 2007. On September 23, 2009, the Immigration Judge
held a new hearing fr the purpose of retaking the respondent's ex-wife's testimony. The
Immigration Judge ten certifed the record to the Board without rendering a new decision or making
any fndings of fct on the record.
Both parties fled briefs fllowing the Immigration Judge's certifcation. The DHS continues
to challenge the Immigration Judge's September 21, 2007, decision granting the respondent's
application fr a waiver under section 216( c )( 4 )(B) of the Act. The DHS argues that the Immigration
Judge erred in fnding that the respondent ad his ex-wife were credible. The DHS cites to
numerous discrepancies between the respondent's and his ex-wif's testimony. The DHS
additionally contends tat the Immigration Judge applied the wrong legal standard in deterining
1 To resolve any issues of timeliness, we will consider this matter on appeal pursuant to 8 C.F.R.
1003.l(c).
1.W -WV ;.,=v,. . . . . .. 1 .
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Cite as: Shadi Jamal Almikdad, A047 852 543 (BIA April 4, 2011)
.
A047 852 543
whether the respondent entered into his mariage in good faith ad maintains that the Immigation
Judge should have considered the intentions of both parties in entering the marital relationship.
The Board reviews fndings of fct, including credibility deterinations, under a clearly
eroneous standard. 8 C.F.R. 1003.l{d)(3)(i). We review questions of law, including whether the
paies have met the relevant burden of proof, ad issues of discretion under a de novo standard.
8 C.F.R. 1003.l(d)(3)(ii). Because the respondent's application fr relief was fled afer
May 11, 2005, it is govered by the provisions of the RAL ID Act. Matter ofS-B-, 24 I&N Dec. 42
(BIA 2006).
We fnd that remand of proceedings is waranted. The Immigration Judge's September 21, 2007,
decision relating to the respondent's credibility is not sufciently detailed fr us to meaningflly
review the arguments presented by te DHS regarding credibility (l.J. at 7-8). Additionally, the
Immigration Judge's decision does not take into account the subsequent testimony of the
respondent's ex-wife on September 23, 2009, and the Immigration Judge did not make new fndings
of fct regarding that testimony on remand. Moreover, the parties did not stipulate that the testimony
provided by the respondent's ex-wif on remand in 2009 was the same as that provided in 2007.
Accordingly, we will remand the record to the Immigration Judge fr the issuance of a new
decision on te respondent's application fr a waiver under section 216(c)(4)(B) of the Act.
Matter ofS-H-, 23 I&N Dec. 462, 465 (BIA 2002) ("If incomplete fndings of fct are entered and
the Immigration Judge's decision ultimately cannot be afred on the basis that he or she decided
the case, a remand of the case fr fer fct-fnding may be unavoidable."). On remand, the
Immigration Judge should enter new fndings of fct on the evidence presented, including the
testimony of both the respondent and his ex-wife; render a new credibilit deterination, clearly
setting frth the testimony and evidence supporting that determination; and provide a detailed
analysis of the legal fmework applied to the assessment of the respondent's eligibility fr a section
216(c)(4)(B) waiver.
ORDER: The record is remaded to the Immigration Court fr frther proceedings consistent
with the fregoing opinion ad fr the entry of a new decision.
RFT
2
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Cite as: Shadi Jamal Almikdad, A047 852 543 (BIA April 4, 2011)
..
.
In the Matter of:
IMIGRATION COUT
801 W. SUPERIOR AVE, STEl3-lOO
CLEVL, OH 44113
(
.)
Case No.: A047-BS2-543
ALMIKA, SHI JA
In DEPORTATION Proceedings
Respondent/Applicant
ORER OF AMINISTRTIV RET/CERTIFICATION TO THE BOA
This matter is hereby certified to the Board of Immigration Appeals for the
following eaaen:
This case was remanded to the Immigration Court due to a problem with
the hearing tapes, transcript, or oral decision.
The problem has been resolved in the maner stated below.
The case is hereby retured to the Board for adjudication of the
previously filed appeal(s).
This case was remanded to the Immigration Court for consideration of
new relief with instructions to certify or return the record to the
Board if relief is denied.
Relief was denied for the reasons stated in the decision of the
Immigration Judge dated //
The case is hereby returned to the Board for adjudication of the
previously filed appeal(s).
The Board, not the Immigration Court, has jurisdiction over the motion
to reopen/reconsider filed on // by the
ADITIONAL EXPLATION
Tapes Enclosed
Written Decision of the Immigration Judge enclosed.
THIS DOCUNT
TO: [ ) ALI
DATE:
BY:
c/o
BY:
OIR-33
CERTIFICATE OF SERVICE
MIL (M) PERSONA
Custodial Offi
SERVICE (P)
ALIE'S ATT/REP
COURT STAFF
[ ] EOIR-28 Legal Services List
r OHS
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