Вы находитесь на странице: 1из 13

Valerie A.

Zukin, Esquire
.b. Dcarlmcnl0fJuslicc
Executive Offce fr Imigration Review
8oaraof Ioolgratlonappea/s
Ojceoft/eC/er|
J1J7I000rgtM, 0l/0JJJJ
0 L0urCh, l@l0l0 JJJJ
Van Der Hout,Brigagliano Nightingale,
LLP
OHS/ICE Ofice of Chief Counsel - REN
3373 Pepper Lane
Las Vegas, NV 89120
180 Sutter Street, Fifh Floor
San Francisco, CA 94104-0000
Name: RIVAS, MARIA IRERI A 089-573-062
Date of this notice: 10/18/2013
Enclosed is a copy of the Board's decision ad order in the above-refrenced case.
Enclosure
|dDe MeHDCI5.
MSl, NS |.
Sincerely,
|/ CO
Donna Carr
Chief Clerk
Iuca8d
U5eILedH. CCKS!
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Maria Ireri Rivas, A089 573 062 (BIA Oct. 18, 2013)
.b. Dcartmcnt0fJusticc
Executive Ofce mrImmigation Review
Decision of the Board oflmmigation Appeals
Falls Chuch, Virginia 41
File: A089 573 062 - Reno, NV
In re: MARIA IRRI RIV AS
IN RMOVAL PROCEEDIGS
CERTIFICATION
Date:
ON BEHALF OF RESPONDENT: Valere A. Zukin, Esquire
ON BEHALF OF OHS: Wayne H. Price
Assistat Chief Counsel
APPLICATION: Reconsideration
UCT
l0
Tis matter was last befre us on June 24, 2013, when we grated te respondent's
motion to reopen and remanded the record to the Immigation Judge fr fher proceedings.
Te Deparent of Homelad Security ("DHS") has fled a motion to reconsider. The motion to
reconsider will be denied as untimely.
A timely motion to reconsider was due on or befre July 24, 2013. Section 240(c)(6)(B)
of te Immigration ad Nationality Act, 8 U.S.C. 1229a(c)(6)(B); 8 C.F.R. 1003.2(b)(2).
The Board received te DHS's motion to reconsider on July 26, 2013. We observe tat the
motion and the proof of serice ae both originally dated July 25, 2013, 1 day aer te due date.

The DHS did not provide any reasons fr the late fling and did not submit a motion to accept te
late fled motion to reconsider. Te DHS's concers regarding the decision to remand may be
presented to te Immigration Judge.
Accordingly, te fllowing orders will be entered.
ORDER: The DHS's motion to reconsider submitted on July 26, 2013, is denied as
untimely.
FURTHER ORDER: Pusuant to our June 24, 2013, decision, the respondent's motion to
reopen is granted, the proceedings ae reopened ad the record is remaded to te Imigration
Judge fr frher proceedings and te ent of a new decision.
tL
Fo THEsoAR
.
. - " . ... , ......
R
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Maria Ireri Rivas, A089 573 062 (BIA Oct. 18, 2013)
Y
.
P Lt

\b Pb btPMbN b Lb

bXLVb bbLb b MN1LPN bVW


MMUPN L
`
b b tbttb Lb Z

LPb NbLP N bJZ

. ... .
f
NJLH b Wbb, bQ
9b PVt1b bb # b Jb
bN N bbZ
BCO' PU@ ZJ
b3O Pbb^Z
1O CDO MBCCOT OT'
VP MP 1b

. .. . . .
'
PCCBCDOO 3B B CO_ OT CDO wT3CCOD OOC3B3OO OT CDO 003@TBC3OO UO@O.
D3B OEC3B3OD 3B T3OB UOOBB BO BOB ie CBKOO CO CDO OBTO OT
1003@TBC3OD POBB DO OOCOBOO CO3OB OT bM b Zb
NOC3CO OT POB BOO bM b Z NOC3CO OT bDCT_ BB PCCOTDO_ OT
OTOBODCBC3VO TOOTy OOCUCEO 0UBC be 3OO w3CD CDO OBTO OT
1003@TBC3OD POBB OD OT OOTOTO
DO BOB 0UBC OO BCCO0BO3OO by TOOT OT B3O TOO (\}
bOCOBOO 3B COy OT CDO OTB OOC3B3OO
bOCOBOO 3B B CTBOBCT3C OT CDO COBC30OO_ OT TOCOTO
YOU BTO @TBDCOO UOC3 CO BUO03C OOT
CO CD3B OTT3CO 3D BUOTC OT _OUT BO

OB3O@ COUDBO 3B @TBOCOO UOC3 03C B
OT3OT 3D OOB3C3OO CO CDO BOB

COBOO 3B CO_ OT CDO OTOOT/OOC3B3OO QT CDO

` 03@TBC3OO UO@O
P BOTB T3JEO w3CD CDO LOUTC BDBJ OOBCCO0BO3OO O_ TOO
OT BOTV3CO UOD OOB3D@ COUOBO.
U
4
.
. ' '
.

.
t
` ., .
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

'
.

,t
.

.

!
.. ... `
Ub LbVPHNbN b UbLb
bXbLVb LbbLb b MMGHPN HbVW
D CDO NBCCOL O1'
HVPb MP HbH
HbNLN
NMGKJN LUH
VbVbH Lb bUb 2
L VbGPb M d2
LBBO NO' P~'p2 ^

.
N HbMVPl HLb
. .
HLbH b Hb MNGKN LGb

DO 1MM1@LBC1OD LOULC ODCB1DOO _UL1BO1CC1OD 1D D1B MBCCO ZLBBDC CO
B TOMBDO 1LOM CDO UOBLO O1 JMM1@LBC1OD PQQOB1B bUDBOQOD CO CDO
LOMBDO B MOC1OD CO HOCODB1OOL O1 CDBC LOMBDO wBB 1OO WJCD CDO
UOBLO DUB CDO HOCOTO O1 LOCOOO1D@B 1B DO
L b
bOTM bH 7 "
JMM1@TBC1OD UO@O
LBCO1 PU@ 2

.
."
, .
.

~m
.'
.
. .
l
l
r
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
U. S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION REVIEW
IMIGRTION COURT
File A 89 573 D
In the Matter of
MARIA IRERI RIVAS
Respondent
CHARGES:
APPLICATION:
APPEACES:
Las Vegas, Nevada
Date: March 30, 2011
IN REMOVAL PROCEEDINGS
Sections 237 (a) (1) (D) (i) ; 237 (a) (3) (D) (i) ;
237 (a) (1) (A) ; and Section 212 (a) (6) (C) (i) (I)
of the Immigration and Nationality Act of
1952, as amended (Act)
Contested charges
ON BEHLF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELD SECURITY:
F. Woodside Wright, Esqire
Nevada Hispanic Services
3905 Neil Road
Reno, Nevada 90502
Wayne H. Price, Esquire
Assistant Chief Counsel/ICE
Nevada 89120
OR DECISION OF THE IMMIGRTION JUDGE
1
I . Background
The Respondent in these proceedings, who is married, was
placed in proceedings on March 10, 2010, with issuance and service
LOCOOO1D@B wOLO CODOUCTOO ODT1LO1y 1D bD@11BD w1CDOUT TDO UBO O1 BD
1DTOLOCOL.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
by regular mail on.the same date of a Notice to Appear alleging
that the Respondnt is a native and citizen of Mexico and not a
citizen or national of the United States. She was admitted to the
United States at McAllen, Texas, Point of Entry on or about April
5, 2004, as a nonimmigrant B-2 visitor. Further, that on May 16,
2007, her status was adjusted to that of a permanent resident on a
conditional basis based on her marriage to a United States
citizen. Further, that on February 26, 2009, she filed a form
I-751 to remove the conditions on her residency, which was denied
on July 13, 2009; but that on June 5, 2009, she filed another for
I-751 to remove the conditions of the residency, which was also
denied on January 14, 2010. Finally, the Notice to Appear at
Exhibit 1 asserts in factual allegation six, that on July 6, 2004,
she represented herself to be a citizen of the United States for
the purpose of admission as a student at the University of Nevada
at Reno, Nevada. The original Notice to Appear included two
charges: Section 237 (a) (1) {D) (i) vis-a-vis Section 216 of the
Act; and Section 237 (a) (3) (D) (i), in that an alien who has falsely
represented herself to be a citizen of the United States for any
purpose or benefit under the Act or a Federal or State law. See
Exhibit 1.
At a Master Calendar hearing conducted on July 13, 2010,
through counsel Respondent admitted factual allegations one
through five but denied factual allegation six. She admitted the
237 (a) (1) (D) {i) charge, but denied the Section 237 (a) (3) (D) (i).
A 89 573 062 2 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
On September 13, 2010, counsel for DHS filed an
additional set of, charges alleging a violation of Section
237 (a) (1} (A} vis-a-vis Section 212 (a) (6} (C) (ii) (I) of the Act,
otherwise seen as Exhibit lA. In addition, counsel for DHS
provided documentation in support of the two additional charges in
the I-261 of September 13, 2010, which is included at Exhibit 2 to
this Record of Proceedings.
A contested hearing was then scheduled with the Court
for November 19, 2010, but then was rescheduled on March 30, 2011,
due to the lack of security at the Department of Homeland Security
building in Reno, Nevada, which necessitated the matter be reset
from November of 2010 to March 30, 2011.
On March 30, 2011, the Court conducted a contested
Merits :hearing in these proceedings from which the Court made a
determination to sustain the denied factual allegation six and the
denied three charges, resulting in counsel for the Respondent
reserving appeal, whereas, DHS counsel waived appeal.
This oral decision followed a few minutes thereafter.
II. Testimony and Other Evidence
No testimony was taken from any witness at the Merits
hearing. The Court addressed the inadmissibility of three sets of
exhibits which were admitted into evidence by the Court as
follows: Exhibit 1, the NA of March 10, 2010, admitted; Exhibit
lA, the I-261 filed on September 13, 2010, admitted; Exhibit 2,
the DHS submission, documentation to support the new charges and
A 89 573 062 3 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
deny factual allegation six in the NTA; and Group Exhibit 3, the
subpoena issued on August 12, 2008; and a copy of the documents
received from the University of Nevada at Reno by the DHS/ICE
Homeland Security Investigations, which was marked only as it was
submitted today as untimely. Counsel for the Respondent objected
to the inclusion on the record of Group Exhibit 3, but as the
Court noted it is the standard policy and practice of this
Immigration Judge to receive documents at the time of Merits
hearing which are marked but not admitted. The parties are
peritted to rely upon them and the Court them defers to the BIA
and the Ninth Circuit Court of appeals as to what consideration,
if any, to give to such documents other than the fact that they
are now part of the record.
No testimony was taken from any witness. Rather,
argument was made by both counsel regarding the denied factual
allegation six and the denied three charges. DHS counsel argued
that the documents submitted at Group Exhibit 3 and in Exhibit 2
demonstrate the false finding of citizenship for the Respondent.
He indicated that the Motion to Suppress filed by counsel of the
Respondent really relies upon conduct by the University of Nevada
at Reno, not the Department of Homeland Security, which conducted
its investigation in accordance with applicable federal law.
Further, he argued that it appears that the University of Nevada
at Reno did not violate its ow privacy policies, nor was there
any evidence of egregious conduct by DHS, and therefore there's no
A 89 573 062 4 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
right to suppress tpe documentation under Exhibit 2 and Group
Exhibit 3. Similarly, that the documents at Exhibits 2 and 3
support factual allegation six and the three denied charges.
Counsel for the Respondent argued that Respondent
objects to the inclusion of Group Exhibit 3 even if it is only
marked. Further, the federal statutes imposed upon UNR are
responsibility to not release the records in question and that U
allowed and encouraged the Respondent to check the U.S. C. box on
her application, which is at Exhibit 2, even though she provided a
copy of her Mexican birth certificate, which is also a part of the
record. Therefore, he argues that on this record the charge
cannot be supported using a criminal investigation conducted by
DHS.
DHS counsel then stated that ICE Homeland Security
Investigations conducted the investigation in accordance with
federal law and it fully complied with federal law.
The Court incorporates by reference in its individual
decision the analysis and arguments made by both counsels
reflected in the transcript of the hearing of today.
III. Credibility Determination
No testimony was taken from any witness; therefore, the
Court is unable to make and declines to make any credibility
determination in these proceedings.
IV. Contested Factual Allegation Six and Charges
The Court agrees with the arguments made by Government
A 89 573 062 5 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
counsel first regarding factual allegation six. Factual
allegation six mrely states that on July 6, 2004, the Respondent
represented herself to be a citizen of the United States for the
purpose of admission as a student to the University of Nevada at
Reno, Nevada, by checking box 27 on her admission application
claiming to be a United States citizen. But the Court noted
applicable case law makes clear that an individual, whether a
lawful permanent resident or otherwise a nonlawful peranent
resident, who falsely represented himself or herself to be a
United States citizen has committed a non-waivable ground of
inadmissibility. The false representation occurred on or after
September 30, 1996. In this instance, since it occurred in 2004,
it occurred on or after the enactment of Public Law 104-208
(September 30, 1996) . For this purpose the Court cites Pichardo
vs. INS, 216 F.3d. 1198 (9th Cir. 2000) ; Blanco v. Mukasey, 518
F. 3d. 714 (9th Cir. 2008) , citing Pichardo v. INS supra; and
Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009).
Finally, with regard to the argument made that the
conduct of the Government was egregious or affirmative misconduct
regarding the subpoena issued to the University of Nevada at Reno,
there is no evidence of egregious conduct by the Government, since
that the Fourth Amendment exclusionary rule is inapplicable in
these removal proceedings consistent with INS . Lopez-Mendoza,
468 U.S. 1032 (1994) ; Matter of Sandoval, 17 I&N Dec. 70 {BIA
1979) ; Matter of Barcenas, 19 I&N Dec. 609 (BIA 1998) and earlier
A 89 573 062 6 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

.
cases cited therein To demonstrate a due process violation, an
alien must satisfy two criteria consisting of articulation of an
identifiable due process violation and demonstrate prejudice as a
result of that violation, such as showing a plausible ground for
relief and deportation/removal for which the alien is otherwise
eligible to apply in accordance with United States v. Muro-Inclan,
249 F. 3d. 1180 (9th Cir. 2001) . In this instance, there is no
evidence of such a violation. Finally, the Court notes that when
the individual, in this case the Respondent, declines to testify
regarding the Motion to Suppress, the Court may draw a negative
inference from refusal to testify when evaluating the evidence of
the motion in accordance with United States v. Solano-Godines, 120
F.3d 957, 962 {9th Cir. 1997) ; and Matter of Guevara, 20 I&N Dec.
238 {BIA 1991) .
Finally, the doctrine of equitable estoppel applies
against the Federal Government only when affirmative misconduct
had been demonstrated to the moving party, and that has not been
demonstrated here in accordance with Cortez-Felipe v. INS, 245
F. 3d 1054 {9th Cir. 2001) ; Sulit v. Schiltgen, 213, F.3d. 449 {9th
Cir. 2001) ; and Matter of Hernandez-Puente, 29 I&N Dec. 335 {BIA
1991) .
Accordingly, the Court concludes that the Government has
legitimately demonstrated that the Motion to Suppress should be
denied and that there was no due process violation or egregious
conduct conducted by any federal officer or employee.
A 89 573 062 7 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Accordingly and after consideration of arguments for the
parties and all documents in the record of proceedings, the Court
will sustain factual allegation six on the NTA. The Court also
sustains the Sections 237 (a) (3) (D) (i) , 237 (a) (1) (A) , and
212 (a) (6) (C) (ii) (I) charges in the NTA as amended by the I-261 at
Exhibit lA.
Because no relief has been otherwise presented to the
Court by the Respondent through counsel, the following orders are
issued in these proceedings.
ORDER
IT IS HEREBY ORDERED that the Court has sustained
factual allegations six and three denied charges in the NA as
amended by the I-261.
IT IS FURTHER ORDERED that the Respondent is ordered to
be removed from the United States to Mexico.
IT IS FURTHER ORDERED that these proceedings be
concluded, closed, and adjourned.
A 89 573 062
HARRY L. GASTLEY
| "
..
Immigration Judge
4PN}L 0J
8 March 30, 2011
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
H Y L. GASTLEY, in the matter of:
MRIA IRERI RIVAS
A 89 573 062
Las Vegas, Nevada
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
DSH/BJN
Deborah S. Brown, Transcriber
YORK STENOGRPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
May 18, 2011
Completion Date
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t