Professional Documents
Culture Documents
Department of Justice
A 092-966-446
Date of this notice: 7/6/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
DoYUtL caAA)
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Connor, Blair
Adkins-Blanch, Charles K.
Mann, Ana
Userteam: Docket
Date:
JUL - 6 2016
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Michelle Esther Gonzalez, Esquire
APPLICATION: Application for registry under section 249 of the Act, adjustment of status
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
April 17, 2015, decision denying his application for registry pursuant to section 249 of the
Immigration and Naturalization Act, 8 U.S.C. 1259. The respondent also submits new
evidence on appeal. The Department of Homeland Security (DHS) did not file an appeal brief.
The record will be remanded for further proceedings.
The Immigration Judge pretermitted the respondent's application for registry, ruling that
the respondent did not establish his entry into the United States before January 1, 1972, his
continuous residence since entry, or that he is not inadmissible under section 212(a) of the Act, 8
U.S.C. 1182. The Immigration Judge did not accept the respondent's witness list or permit
witness testimony because the respondent did not submit declarations or summaries of witness
testimony in compliance with the Immigration Court Practice Manual. The respondent argues on
appeal that his witness list, which specified that each witness would discuss his continuous
residence, good moral character, and rehabilitation, contained sufficient information regarding
the testimony of his witnesses. He further argues, among other things, that the Immigration
Judge violated his due process rights by not allowing him to present witness testimony in support
of his application.
We conclude that the Immigration Judge should have permitted the presentation of
witness testimony in support of the application for registry under section 249 of the Act. The
respondent was in substantial compliance with the Immigration Court Practice Manual when he
presented a witness list that outlined specific areas of witness testimony. Among other evidence,
the respondent also presented a letter from one of the witnesses that further expanded on the
scope of her potential testimony. Thus, while we make no determination as to the merits, we
find that a remand for the presentation of witness testimony in support of the application is
appropriate in this case. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994) (due process for
an immigrant in deportation proceedings includes the right to a full and fair hearing).
On remand, the Immigration Judge also should consider the new evidence presented on
appeal and provide the respondent with an additional opportunity to submit further evidence in
support of the application. Further, the Immigration Judge should also consider whether the
Cite as: Elias Galvan, A092 966 446 (BIA July 6, 2016)
In re: ELIAS GALVAN a.k.a. David M. Dominguez a.k.a. David Matthew Dominguez a.k.a.
David Dominguez a.k.a. Elias Leo Galvan a.k.a. Galvan Elias a.k.a. Leo Galvan a.k.a.
David Mathew Dominguez
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion.
2
Cite as: Elias Galvan, A092 966 446 (BIA July 6, 2016)
In the Matter of
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ELIAS GALVAN
RESPONDENT
IN REMOVAL PROCEEDINGS
CHARGE:
APPLICATION:
Registry.
File: A092-966-446
Mexico as the country of removal should that become necessary. Based upon the
respondent's admission, See Exhibit 2, I do find that he is removable by evidence which
evidence of residency. That is also in the record, submitted by the respondent with his
application. The sister's letter indicates that the parents have both passed away. The
does not give a date. And that she does not have any access to the paperwork that the
father had because he remarried and they do not have a good relationship with his
second wife. And that they do not have documents to prove that he was continuously in
the United States since shortly after he was born. That the documentation would have
included vaccination records and medical records, as well as photographs. And her
letter indicates further that she was 11 years old when her brother was born and she
can attest to the fact that he has always lived with them in the United States.
The Court finds that the respondent is unable to establish eligibility for registry.
Section 249 of the Act requires that the respondent establish that he entered the United
States prior to January 1, 1972; that he has had his residence in the United States
continuously since such entry; is a person of good moral character; and is not ineligible
to citizenship; and is not deportable under 237(a)(4)(8). In addition, the respondent
must satisfy the Attorney General that he is not inadmissible under Section 212(a)
insofar as it relates to criminals.
In this case, the Court finds that the respondent's application is pretermitted and
denied because he has failed to establish continuous residence in the United States.
He has failed to establish that he entered the United States prior to January 1, 1972,
and that he has continuously resided here since such entry. And he has failed to
establish that he is not inadmissible under Section 212(a)(2), crime involving moral
turpitude.
In this case, turning first to the issue of entry, the respondent submitted a copy of
his birth certificate which shows that he was born December 23, 1971. That means that
A092-966-446
mother passed away in October of 1982. The father passed away also, although she
he would have had to have entered the United States within a few days of being born or
a week of being born in order to qualify for registry. The respondent has presented no
that he entered prior to January 1, 1972. She says that the family immigrated to the
United States in 1966 and that the respondent has always lived with them in the United
States except the respondent was born in Mexico in 1971. She does not indicate when
he crossed the border, how old he was when he crossed the border and her letter is
insufficient to establish that he entered before January 1, 1972. She indicates in her
letter that they do not have access to documentary evidence to prove it and
unfortunately the respondent has the burden of proof. Her letter also does not provide a
lot of details. We do not know the exact date that he entered the United States, where
she was when he was born, when he crossed the border, how she knows or can recall
what date it was that he crossed the border. Her letter has no specific information
regarding that and by itself is insufficient.
It is also insufficient in connection with all the other documents the respondent
submitted. Although he submitted some documentation of being in the United States,
he has not presented evidence to establish that he has continuously resided in the
United States since January 1, 1972. He has presented some evidence of some school
records, but it does not cover of all the years or even all of his school years. There are
no graduation certificates. There is no work records. There are no medical records.
There would have had to have been some kind of immunization record. He has
presented nothing. The respondent's documentary evidence is severely lacking and he
has the burden to prove his eligibility.
The regulations at 8 C.F.R. 1249.2 indicates that the application must be made
on a Form 1-485 and accompanied by a Form G-325A. The respondent did not submit a
A092-966-446
evidence of entry prior to January 1, 1972. His sister's letter is insufficient to establish
G-325A. He did submit the 1-485. The application shall also be accompanied by
documentary evidence establishing continuous residence in the United States since
A092-966-446
prior to January 1, 1972. All documents must be submitted in accordance with 103.2(b).
not submitted any waiver application and the Court finds that he has not established his
eligibility for registry under 249 and his application for registry is, therefore, pretermitted
The respondent's case was scheduled for today's hearing on August 26, 2014.
The Court finds that respondent has had ample opportunity to prepare his case and has
failed to submit sufficient evidence of his eligibility. Accordingly, the Court is
pretermitting and denying his application on the basis that he has failed to establish
statutory eligibility for the relief he seeks.
The only other relief pending before the Court is voluntary departure in the
alternative. This is a minimal form of relief. The Government indicates they would not
appeal a grant of voluntary departure. It is a discretionary application. The respondent
has established statutory eligibility. And while there are adverse factors present in his
case, there are also positive factors in his case and on balance, the Court will grant the
minimal form of relief of voluntary departure.
ORDER
IT IS ORDERED that respondent's application for registry be denied.
IT IS FURTHER ORDERED that the respondent's application for voluntary
departure be granted.
The respondent is to depart the United States voluntarily and at his own expense
on or before June 16, 2015. If the respondent remains in the United States after June
16, 2015, without permission of the Department of Homeland Security, then the Court's
order will automatically convert to an order of removal and deportation to Mexico.
The respondent must pay a $500 voluntary departure bond with the Department
of Homeland Security Immigration and Customs Enforcement Field Office Director
within five business days of today's date.
A092-966-446
and denied.
If the respondent appeals this decision, he must provide the Board of Immigration
Appeals within 30 days of filing an appeal sufficient proof that he has posted the
its final order if the respondent does not submit timely proof to the Board that he has
paid the voluntary departure bond.
If the respondent does not appeal but instead files a motion to reopen or
reconsider during the voluntary departure period, the period allowed for voluntary
departure will not be stayed, tolled or extended, the grant of voluntary departure will be
terminated automatically, the alternate order of removal will take effect immediately and
the penalties for failure to depart will not apply.
There is a civil monetary penalty if respondent fails to depart within the voluntary
departure period in the presumptive amount of $3,000.
ROSE PETERS
Immigration Judge
A092-966-446
voluntary departure bond. The Board will not reinstate the voluntary departure period in