Um it Mike Gursoy, Esquire

Gursoy Law Firm, P.C.

1624 Voorhies Avenue
Brooklyn, NY 11235
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigration Appeals
Qfce of the Clerk
5107 leesburg Pik, Suie 2000
Fals Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - NEW
P.O. Box 1898
Newark, NJ 07101
Name: BORDAMONTE, ROBINSON W A 035-979-158
Date of this notice: 10/8/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Dc c t
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)
BORDAMONTE, ROBINSON W
A035-979-158
ICE/ESSEX COUNTY JAIL
354 DOREMUS AVENUE
NEWARK, NJ 07105
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 J 07 Leesburg Pik, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - NEW
P .0. Box 1898
Newark, NJ 07101
Name: BORDAMONTE, ROBINSON W A 035-979-158
Date of this notice: 10/8/2014
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed fom the United States or affrs a Immigration Judge's decision ordering that you
be removed, ay petition fr review of the attached decision must be fled with and received
by the appropriate cour of appeals witin 30 days of the date of the decision.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Donna Car
Chief Clerk
lucamd
Useream:
PgfJ:!!.
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Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)
.i U.S. Deparment of Justice
Executive Ofce fr Immigration Review
Decision of the Boad of Immigation Appeals
Falls Chuch, Virginia 20530
File: A035 979 158-Newak, NJ Date:
OCT -82014
I re: ROBINSON W BORAMONTE
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Umit Mike Gursoy, Esquire
CHAGE:
Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony (as defned in section 101(a)(43)(G))
Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony (as defned in section 10l(a)(43)()
Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(i
i
i)] -
Convicted of aggavated flony (as defned in secton 101(a)(43)(M))
(withdrawn)
Sec. 237(a)(2)(A)(ii), l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)]
-
Convicted of two or more crimes ivolving moral turitude
Lodged: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated felony (as defned in section 10l{a)(43)())
APPLICATION: Terination of proceedings
The respondent appeals the Immigration Judge's May 1, 2014, decision denying his motion
to terminate his prceedings based on his clam that he derved United States citizenship by
virte of his moter's natalizaton under frer section 32l(a)(3) of te Imgation ad
Nationaity Act, 8 U.S.C. 1432(a)(3). The appeal will be susted, ad the record will be
remanded to the Imigration Judge fr fher proceedings consistent with this opinion ad fr
entry of a new decision.
In her decision, te Imigation Judge dened the respondent's motion to terinate his
proceedings based on his clam of derivative citizenship under frer section 321(a)(3) of the
Act (I.J. at 6-13).
1
Specifcally, relying on the Tird Circuit's decision in Morgan v. At' Gen.,
432 F.3d 226 (3d Cir. 2005), the Immigration Judge apparently concluded that because the
1 Forer section 32l(a)(3) of the Act provides, in pertinent pa, tat a child derves
United States citizenship though "[t]he naturalization of the paent having legal custody of the
child when there has been a legal s eparation of the paents ... " (emphases added).
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Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)
A035 979 158
respondent could not provide a document issued by a cour atering the marital relationshp of his
paents, he could not establish they had been legally sepaated at the time his mother naturalized
(Tr. at 13).
2
The Immigration Judge does not appear to have fher considered the merits of the
respondent's claim.
On appeal, the respondent agues that the Immigration Judge erred in requiring a cou-issued
document of legal separation in order fr him to meet his burden of proof under frmer section
321 ( a)(3) of the Act. In this regard, te respondent cites Philippine law which, he claims, does
not require a couple to obtn legal documentation of a infrmal separaton but lows fr a
spouse to legally remary afer having been sepaated fr 4 consecutive years. See Respondent's
Brief at 7-9. The respondent claims that his paents were legally sepaated when hs moter
naturalized because she wa permitted to legally rema under Philippine law, ad tat he was
in her sole custody in the United States at that time.
The issue in this case is not whether te respondent has a lega document issued by a cou,
as the Immigaton Judge appaently concluded. Rather, the issue is whether there was a fral
action by a competent goverent autorit alterng te marital relationship, thereby
establishing with certainty that a legal separation occured. See Morgan v. Atty Gen., supra, at
234; see also Leslie v. At' Gen., 208 F. App'x 108, 113 (3d Cir. 2006) (unpublished).
3
Ideed,
in Morgan, te Third Circuit noted that a "frmal action" need not necessarily be a judicial
decree, citing te fct that tere is noting in the laguage of the statute tat requires that a court
must act fr a legal sepaation to exist. Id. at 234 n.4. Tus, the Third Circuit appeas to be
concered not with ay paicula legal document bt with te recogition by a state authority
that the marital relationship was altered such that it could be deterined with some cernty that
a "legal separation" occured. See id.; see also Mater of H-, supra.
Here, the respondent claims that neither New Jersey nor the Philippines required a decree of
frmal sepaation at te time his parents sepaated. Thus, he contends, he canot be fulted fr
not having a judicial decree to present to the cour. See Leslie v. Atty Gen., supra (fnding no
fult where the paents did not obtan a judicia decree where te relevant juisdiction did not
provide fr one). However, the record does not indicate that the Immigation Judge considered
any of te respondent's arguments as to the issue of whether there was a "legal separation" at te
2
Te substance of the Immigation Judge's decision that is at issue is fund primarly in the
transcript. I her written decision, the Immigration Judge concluded without explanation tat the
respondent provided no evidence that there was a legal separation (I.J. at 3-4).
3
In this regard, we note that te language used by the Board in Matter of H-, 3 I&N Dec. 742
(BIA 1949), could be read to suggest suppor fr te proposition that a "legal sepaation" refrs
only to a "limited or absolute divorce obtained trough judicial proceedings." See id. at 743-44.
However, Matter of H- stads fr the proposition that a sepaation must include state
involvement, e.g., a cour order or some other recogition fom the state, in order to qualif
under frmer section 32l(a)(3) of the Act. See, e.g., Brissett v. Ashcrof, 363 F.3d 130, 135 ad
n.4 (2d Cir. 2004).
2
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Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)
'
A035 979 158
time of his mother's nataization, and it appears that she instead relied solely on his lack of a
cou-issued document (Tr. at 13).
We conclude that the record does not indicate that the Immgration Judge properly applied
the Third Circuit's decision in Morgan to the respondent's case when she apparently required
him to present a cou-issued docuent (Tr. at 13). See 8 C.F.R. 1003.l(d)(3)(ii) (2014) (de
novo review). Fuer, the content of freig law is a question of fct, and we generally canot
mae fndings of fct on appea. See Mater of A-G-G-, 25 I&N Dec. 486, 505 n.19 (BIA 2011)
(citing Matter of Annang, 14 l&N Dec. 502, 503 (BIA 1973)); 8 C.F.R. 1003.l(d)(3)(iv).
Therefre, we fnd that a remad is warated fr the Imigration Judge to consider the
respondent's agument regading his claim under frmer section 321(a)(3) of te Act. Should
the Immigation Judge deterine tat the respondent ha met his burden of proof fr his claim of
dervative citizenship, te proceedings should be terminated.
Accordingly, the appeal will be sustained, ad the record will be remaded to the
Immigation Judge fr fher proceedings consistent with tis opinion and fr enty of a new
decision.
ORER: Te appeal is sustained, and the record is remanded to te Immigration Judge fr
fher proceedings consistent wit tis opinion and fr enty of a new decision.
3
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Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)
,
I
'
UNITED STATES DEPARTMENT OF JUSTI CE
EXECUTIVE OFFICE FOR I MMIGRATI ON REVIEW
UNITED STATES IMMIGRATION COURT
NEWARK, NEW JERSEY
File: A035-979-158
In the Mater of
May 1, 2014
ROBI NSON W. BORDAMONTE
RESPONDENT
)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGES: Section 237(a)(2){A)(iii) Immigration and Nationality Act -
aggravated felony; Section 237(a){2)(A){iii) Immigration and
Nationality Act -- aggravated felony; Section 237(a)(2)(A)(ii)
Immigrtion and Nationalit Act - two crimes involving moral
turpitude; Section 237(a)(2)(A)(iii) Immigration and Nationality Act -
- aggravated felony
APPLICATIONS: Termination
ON BEHALF OF RESPONDENT: LETI CIA ZUNIGA
832 Clifon Avenue
Clifon, New Jersey 07013
ON BEHALF OF DHS: SETH RUGER
Assistant Chief Counsel
Deparment of Homeland Security
Newark, New Jersey
ORAL DECISION OF THE I MMIGRATION JUDGE
The respondent is a 48-year-old male native of the Philippines who was
admited to the United States at Anchorage, Alaska, on August 28, 1976, as a legal
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permanent resident. On Januar 6, 2011, he was convicted in the United States District
Cour, District of New Jersey, for the ofense of conspiracy to transpor stolen securities
in violation of 18 U.S. Code Section 371 and conspiracy to receive falsely made
interstate securities in violation of 18 U. S. Code Section 371. On Januar 6, 2011, he
was sentenced to 33 months in Federal Prison for these ofenses. On April 23, 2013,
he was convicted in the New Jersey Superior Cour, Sussex County, for conspiracy in
violation of New Jersey Statute 2C5-2 and thef by deception in violation of New Jersey
Statute 2C:20-4. On April 23, 2013, he was sentenced to four years in State Prison for
this ofense. These crimes did not arise out of a single scheme of criminal misconduct.
The respondent denied factual allegation 1 on the Notice to Appear
(Exhibit 1 ), but conceded that the is a native of the Philippines as alleged in factual
allegation 2, although he denied that he is a citizen of the Philippines as alleged in
factual allegation 2. He admitted factual allegations 3 through 8 as contained on the
Notice to Appear, but denied factual allegation 6.1 as contained on Form 1-261 dated
April 1, 2014 (Exhibit 1A). Respondent denied the charges contained on the Notice to
Appear which were that he is removable under Section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (Act) in that afer admission he was convicted of an
aggravated felony as defned in Section 101 (a)(43)(G) of the Act, Section
237(a)(2)(A)(iii) of the Act in that afer admission he was convicted of an aggravated
felony as defined in Section 101 (a)(43)(U) of the Act, Section 237(a)(2)(A)(ii) in that
afer admission he was convicted of to crimes involving moral turpitude that did not
arise out of a single scheme of criminal misconduct and, as contained on the Form 1-
261, that he is removable under Section 237(a)(2)(A)(iii) of the Act in that afer
admission he was convicted of an aggravated felony as defined in Section
101 (a)(43)(M)(i) of the Act.
A035-979-158 2 May 1, 2014
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Because the respondent was born in the Philippines, he is presumed to be
an alien and bears the burden of establishing his claim to United States citizenship by a
preponderance of credible evidence. Matter of Tijeriana-Villareal, 13 l&N Dec. 327 (BIA
1969). The Child Citizenship Act of 2000 (CCA) does not apply because the
respondent was over 18 before Februar 27, 2001, the efective date of the CCA.
Mater of Rodriguez-Tejedor, 23 l&N Dec. 153 (BIA 2001). Therefore, former Section
321 (a) of the Act applies to this case. Former Section 321 (a) provides that a legitimate
child born outside the United States of alien parents becomes a citizen of the United
States upon the naturalization of the parent having legal custody of the child when there
has been a legal separation of the parents and if such naturalization takes place when
the child is under 18 and the child is residing in the United States pursuant to a lawful
admission for peranent residence at the time of the naturalization of the parent.
Former Section 321 (a) of the Act furher provides that a legitimate child born outside the
United States citizen of alien parents becomes a citizen of the United States upon the
naturalization of both parents i such naturalization occurs while the child is under 18
and the child is residing in the United States puruant to a lawful -admission for
permanent residence at the time of the naturalization of the applicable parent or
parents.
In this case, as noted above, respondent was bor November 15, 1965.
He was admited as a lawful permanent resident on August 28, 1976; therefore, he was
admited as a lawful permanent resident at the age of 10. The respondent's mother
naturalized on October 6, 1978, and his father naturalized on May 2, 1986. Therefore,
while his mother naturalized while he was under 18, he was over 18 when his father
naturalized and the respondent therefore did not derive citizenship based on the
naturalization of his parents. We have no evidence in the record that there was a legal
A035-979-158 3 May 1, 2014
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(
separation of the parents such that the naturalization of only his mother would allow him
to derive citizenship through her naturalization. Therefore, based on the evidence
before the Court, the respondent has failed to show by a preponderance of credible
evidence that he derived citizenship through the naturalization of his mother. Factual
allegation 1 on the Notice to Appear is sustained.
The Deparment of Homeland Security has the burden of proof by clear
and convincing evidence to show respondent is removable as charged. An alien is
removable under Section 237(a)(2)(A)(ii) of the Act if, afer admission, he has been
convicted of an aggravated felony as defined in Section 101 (a)(43)(G) of the Act, a law
relating to a thef ofense (including receipt of stolen propery) or burglar ofense for
which the term of imprisonment of at least one year was imposed. In this case, the
respondent admitted that he was convicted on April 23, 2013, of conspiracy and thef by
deception in violation of New Jersey Statutes 2C:5-2 and 2C:20-4. The Cour
concludes based on the rationale described in the case of Nugent v. Ashcrof, 367 F .3d
162 (3rd Cir. 2004), that the crime of thef by deception in violation of New Jersey
Statute 2C:20- is a thef ofense within the meaning of Section 101 (a)(43)(G) of the
Act. Specifically, the crime of thef by deception discussed by the Third Circuit in
Nugent is identical to the New Jersey Statute under which the respondent is convicted.
Although Nugent v. Ashcrof was overruled on the theory of a "hybrid ofense" by
Alcohol-Sharif v. U. S. Citizenship and Immigration Serices, 734 F.3d 2007 (3rd Cir.
2013), the Court considers the reasoning and holding of the Nugent cour regarding the
character of a factually identical Pennsylvania Statute to be dispositive of the issue of
whether the respondent's conviction by thef by deception meets the definition of a thef
ofense under Section 101 (a)(43)(G) of the Act as the respondent admitted he was
convicted and sentenced to four years in prison for that ofense. Therefre, the
A035-979-158 4 May 1, 2014
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Deparment of Homeland Security has established by clear and convincing evidence
respondent is removable as charged under Section 237(a)(2)(A)(iii) of the Act, in that
afer admission he was convicted of a thef ofense as defined in Section 101 (a)(43)(G)
of the Act for which he was sentenced to prison of at least a year. See also judgment of
conviction at Exhibit 5. That charge is sustained.
An alien is removable pursuant to Section 237(a)(2)(A)(iii) of the Act if
afer admission he has been convicted of an aggravated felony as defined in Section
101 (a)(43)(U) of the Act, a law relating to an attempt or conspiracy to commit an ofense
described in Section 101 (a)(43) of the Act. As discussed above, the Cour has
concluded that respondents conviction for thef by deception meets the definition of an
aggravated felony under Section 101 (a)(43)(G) of the Act. On April 23, 2013, he was
convicted of conspiracy to commit that ofense in violation of New Jersey Statute 2C:5-
2. Therefre, the Deparment of Homeland Securit has met its burden to show by
clear and convincing evidence respondent is removable as charged under Section
237(a)(2)(A)(iii) of the Act in that afer admission he was convicted of an aggravated
felony as defined in Section 101 (a)(43)(U) of the Act. See also Exhibit 5. That charge
is sustained.
An alien is removable under Section 237(a)(2)(A)(ii) if afer admission he
has been convicted of two crimes of moral turpitude not arising out of a single scheme
of criminal misconduct. As the respondent admited and as confirmed by the judgments
of conviction at Exhibit 5, he was convicted on Januar 6, 2011, in the U. S. District
Cour, District of New Jersey, of conspiracy to transpor stolen securities in violation of
18 U.S. Code Section 371, and conspiracy to receive falsely made interstate securities
in violation of 18 U.S. Code 371, and on April 23, 2013, of conspiracy in violation of New
Jersey Statute 2C:5-2 and thef by deception in violation of New Jersey Statute 2C:20-4.
A035-979-158 5 May 1, 2014
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He also admitted that these ofenses did not arise out of a single scheme of criminal
misconduct.
The Third Circuit has adopted the Board's defnition of a crime involving
moral turpitude. Parka v. Attorney General, 417 F.3d 408, 413 (3rd Cir. 2005), citing
Knapik v. Ashcrof, 384 F.3d 84, 89 (3rd Cir. 2004). The term "moral turpitude"
generally refers to conduct which is inherently base, vile, or depraved, and contrar to
the accepted rules of morality and the duties owed beteen persons, or the duties owed
to society in general. Parka, 417 F .3d 413; Mater of Olquin, 23 l&N Dec. 896 ( BIA
2006). Whether a paricular crime involves moral turitude is determined by the
statutor definition, not by a respondent's specific conduct. Parka, 417 F.3d 411.
Neither the seriousness of the criminal ofense nor the severity of the sentence imposed
is determinative of whether a crime involves moral turpitude; it is the specific statute
under which the conviction occurs that is controlling. Matter of Serna, 20 l&N Dec. 579
(BIA 1992). Cours generally assess "whether the act is accompanied by a vicious
motive or a corrupt mind" in order to determine the existence of moral turpitude. See
Parka, 417 F.3d 413, citing Matter of Franklin, 20 l&N Dec. 867, 868 (BIA 1994). The
Third Circuit Cour of Appeals presumptively applies the categorical approach to look at
the elements of the statutory ofense to discern the least culpable conduct hypothetically
necessar to sustain the conviction. Jean-Louis v. Attorney General, 582 F.3d 462, 471
(3rd Cir. 2009).
The Cour concludes that the crime of conspiracy to transpor stolen
securities in violation of 18 U. S. Code Section 371 is a crime involving moral turpitude
and furher concludes that conspiracy to receive falsely made interstate securities in
violation of 18 U.S. Code 371 is a crime involving moral turpitude. Furher, the Cour
concludes the ofense of conspiracy to commit thef by deception is a crime involving
A035-979-158 6 May 1, 2014
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moral turpitude. As these crimes did not arise out of a single scheme or criminal
misconduct (in other words, the crime of conspiracy to commit thef by deception did not
arise out of a single scheme of criminal misconduct with the crimes of conspiracy to
transpor stolen securities and conspiracy to receive falsely made interstate securities)
the Deparment of Homeland Security has met its burden to show by clear and
convincing evidence respondent was convicted afer admission of to crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct. The charge
under Section 237(a)(2)(A)(ii) is sustained.
The Deparment of Homeland Security also charged respondent was
removable pursuant to Section 237(a)(2)(A)(iii) of the Act in that afer admission he was
convicted of an aggravated felony as defined in Section 101 (a)(43)(N)(i) of the Act, an
ofense that involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000. See Form 1-261 at Exhibit 1A. The Deparment of Homeland Security alleged
that the amount of loss to the victim in his crime for conspiracy to commit thef by
deception was in excess of $10,000. Based on the evidence before the Court, the
Deparment of Homeland Security has failed to establish by clear and convincing
evidence the amount of loss exceeded $10,000, and, therefore, has failed to prove by
clear and convincing evidence the respondent is removable under Section
237(a)(2)(A)(iii) of the Act in that afer admission he was convicted of an aggravated
felony as defined in Section 101 (a)(43)(M)(i) of the Act. Specifically, the conviction
record at Exhibit 5, which is the evidence ofered by the Deparment of Homeland
Security to establish the amount of loss to the victim, does not specif the amount of
loss. Therefore, the charge as contained on the Form 1-261 on Exhibit 1A was not
sustained.
The record consists of the Notice to Appear (Exhibit 1 ), Form 1-261 dated
A035-979-158 7 May 1, 2014
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April 1, 2014 (Exhibit 1A), motion to terminate removal proceedings with attachments
(Exhibit 2), naturalization application (Exhibit 3), naturalization application (Exhibit 4),
Deparment of Homeland Security filing (Exhibit 5).
The respondent designated the Philippines as countr of removal should
such action become necessary. Respondent made no application for relief from
removal and, based on the Cour's ruling that he has been convicted of an aggravated
felony, does not appear eligible for any relief from removal. Therefore, the Cour has no
choice but to order that he be removed from the United States on the charges sustained
as discussed above.
Undoubtedly the respondent has accrued many, many equities during his
time in the United States as he came here as a young man and has citizen parents and
grew to adulthood in this countr. Unforunately, because of the nature of his conviction
being an aggravated felony he is not eligible to apply for discretionary relief before this
Court where this Cour could take into account his many equities in the United States.
ORDER
IT IS HEREBY ORDERED that respondent be removed from the United
States pursuant to Section 237(a)(2)(A)(iii) of the Act (aggravated felony as defined in
Section 101 (a)(43)(G) of the Act), Section 237(a)(2)(A)(iii) of the Act (aggravated felony
as defined in Section 101 (a)(43)(U) of the Act), Section 237(a)(2)(A)(ii) of the Act as
contained on the Notice to Appear, as amended.
A035-979-158
MARGARET R. REICHENBERG
Immigration Judge
8 May 1, 2014
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CERTIFICATE PAGE
I hereby certif that the attached proceeding before JUDGE MARGARET R.
REICHENBERG, in the matter of:
ROBINSON W. BORDAMONTE
A035-979-158
NEWARK, NEW JERSEY
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Ofice for Immigration Review.
CASEY S. SMITH (Transcriber)
DEPOSITION SERVICES, l nc.-2
AUGUST 28, 2014
(Completion Date)
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