Kone, Ahoua, Esq.

U.S. Department of Justice

Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
4444 Woodland Park Ave N., Suite B-101
Seattle, WA 98103-7 429
OHS/ICE Ofice of Chief Counsel - SEA
1000 Second Avenue, Suite 2900
Seattle, WA 98104
Name: MOUNG, ATHIKAR A 079-196-338
Date of this notice: 7/
18/
2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Creppy, Michael J.
Mullane, Hugh G.
Mann, Ana
Sincerely,
Do c t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Athikar Moung, A079 196 338 (BIA July 18, 2014)
U.S. Dep:Dent of Justice
Executive Ofce fr Imigration Review
Decision of te Boad of Iigation Appeals
Falls Chuch, Virginia 20530
File: A079 196 338-Seatle, WA
In re: ATHIKAR MOUNG
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Ahoua Kone, Esquire
CHARGE:
Notice: Sec. 237(a)(l)(B), l&N Act (8 U.S.C. 1227(a)(l)(B)
] -
I the United States in violation of law
APPLICATION: Adjustment of status; remand
JUL 18 2014
Te respondent, a native and citizen of Cambodia, has appealed fom the Imigration Judge's
decisions dated June 1, 2012, and May 2, 2012. In his decisions, te Imigation Judge
concluded that the respondent's application fr adjustent of status (For 1-485) was
incomplete ad, therefre, could not be adjudicated; he then granted the respondent 60 days
volunty depae to Cabodia. During the pendency of te appeal, the respondent fled a
motion to remand with a new affdavit of support (For 1-864) ad a report of medical
exaation ad vaccination record (Form 1-693). The Depatment of Homeland Secuty (te
"DHS") did not fle a response brief. The motion will be granted, ad te record of proceeding
wll be remanded to the Immigration Cou fr fer proceedigs consistent wt tis order.
We review te fndings of fct, including the determination of credibility, made by the
Imgration Judge under a "clearly eroneous" standad. 8 C.F.R. 1003.l(d)(3)(i). We review
all other issues, including wheter te parties have met the relevant burden of proof ad issues of
discretion, under a de novo standard. See 8 C.F.R. 1003.l(d)(3)(ii). As the respondent's
application was fled prior to May 11, 2005, it is not govered by the provisions of te REAL I
Act. See Mater ofS-B-, 24 I&N Dec. 42 (BIA 2006).
The relevat fcts and procedural history in the present case ae as fllows. On or about
July 17, 2001, te respondent was admitted to the United States (wit his fther) as a
non-immigat K-2 visa holder as the son of te face of Sirinain Saay, a citizen of te
United States (Exh. 1; 1.J. order dated May 2, 2012, at 1). A Form I-485 adjustment application
was fled on his behalf in August 2001, but te respondent's case was terminated baed on his
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Cite as: Athikar Moung, A079 196 338 (BIA July 18, 2014)
A079 196-38
failue to appea fr a interview on Augst 8, 2002
1
(I.J. order dated May 2, 2012, at 1-2;
Resp.'s Supp. Submission befre l.J. at 20). The mariage between the respondent's fther ad
Ms. Sarasy was "terinated" on Mach 27, 2002 (l.J. order dated May 2, 2012, at 1-2; Resp.'s
Supp. Submission befre l.J. at 1 ).
Te respondent fled a second For 1-485 on May 31, 2009; it was denied on Mach 25, 2010,
based on the determination by the United States Citizenship ad Immigraton Services (USCIS)
that te respondent's fther ad the United States citizen petitioner divorced, ad the respondent
ted 21 years old befre a f decision could be reached on the For 1-485 (I.J. order dated
May 2, 2012, at 2; Resp.'s Supp. Submission befre I.J. at 21-23). Based on these fcts, te
USC IS deteried te petition was no lonf er valid, and te respondent was no longer a child,
and terefre, not eligible to adjust status (1.J. order dated May 2, 2012, at 2; Resp.'s Supp.
Submission befre l.J. at 21-23). The DHS placed the respondent in removal proceedings on
Febry 25, 2011 (Ex. 1).
On December l, 2011, te respondent fled a third For 1-485
3
befre the Imigaton Judge
(Resp.'s Renewal of Form 1-485 fling befre l.J. at 9-14). On May 2, 2012, the Immigation
Judge deterined the respondent was eligible fr adjustent of stats but did not adjudicate the
respondent's For 1-485 because he did not submit a completed afdavit of suppor, For 1-864,
in accordance with the relevat regulations, or the required report of medical exam, For 1-693
(I.J. order dated May 2, 2012, at 2, 4-6).
Regarding te Form 1-864, the Immigration Judge determined the af davit of suppor fled in
2001 (frerly For 1-134) by Ms. Sarasy was not sUfcient because the regulations set frt at
8 C.F.R. 213a.2(a)(2) specifcally require a Form 1-864 to be used as an afdavit of support (.J.
order dated May 2, 2012, at 5; Resp.'s Supp. Submission befre I.J. at 18). He fer
determined te For 1-864 submited by Roathony Sok was insufcient because the
regations set frt at 8 C.F.R. 213a.2(b)(l) require that te Form 1-864 be executed by te
face( e) petitioner which, in this case, would have been Ms. Sarasy (l.J. order dated
May 2, 2012, at 4-5; Resp.'s Supp. Submission befre l.J. at 16-23). Regadig the For I-693,
the Immigration Judge disagreed with te respondent's position that he fll witin the exception
1 Respondent, who was approximately 13 years old at te tie, alleges he did not appea because
he was unawae of the notice fr a interiew on his applicaton (Resp.'s Supp. Submission
befre l.J. at 1). It is not apparent whether his fther appeaed or how his fther adjusted his
status.
2 This interretaton was overed by the Board in Mater of Le, 25 l&N Dec. 541 (BIA 2011 ),
wherein we held that a derivative child of a nonimmigat face( e) visa holder under
section 101(a)(l5)(K)(iii) of the Immigration ad Nationality Act is eligible fr adjustent of
stats even afer having ted 21 fllowing admission to the United States on a K-2
nonimmigant visa. Id.
3 The respondent titled his submission "Renewal of Form I-485 Filing ad Supporing
Documents." We note, however, that the Form I-485 contained in the flig is a distnct
application fom the second Form 1-485 fled in May 2009 because it was newly dated
December 1, 2011 (Resp.'s Renewal of For 1-485 fling befre 1.J. at 9-14).
2
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Cite as: Athikar Moung, A079 196 338 (BIA July 18, 2014)
A079 196 338
at 8 C.F.R. 1245.5, whch provides that K-2 visa holders who received a medical exanation
pror to admission ae not required to have aother medical examinaton if the For 1-485 wa
fled witin 1 yea of the medical exaination perfored fr the visa application (1.J. order dated
May 2, 2012, at 5). Specifcally, he stated that the Form 1-485 submited befre the Imigation
Cou was an "entirely new application," not a renewal of the frst For 1-485; therefre, since
te For 1-485 submitted befre te Immigration Cou was fled more ta 1 yea afer the
medica exaination perfored fr te visa application, the respondent was required to submit a
For 1-693 befre the For I-485 could be adjudicated (l.J. order dated May 2, 2012, at 5). The
Imigration Judge directed the respondent to submit te requisite frms by May 25, 2012, ad
continued proceedings.
The respondent did not submit the afrementioned frs, so the Immigration Judge grated
h voluntary depature on Jue 1, 2012. The respondent timely appealed fom the Immigration
Judge's decision. During the pendency of the appeal, the respondent fled a moton to remad
wt a new For I-864 ad Form 1-693. On appea, the respondent asserts the Immigration
Judge ered as a matter of law when he fund that the respondent's For 1-485 wa not complete
ad that he needed to fle a additonal For 1-864 (Resp. 's Br. at 6-7). He fer asserts the
Immigration Judge erred as a matter of law in holding that a second For 1-693 was requred in
order to adjust status (Resp.'s Br. at 12-13). I the alterative, he aserts that he provided a new
For 1-864 completed by Ms. Saasy and an additional co-sponsor ad a new For I-693
4
(Resp.'s Br. at 16, 22-29, 33). It is this appea ad moton tat we now address.
Te respondent now has the proper For I-864 and For I-693 to adjudicate his application.
Although it would have been desirable fr him to have had tese frs prior to appeal, we
recognize the difculty in locating Ms. Saasy-an individua te respondent allegedly had not
seen in 10 yeas (Resp.'s Br. at 13-16). Since the respondent fled the requisite frs requested
by the Immigraton Judge ad the DRS does not oppose, we will remad this case to te
Imigration Court fr a new hearing, in which the Immigration Judge will adjudicate te
application fr adjustment ad render a new decision. At the hearing, both sides may present ay
evidence relevant to te respondent's eligibility fr the relief sought.
Accordingly, the fllowing orders will be entered:
ORDER: The moton is ganted.
FURTHER ORDER: The record is remanded to the Immigration Cou fr fer
proceedings consistent with the fregoing opinion.
4 The original envelope allegedly containing the For 1-693 was contained in the respondent's
motion to reconsider fled befre the Immigration Judge on Jue 12, 2012; a photocopy of it was
submitted with te appeal brief (Resp.'s Motion to Recon. at 33). On July 2, 2012, the
Immigation Judge noted a Notice of Appeal was fled with this Board on June 29, 2012. He,
therefre, frwaded the record, including te motion to reconsider, to tis Boad.
3
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Cite as: Athikar Moung, A079 196 338 (BIA July 18, 2014)
I
In the Matter of:
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
SEATTLE, WASHIGTON
Date June 1, 2012
Athikar Muong
File Number A 79 196 338
Respondent IN RMOVAL PROCEEDINGS
CHARGE:
APPLICATION:
Overstay
Adjustment of Status
ON BEHALF OF RSPONDENT
Ahoua Kone, Esq.
Judge Kenneth Josephson
ON BEHALF OF DHS
Hana Sato, Esq.
ORDER OF THE IMMIGRTION JUDGE
At hearing ofNov. 1, 2011, it was agreed tat by Dec. 1, respondent would fle te necessary
jurisdictional materials including a proper frm I 864, affdavit of support and I 693. ICH was set
fr Jan. 10, by agreement. I note that at tat time DHS raised various issues as to statutor
eligibility. One such issue was the inadequacy of the I 864. In particular, we had discussion about
the need fr the petitioner to sublit the same. Counsel fr respondent indicated that tere had not
been contact with her fr some period of time. I emphasized that there needed to be such contact
to meet this DHS argument as to eligibilit. I was assured tat eforts to initiate the sae would be
promptly made. Afer giving the paries the opporunit to submit post hearing briefs on the
eligibilit issues, on May 2, I set fr my point of view in a six page written order, which is
incorporated by refrence. I fund eligibilit; provided tat I would be provided wit a curent I 693
ad the afdavit of suppor fom the initial petitioning spouse, Ms. Serasy. I noted that ifl did not
get a "responsive pleading to the above, I will enter an order" completing the case. 8 CFR 1003 .31
(c). On May 22, respondent fled a pleading which neither contains nor refrs to the I 693 despite
being explicitly directed to have provided the same; ad asked fr a furher "90 days" so as to "fnd
the whereabouts of Ms. Serasy" as well as "to conduct some necessa research". That request is
denied. Respondent has been on notice of the issues fr a great deal of time and has not been
cooperative. Respondent has repeatedly stated that there is no request fr asylum ad that he wa
served with his NT A prior to have accumulated ten years of continuous residency so as to be able
to seek COR. Hence, no other fr of relief has been identi fed. Respondent is given voluntay
depaure until July 31, 2012, upon the posting of a $500 bond, with a alterate order of removal
to the countr he designated, Cambodia. The volunta deparue advisals are provided herewith.
N
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