U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office ofthe Clerk
5107 Lee.vb11rg Pike, S111te 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - NYD

201 Varick, Rm. 1130
New York, NY 10014

Name: AINE, JEAN ANDRE

A 091-359-621
Date of this notice: 5/28/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DonrtL

ca.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Malphrus, Garry D.
Userteam: Docket

For more unpublished BIA decisions, visit

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

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

... . .

__l.

U.S. Department of Justice

Executive Office (or Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A091 359 621 -New York, NY

Date:

"MAY 182015

In re: JEAN ANDRE AINE a.k.a Jean Aine

APPEAL
ON BEHALF OF RESPONDENT: Ryan Muennich, Esquire
ON BEHALF OF OHS:

Scott Swanberg
Assistant Chief Counsel

CHARGE:
Notice: Sec.
Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled
212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Termination

The respondent is a native and citizen of Haiti. The Department of Homeland Security
("OHS") appeals a March 22, 2013, decision in which an Immigration Judge terminated these
proceedings. The appeal will be sustained, the proceedings will be reinstated, and the record will
be remanded.
The respondent initially entered the United States without inspection (J.J. at 1; 1/29/13 Tr. at
15-16; Exh. 1). 1 On July 27, 1988, he was granted temporary residence pursuant to the amnesty
provisions of section 245A(a) of the Immigration and Nationality Act, 8 U.S.C. 1255a(a)
2
(I.J. at l; Exh. 1). The respondent did not file an Application to Adjust Status from Temporary
to Permanent Resident (Form 1-698) within 43 months of his adjustment to temporary resident
status, as required to obtain permanent residence. See section 245A(b)(l )(A) of the Act. Rather,
I

As the record contains individual transcriptions of separate removal proceedings initiated

against the respondent in Pennsylvania and New York, we have specified the date of the relevant
hearing when citing to the transcript.
2

The Immigration Judge found that the respondent received temporary status on March 7, 1989
.J.
(I at 1). Based on the respondent's admission to the allegation in the Notice to Appear stating
that he was granted such status on July 27, 1988, we conclude that the Immigration Judge's
finding is clearly erroneous (1/29/13 Tr. at 16; Exh. I). See 8 C.F.R. 1003.l(d)(3)(i).
Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015)

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IN REMOVAL PROCEEDINGS

A091 359621
he filed a Form 1-698 years later on April 7, 2000. On November 8, 2002, the former
Immigration and Naturalization Service denied the respondent's application pursuant to section
245A(b)(l)(A) of the Act (I.J. at 1; 1/29/13 Tr. at 16; Exh. 1). The respondent also filed another
Form I-698 on January 9, 2006, which was denied on the same basis on July 27, 2006 (I. J.at 1).

After the respondent was released on bond, venue was changed to the New York, New York
Immigration Court and a different Immigration Judge took over the case (I.J. at 2). During
a hearing on December 17, 2010, the respondent informed the Immigration Judge that he
was seeking adjustment of status, using a visa petition (Form 1-130) filed on his behalf by
his United States citizen son (I.J. at 2; 12/17/10 Tr. at 41-43). At the ensuing hearing
on November 18, 2011, the respondent stated that the Form 1-130 had been approved
(11/18/11 Tr.at 46). The parties thus agreed to terminate the proceedings without prejudice so
the respondent could pursue adjustment of status before United States Citizenship and
Immigration Services (I.J. at 2; 11/18/11 Tr. at 46-47).3
3

The respondent asserts that the proceedings were terminated with prejudice
(Respondent's Brief at 14-16). This is not supported by the transcript, which shows that the
DHS agreed to termination so the respondent could seek a form of relief from removal
(11/18/11 Tr. at 46-47).
Along these lines, the respondent's counsel stated to the
Immigration Judge who issued the decision under review that the prior termination was without
prejudice so the respondent could pursue adjustment of status (3/14/13 Tr.at 27). Therefore, we
find no clear error in the Immigration Judge's finding that the proceedings were terminated
without prejudice (I.J. at 2). See 8 C.F.R. 1003.l(d)(3)(i).

2
Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015)

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On March 13, 2009, the respondent was convicted of Bank Fraud in violation of 18 U.S.C.
1344(a) (1/29/13 Tr. at 16; Exh. 1). Thereafter, on May 19, 2009, the DHS issued a Notice to
Appear ("NTA "), initiating removal proceedings in the York, Pennsylvania Immigration Court
(I.J. at 2). Although this NTA is not associated with the record, it is undisputed that the DHS
charged the respondent with removability under sections 212(a)(6)(A)(i) (present without being
admitted or paroled), 212(a)(6)(D) (stowaway), and 2l2(a)(2)(A)(i)(I) (convicted of a crime
involving moral turpitude) of the Act, 8 U.S.C. ll 82(a)(6)(A)(i), 1l 82(a)(6)(D) and
1182(a)(2)(A)(i)(I) (I. J. at 2). Likewise, it is not disputed that the DHS subsequently added
charges pursuant to sections 237(a)(l )(A) (inadmissible at the time of entry 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 an
aggravated felony), and 237(a)(l)(B) (present in violation of law) of the Act, 8 U.S.C.
1227(a)(l)(A), 1227(a)(2)(A)(iii), and 1227(a)(l)(B) (I.J. at 2). See 8 C.F.R. 1003.30.
During a hearing on November 16, 2009, the Immigration Judge indicated that the section
212 charges would be dismissed (11/16/09 Tr.at 16-17). The Immigration Judge agreed with the
respondent's argument that his grant of temporary resident status was similar to an "admission, "
see section 101(a)(l3)(A) of the Act, 8 U.S.C. l10l(a)(13)(A), such that only the section
237 charges were proper (11/16/09 Tr. at 26-29). Moreover, after evaluating the conviction
evidence submitted by the DHS, the Immigration Judge stated that he would dismiss the charges
under sections 237(a)(2)(A)(iii) and 237(a)(l)(A) of the Act (11/16/09 Tr. at 22-24). He further
suggested that the DHS "start all over again " and indicated that the section 237(a)(l)(B) charge
was "probably ...correct[,] ultimately " (11/16/09 Tr.at 34).

A091 359 621

On appeal, the OHS argues that the Immigration Judge erroneously terminated the
proceedings under the doctrines of res judicata, collateral estoppel, and the law of the case
(I. J. at 3). Exercising our de novo review authority, we agree. See 8 C.F.R. 1003.l (d)(3)(ii)
(the Board reviews issues of law, discretion, and judgment de novo). The law of the case
doctrine only applies to issues that have actually been decided. See United States v. Hatter,
532 U.S. 557, 566 (2001). Similarly, for collateral estoppel to apply, "there must have been a
prior judgment between the parties that is sufficiently finn to be accorded conclusive effect and
the parties must have had a full and fair opportunity to litigate the issues in the prior suit."
Matter of Fedorenko, 19 I&N Dec. 57, 61 (BIA 1984). Also, res judicata provides that a final
judgment on the merits will bar a subsequent action between the same parties over the same
cause of action. Channer v. DHS, 527 F.3d 275, 279 (2d Cir. 2008). These standards were not
met here. Although the York Immigration Judge commented during a hearing that he would
dismiss several of the DHS's charges and the section 237(a)(l )(B) charge was probably correct,
he did not make removability findings in an oral or written decision, as required under 8 C.F.R.
1240.12(a). Rather, before the York Immigration Judge entered a formal decision, venue was
changed to the New York Immigration Court. Moreover, the Immigration Judge who took over
the case then terminated the proceedings without prejudice. See Cooter & Gel v. Hartmarx
Corp., 496 U.S. 384, 396 (1990) (stating that a dismissal without prejudice is not an adjudication
on the merits).
We further agree with the DHS's argument that the Immigration Judge erred in terminating
the proceedings on the merits because the regulations explicitly provide that termination of a
respondent's temporary resident status returns him to the unlawful status held prior to the grant
of temporary residence (I. J. at 3-4). See 8 C.F.R. 1003.l(d)(3)(ii). The respondent's
temporary resident status was terminated automatically when he did not file for adjustment of
status from temporary resident to permanent resident using Form 1-698 within 43 months of the
date he was granted temporary resident status. 8 C.F.R. 245a.2(u)(l )(iv). The respondent
asserts that he is not subject to charges of inadmissibility under section 212 of the Act because
his grant of temporary resident status was an "admission" and termination of that status pursuant
to 8 C.F.R. 245a.2(u)(4), while returning him to unlawful "status," did not operate to nullify
the admission (Respondent's Brief at 18-24). We conclude that even if the respondent's
adjustment to temporary resident status constituted an admission, termination of that status
operated to revoke the prior admission based on the plain language of 8 C.F.R. 245a.2(u)(4).
See U.S. v. Hernandez-Arias, 757 F.3d 874, 881 (9th Cir. 2014). Furthermore, the text of the
3
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Subsequently, the DHS initiated the instant proceedings by serving an NTA on December 4,
2012, and the Immigration Judge who issued the decision under review took over the case
(Exh. 1). The OHS charged the respondent with removability under sections 212(a)(6)(A)(i) and
212(a)(2)(A)(i)(I) of the Act (I.J. at 2-3; Exh. I). The Immigration Judge determined that the
York Immigration Judge had already dismissed these charges in a full ruling, which the DHS did
not appeal (I.J. at 3). She thus held that the doctrines of res judicata, collateral estoppel, and the
law of the case bar the DHS from again seeking to remove the respondent on the same basis
(I.J. at 3). Furthermore, she agreed with the York Immigration Judge that the respondent should
have been charged with removability under section 237 of the Act because he was previously
granted temporary residence under section 245A(a) of the Act (I. J. at 3-4). For these reasons, the
Immigration Judge terminated the proceedings (I. J. at 3-4).

..
A091359 621

For these reasons, we will sustain the DHS's appeal, reinstate the proceedings, and remand
the record for a new determination of the respondent's removability pursuant to section 212 of
the Act. The respondent should also be permitted to apply for relief from removal, if necessary.
Accordingly, the following order is entered.
ORDER: The appeal is sustained, the proceedings are reinstated, and the record is remanded
for further proceedings consistent with this opinion and the entry of a new decision.

4
Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015)

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regulation does not support a finding that the respondent retained the benefits of his adjustment
to temporary residence despite termination of that status; if his "admission " were to remain in
effect, the respondent would not "return ... to the unlawful status held prior to the adjustment."
U.S. v. Hernandez-Arias, supra, at 881 (quoting 8 C.F.R. 245a.2(u)(4)) (emphasis in the
original). 8 C.F.R. 245a.2(u)(4) further specifies that termination of status renders an
alien subject to deportation proceedings. U.S. v. Hernandez-Arias, supra, at 881 -82. Thus,
"8 C.F.R. 245a.2 describes a limited form of status with no lasting immigration benefit."
U.S. v. Hernandez-Arias, supra, at 882. In this regard, the regulation specifically provides that
"[a]n alien whose status is adjusted to that of a lawful temporary resident under section 245A of
the Act is not entitled to . . . any [] benefit or consideration accorded under the Act to aliens
lawfully admitted for permanent residence." 8 C.F.R. 245a.2(v); see also U.S. v. Hernandez
Arias, supra, at 882. Therefore, we reverse the holding that the DHS did not properly charge the
respondent with removability under section 212 of the Act.

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A091 359 621 - New York, NY

Date:

MAY 182015

In re: JEAN ANDRE AINE a.k.a Jean Aine

I concur in the majority's decision that the doctrines

s judicata, collateral estoppel, and
the law of the case do not apply due to the lack of a
su 1 iently final decision by the York
Immigration Judge.
On the other hand, I respectfully dissent with regard to the majority's conclusion that the
Department of Homeland Security ("DHS") correctly charged the respondent with removability
under section 212 of the Immigration and Nationality Act, 8 U.S.C. 1182. In detennining an
alien's eligibility for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C.
1229b(a)(2), the Board has previously held that admission as a temporary resident constitutes
"admi[ssion] in any status/' Matter ofPerez, 22 I&N Dec. 689, 692 (BIA 1999). Furthermore,
an applicant for temporary residence must establish admissibility, see section 245A(a)(4) of the
Act, 8 U.S.C. 1255a(a)(4), and the Board has acknowledged that a threshold inspection for
admissibility is the sine qua non of an admission. Matter of V-X-, 26 l&N Dec. 147, 151 n.3
(BIA 2013). The DHS has cited no binding authority providing that a subsequent inability to
adjust to permanent residence would negate the prior admission as a temporary resident. Along
these lines, I would conclude that 8 C.F.R. 245a.2(u)(4) is distinguishable because it was
promulgated before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), replaced the previous definition
of the term "entry" with a new definition of an "admission." See Matter of Valenzuela-Felix,
26 l&N Dec. 53, 55 (BIA 2012). Moreover, that regulation merely references a return to
unlawful "status," and does not indicate that the alien is subject to the same deportabi/ity or
inadmissibility grounds that pertained prior to his admission.
Additionally, United States v. Hernandez-Arias, 757 F.3d 874, 881-82 (9th Cir. 2014), is not
binding in this matter, which arises within the jurisdiction of the United States Court of Appeals
for the Second Circuit. See Matter ofRivens, 25 l&N Dec. 623, 629 (BIA 2011). I disagree with
the Ninth Circuit's conclusion that once an admission has occurred, it can be undone or
"revoked" on the basis of subsequent events. Along these lines, even an admission obtained by
fraud may only be charged under section 237 of the Act, 8 U.S.C. 1227. In other words, in that
situation the Act acknowledges that an admission did occur and has not been undone, although
its circumstances render the alien removable. The majority's conclusion that an admission
nevertheless can be ''revoked" in the present (and, apparently, only the present) context is not

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

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CONCURRING/DISSENTING OPINION: Linda S. Wendtland, Board Member

A091 359 621

persuasive. Because the respondent's adjustment to temporary resident status pursuant to section
245A(a) of the Act constituted an admission, even though his later failure to comply with section
245A(b)(l)(A) caused him to lose legal status, I would dismiss the DHS's appeal and uphold the
determination that section 237 charges are required.

Linda S. Wendtland
Board Member

2
Cite as: Jean Andre Aine, A091 359 621 (BIA May 28, 2015) (Wendtland, concurring and dissenting)

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'
UNITED STATES DEPAr::rMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK
March 22, 2013

In the Matter of

)
)
)
)

JEAN ANDRE AINE

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Immigration and Nationality Act Section 212{a){6){A){i), Immigration

and Nationality Act Section 212{a){2){A){i){I).

APPLICATIONS:

Termination of proceeding.

ON BEHALF OF RESPONDENT: BRIAN MUNICH

ON BEHALF OF DHS: MELE MORENO

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Haiti. The respondent initially

came to the United States and entered illegally and the respondent was at one time a

temporary resident of the United States, such temporary residence having been granted
on March 7, 1989. The respondent subsequently applied to adjust his status to

permanent resident, April 7, 2000, which was denied and the respondent apparently

filed another application on January 9, 2006, for temporary residence which was denied

on July 27, 2006.

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File: A091-359-621

The respondent was initially placed in removal proceedings by issuance of

a Notice to Appear May 19, 2009, charging him with removability under Section

had committed a crime of moral turpitude. The Department of Homeland Security prior
to pleadings being taken, filed a first 1-261 on October 26, 2009, and a second 1-261 on

November 13, 2009, in which all charges under 212 were withdrawn by the Department

of Homeland Security and the Department of Homeland Security charged the

respondent with several different 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)(l)(I), 237(a)(2)(A)(iii) based on

I 101(a)(43)(M)(i) and 237(a)(2)(A)(iii) based on 101 (a)(43)(G). In the second 1-261, they
added the charge of 237(a)(1)(B) as an individual who had remained longer than
permitted.

In proceedings before Immigration Judge Walter Durling in York, there

was a full adjudication of the charges on November 16, 2009. In that hearing, Judge

Durling dismissed the charges under 212(a)(6)(A)(i), 212(a)(6)(B) and 212(a)(2)(A)(i)(I).

In addition, he dismissed the charges under 237(a)(1)(A) based on 212(a)(7)(A)(iii). He

dismissed the charge under 237(a)(1)(A) based on 212(a)(7)(B)(i)(l)(I). He dismissed

the charge under 237(a)(2)(A)(iii) based on 101 (a)(43)(M)(i) and dismissed the charge
under 237(a)(2)(A)(iii) based on 101(a)(43)(G). He sustained the charge under

237(a)(1)(B) which appears in the second 1-261 in that case.

The case was subsequently transferred to New York since Mr. Aine was

released on bond by Judge Durling and in proceedings before Immigration Judge

I Weisel, on consent, they were terminated without prejudice tfor the respondent to

pursue an adjustment application based upon the petition of his adult U.S. citizen son.
Subsequently, the Department of Homeland Security issued another Notice to Appear

A091-359-621

March 22, 2013

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212(a)(6)(A)(i), 212(a)(6)(D) as a stowaway and 212(a)(2)(A)(i)(I) as an individual who

dated November 7, 2012, marked as Exhibit 1 in the proceedings before this Court

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

The law of the case demands that those be dismissed. They have already

been dismissed by the Court in a full ruling that was not appealed in any way to the
Board of Immigration Appeals. It is both laws of the case, !raised judicata and

collateral estoppal. I believe all three probably apply to this. And I also note that the

Department itself recognized the flaw of the 212 charges before it was even adjudicated
before Judge Durling. But nonetheless, having listened to the full adjudication on

November 16, 2009, by Judge Durling of all those charges, and with a full analysis for

each of why those charges would not lie, the Court notes that as I stated when I first got

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

Judge Durling and which if the case was to be restored to calendar or restarted with a
new NTA, it is the only proper charge that lies before this Court.

The OHS was obviously a party to the proceedings before Judge Durling.

I believe that the only fair assumption that could be made with regard to this new NTA is

that there is forum shopping going on and that is not permitted. Law of the case is law
of the case. It is as binding on the Judge as it is on the parties and certainly they are

the same parties so it certainly would be collateral estoppal and res raised judicata. It
has already been adjudicated by the Court. And I fully agree with the statements of

Judge Durling, he notes that there is no question that the respondent's prior status as a
temporary resident had him residing in the United States under color of law. That the

adjustment to temporary residence or the awarding of temporary residence, although it

may not technically serve as an entry, it certainly is an adjudication of status and serves

as being an admission into a lawful status which is now expired unquestionably, that the

A091-359-621

March 22, 2013

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the Immigration and Nationality Act.

respondent no longer is amenable to proceedings in the nature of 212. And the Court

hereby adopts all of the reasoning of Judge Durling as set forth in his determinations of
There is a great deal more in his decision on the 237 charges but those

are not pending before the Court. I certainly also confirm that I fully agree with his

reasoning as to those 237 charges including the fact that proper removability can be

shown under 237(a)(1 )(8) and that respondentRe should be amenable to the

proceedings. So again, this is going to be a termination without prejudice as to 237

proceeding. but it is with prejudice as to any further proceedings under 21 2(6).

ORDER

Therefore, the Court grants the motion to terminate and issues this

decision today, March 22, 201 3.

Please see the next page for electronic

signature

NOEL A. FERRIS
Immigration Judge

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