Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
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Transcript of Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
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Fogle, H G enn Jr. EsqThe Fog e Law Firm, LLC4 Broad Street N W
e Grant Bui d ng Su te 700 Atlanta GA 30303
U S D p rtm t of J i
Executive O ce r Immig a on Review
Board ofImmig at on AppealsO ce of he Clerk
5107 Leesb rg P k , Suit 2000 Fal Ch ch V g n a 2204
OHS/ICE ce of Ch ef Co nsel ATL180 Spr g Street Suite 332 Atlan a, GA 30303
Name: FERNANDES, ALEXANDER GE A 097-644 4
Date of t s notice 7/16/20 3
Enc osed is a copy of he Boa d's decision and o der in he above-re e ced case.
Enclosu e
P l b :L b w E l CMann, AnaMu lan , ugh G.
S ncerely,
D cDonna Car Ch ef Clerk
sc ckec
Cite as: Alexander George Fernandes A097 644 447 (BIA July 16 2013)
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U Depa men of Justice Execut fve O ce r Imi ation Rev ew
Dec s on othe Board o m ation Appeals
Falls Church, V rg n a 2204l
Fi e: A097 644 447 -At n a, GA
In re ALEXD R GEORG FE A D S
REMOVA P OCEED GS
APP A
Date
ON B HA F OF R SPONDENT . Glenn Fogle, Jr Esquire
ON BEHA F OF D S Wy ly JordanAssistant hief Counsel
CH RG
JUL 16 20 3
Notice Sec 237(a)( )(A)&N Ac [8 U S C 1227(a)()(A)]nadmissible at ime of entry or adjustmen of status under
section 2 2(a)(6)(C)(i), &N Ac [8 U.S 82(a)(6)( )(i) -Fraud or will l misrepresentation of ateria ct
APP ICAT ON Te m na ion
he responden , a a l pe anent residen of the nited S ates, native of Ug nda andcitizen of ndia, appea s t e mmigration Judge's decision of October 31, 20 1 which sust ned
he Depar en of Ho e and Securi y s ("DHS s ) c arge or re ovabili T e appeal will sustained
We review r c ear e ror he ndings of ct including he de ermination of credibili ymade y the m igration Judge 8 C F R 00 . (d)(3)(i) We review de novo al o her isinc uding whether he pa ies ave met eir u den of p oof and issues of discretion 8 C F R 003I( d)(3)(ii)
he responden 's status was adjusted to hat of a aw pe anent resident onJanuary 27 2005 (Exh ) e D S al eges tha he respondent rocu ed adjus men of stby aud or by wi lly misrepresen inga ma erial ct, in hat the respondent
su m t ed or had submi ed n your eha a audulent o e e m e Pa m Supe rke indicating tha you were he Produce Manager when in ct youwere never emplo ed r salary by t e business s e er was used o suppo you
140 Petition r Alien Worker as i provided you he necessar work expe encequali as a Sk led Worker (requiring at leas wo years of specia ized work exper ence) or Profession under section 203(b)(3)(A)(i) of the Act (
We do no agree with e mmigra ion Judge s conclusion ha he D S me its bu denprove hat he responden is removab e There is no dispute hat the responden wor ed in
i 0 a c . < - : .
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A097 44 447
p oduce depa me t of e aba Pa m upe ma et The to e' owne Noe Debte t ed t at t e e po de t wa e p oduce ma age 2 yea om 199 to 2000 (T40; I at 2) A ough t e e po de t wa ot pa d a a y he ece ved oom"poc et mo ey e change e ce ( at 5 T at 6) The Im atp ope y dete i ed t at oom a d boa d "cou d be co de ed a a y unde t e aw (See Matter of Hall 1 & Dec 20 ( IA 19 2) (ho d g that a a e who e gaged
a ng activ t e o beha f of hi c u ch a d w o ece ved oom boa d a d poc ee wa emp oyed w th t e co temp at o of t e Act) It ow at t e DH ' a
aga t t e e po de t doe ot uppo t t e cha ge of emovab itySee id; C F R 00 5(a)
We di ag ee wit e Immig atio Judge additio a di g at e ob eta du e t becau e it wa "bac dated ( . at 5) A oted supra, t e to e owne te ti ed
co te t y wit e mate ia co te t of the ette a d co ed t at t e e po deemp oyed a a p oduce ma age du g the co ect t me pe od T e Immig at o Judge
d and we do ot co c ude t at t e bac dati g of e et e i a y way uegove e t' co ide atio of t e e po de t' app catio ad u me t of tatu T
a guage of the atute equi e at t e a d o wi m ep e e tat o be a "mate ia factectio 212(a)(6)(C)( ) of t e Act T e United tate Cou of Appea t e E eve t C
w e e t i ca e a i e equ e that t e aud mu t be be ieved a d acted upo by tdece ved to it "di adva tageSee Ort z-Bouchet v S A ' Gen714 F d 5 1 56 (1 thC 201 ) o be mate a t e m ep e e tatio mu t a o have a " atu a te de co [be capab e of ue c g t e deci o of he dec o m g body to whicadd e ed See Uni ed tates v. Bo l Rivera,607 F d 7 6 74 42 (t Ci 2010).We do
ot co c ude that t e e po de t' me emp oye dec ion to bac date the e te doc me t t e e po de t' emp oyme t meet i a da d mate ia ty1
T e bu de to ow that t e e po de t i emovab e o the H The ev de ce c ea d co v ci gSee C F R 240 (a) see also Woodby v. INS, 5 U 276 ( 966)
a ed o t eco d the H a ot met t bu de of p oof in t e e p oceed g At e appea u a ed a d t e p oceedi g aga t t e e po de t a e te m ated2
Acco di g y t e owi g o de wi be i ued
ORDER T e appea i u a ed
T e e po de t eve a empted to co cea t at e et e wabac dated(see at 2 at 6)
2 T e Immig at o udge oted that t e e po de t te t ed t at e obtai ed i tou i t e o e pu po e of comi g to t e U ted tate to ee emp oyme t ( at 6)Howeve i
i ue i ot be e u a d we wi ot add e it
2Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
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A097 644 447
FUR HER O ER T e Immi ation Judge's decision of October 31, 201 , is hereby vacated and espondent s emoval oceedings are terminated.
t Wl LR BOA
3
Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)
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(
U.S DEPARTMEN OF JUS ICEEXECU VE O ICE OR IMMIGRAT ON REVIEW
MMIGRATION COUR
Atlanta, Georgia
ile A 97 644 447
n the Matter of
ALEXANDER HERNANDES
Respondent
HARGE:
APP ICA IO :
A PEARANCES:
ON BEHAL O RES ONDEN :
Glenn ogle, r., Esquireogle aw Firm, C
44 Broad Street, N WSuite 00 Atlanta, Georgia 30303
))))
Date: October 3 , 0
IN REMOVA ROCEEDINGS
ON BEHAL O HE DEPAR MENO HOME AND SECURITY:
Wylly . Jordan, III, Esq ire0 Spring Street
Atlanta, Georgia 30303
ORA DECISION O THE MMIGRATION UDGE
his matter comes on for a hearing on the 3 st day of
Octo er, 20 , upon the Department's necessary obligation to
establish the factua a egations as noted in the Notice to
Appear
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o to a s hea ng, t e following ocu ents a e note
as exhibits Exhibit # is the Notice to Appea Exhibit # is
the I- 3 with its attach ents, pages note as th ough 3
Exhibit #3 is Respo e t s supplemental exhibit list in suppo t of
the hea i g to a
The pa ties t at testifie to a we e pecial Agent
Kevin Hee lei a that s an ICE agent, Depa t ent of Ho ela
ecu it ; also the Respon ent, Alexan e e na es, testifie ; a
as well, Noel Deb aganza an the testimo of the Respo e t s
b othe was p offe e , that being that his a ange e t is,
essentiall , the sa e as the Respon e t s a ange ent to wo k fo
Noel Deb aganza at the abal Palm upe a ket
In this matte , pecial Age t Kevi Hee lei test fie
that he spoke with the Respon ent p io to the Notice to Appea
being issue T e ate of issuance of the Notice to Appea is
a ch 4, 0 The ate of action, as ote b the I- 3, was
a ch 4, 0 at the location he e in Atlanta It was note that
o a ch t e 5th of 0 , the Respo ent was encounte e b the
H I ecial Age ts Hee le n an wens of the Atla ta, eo gia
Docume t an Benefit au Task o ce It was note that M
e nan es, the Respon e t in this atte , was the subject of a
ongoing investigation in his p ocu ement of an E-36 ig ation
visa b f au o willful mis ep esentation of ate ial fact
As cate , on eptembe the st, 0 0 that the H I
pecial Agent Hee le n a pecial Agent o gan encounte e the
A 9 644 44 ctobe 3 , 0
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(
Respon ent at USC S o fi e lo ate at 50 Pa k ake D ive,
No t east, Atlanta, 30345. Fu t e note , t e ig a ion
Atto ney Raymon Rampe sa i e a G- , as t e atto ney of
e o , in t e fi ing o an - 40 Petition o Alien Wo ke i e
on Fe nan es be a by Unive sal nvestments an Asso iates, as
well as t e 4 5 app i a ion to egiste pe manent esi en e o
a ustment of status i e by t e Respon ent
At a p io Maste Ca en a ea ing on Ap i t e 5t ,
0 in t is matte , it was note t at a legations one t oug
ou we e a mitte by t e Respon ent Respon ent enie
a egation numbe ive T is allegation states as ollows
" S . You pro cured your admi ssion, vi sa, a djustment or
ot e o umentation o bene it by f au o by will u y
misrepres ent ing a m ate rial fac t, to wit: you submitte o a
submitte on you be al , a au u ent ob ette om t e Saba
Pa m Supe ma ket in i ating t at you we e t e p o u e manage ,
w en, in a t, you we e neve emp oye o sala y by t e business.
T is ette was use to suppo t you I- 40, Petition o Alien
Wo ke , as it p ovi e you t e ne essa y wo k expe ien e to
qua i y as a ski e wo ke ( equi ing at east two yea s o
spe ia ize wo k expe ien e) o p o ession un e Se tion
03 (b) (3) (A} (i) o t e A t "
T e Respon ent enie t is al egation an a onteste
Maste ea ing was t en set fo to ay s ate, tobe 3 , 0
T e Respon ent u t e enie emovability un e Se tion
A 9 44 44 3 tobe 3 , 0
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37 (a) ( ) (A) of the mmigrat o a d Natio a ity Act (Act) , as
ame ded, i t at, at t e time of e try or adjustme t of status,
you were withi o e or more of t e c asses of a ie s i a ssib e
by t e aw existi g at such t me, to wit a ie s who seek to
procure or w o ave soug t to procure, or who have procured a
visa, or ot er docume tatio , or admissio i to the ited States,
or ot er be efit prov ded u der t e Act, by fraud or by wil fu
misreprese ti g a materia fact, u der Sectio (a) 6) C) (i) of
the Act.
he testimo y from t e Respo de t today i dicates that
he arrived i November, 99 at iami, orida a d i ediate y
bega to work for r. Noe Debraga a He i dicated that the
perso that e worked for cou d ot afford to pay im i his
supermarket busi ess but gave im a job i stocki g s e ves a d
mai tai i g produce, a d t e t e supermarket ow er furt er
testified that the Respo de t was a produce ma ager h s
e tai ed chec i g the produce as it came i a d maki g sure it was
priced correct y, a fu ct o w ich t e supermarket ow er the
ater verified to make sure that t e prici g was proper. e
Respo de t i dicated he worked from 7 00 i the mor g u ti
0 00 at ight, seve days a week He i dicated that he received
room a d board a d some pocket mo ey" from t e supermarket ow er
e Respo de t a d t e supermarket ow er were re ated by virtue
that i t eir fam es, appare t y had some sisters that were
married a d t at co ected t e two fami ies together. hey k ew
A 97 644 447 4 October 31, 0
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each othe n thei home count of ndia
he Res ondent ind cated that he obta ned a tou st B
v sa fo the u ose of com n to the n ted States to wo k h s
was h s test mon his was a tou st v sa, not a v sa such that
would allow h m to wo k he two ma n o nts of the test mon
toda would hin e on the fact that the Res ondent is alle ed and
he, essent all , sa s he was neve em lo ed fo sala he
test mon ndicates the Res ondent eceived a small ocket mone "
and oom and boa d This s not the fatal fact in th s case, as
ov din oom and boa d could be conside ed a sala unde the
law Howeve , the e s eat cont ove s e a din the so-called
ob lette f om Sabal Palm Su e ma ket ind cat n that the
Res ondent was a oduce mana e
Now, th s lette , acco din to the Res ondent s
test mon , was e uested n 00 His test mon was that the
lette was e a ed afte Novembe the st, 000 and the lette
was dated Novembe the st, 000 H s test mon s that the
lette was ene ated afte the date of the lette and that the
lette was backdated h s was to ve f h s wo k n elat onsh
with the su e ma ket and to be offe ed in the ove all ocess of
the - 40 Now, to sa whethe the lette is f audulent, it s
mo e l kel the Cou t cha acte ize this as a lette that was
e a ed afte the fact and backdated, as s the test mon
eflected b the S ecial A ents' investi ation of the Res ondent s
wo k n a an ement and b the Res ondent s test mon
A 97 644 447 5 Octobe 3 , 0
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w, the supe ma ket wne can't emembe exact when
that lette was p epa ed but he maintains the ette is n t a
f audu ent ette . he ette misstates and mischa acte izes the
c mplete sc pe and c mpass f the Resp ndent's w k. Whi e it
c u d be a gued that m and b a d might equate t a sala y, it
in n way affects the fact that the ette was dated vembe the
st, 000 and that this lette was p epa ed afte the fact and was
fa se And the statements c ntained n the face f that ette ,
given the testi n f the witnesses and the Resp ndent t da ,
th se fa se statements, as c ntained n that ette , Exhibit 2,
page 3, we e used in the p cess f btaining a ab
ce tificati n a d in use f the I 0 p cess.
he C u t, the ef e, wil sustain the Depa tment s
a legati n numbe five t the extent that it has been estab ished,
b c ea and c nvincing evidence, as he et f e menti ned, the
Resp ndent p cu ed his a issi n, visa, ad ustment the
d cumentati n benefit by f aud b wi ful mis ep esenting
a mate ial fact, t wit he had submitted n his beha f, and the
C u t w uld n te he e, this b lette which c ntained fa se
statements f the pu p ses f use in his I 0, Petiti n f
Alien W ke
t's fu the n ted that in his testim n t day, the
Resp ndent admitted that he btained his t u ist visa f the s le
pu p se f c mi g t the nited States t w k at his elative s
business and this is a pa t f f aud in and f itse f and
A 9 Oct be 3 , 0
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(
knowingly and willfully misrepresented t e purpose for w ic e
came to t e United tates. Certainly, t e epartment, s ould t ey
wish to amend a legation five, could do so but the Court does not
find t at to be fatal to allegation number five because, in the
overall totality of circumstances, the Respondent did obtain his
admission, did obtain is visa and ad supplied ot er
documentation by willfully misrepresenting t e material facts, as
contained in t e letter of ovember the st, 2000, and, as well,
in is testimony today in regard to his purposes for coming to t e
United tates as a tourist visa w en, in fact, e soug t solely to
come to work and earn money in t e United tates
e Court also noted t at the letter, referenced by t e
supermarket owner, t ere was a statement in his testimony, e said
that e could not pay him but that he could work t ere and get his
certificate to go to work for somebody else. ere's some
language in t at statement that troubles t e Court and t at's t is
overall process of how you can accumulate w at documents you need
to get approval for w at mig t be ot erwise lawful employment.
The Court firmly believes t e letter was prepared and then
backdated based upon t e evidence in the case today and,
t erefore, allegation number five will be sustained
, JR ,igration Judge r
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R I I A PA E
rI
I e e e t t at t e atta ed pro eed ng efo e
WAYN SER, JR , n t e matter of
ALE AN ER ERNAN ES
A 97 644 447
At anta, eo g a
wa eld a e e n appea , and t at t t e o g na
t an r pt t e eof o t e f e o t e Exe t ve e o
I grat on Rev ew
JLN/ JN
Janetta L N e en, an ber
Y RK S EN RAPHI S RVI S, IN34 No t eo ge StreetYo k, Penn van a 740 - 66(7 7) 854-0077
Jan a 0 0 2
omplet on ate