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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel -BLM

Robichaud, Anderson & Alcantara, P.A.


1601 Hennepin Avenue, Suite 200
Minneapolis, MN 55403

(MSP )
1 Federal Drive, Suite 1800
Ft. Snelling, MN 55111

Name: AMWAYI, FLORA OBUSHERE

A 205-133-952

Date of this notice: 10/28/2014

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Manuel, Elise

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Flora Obushere Amwayi, A205 133 952 (BIA Oct. 28, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Anderson Ill, Thomas R.

..

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 20530

File:

Date:

A205 133 952 - Bloomington, MN

OCT t8ZOf4

In re: FLORA OBUSHERE AM.WAYI a.k.a. Flora Amwayi Holmes


IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Thomas R. Anderson III, Esquire

James Stolley
Assistant Chief Counsel

An appeal from the Immigration Judge's decision in this case is currently pending before the
Board of Immigration Appeals ("Board").

The parties have now filed a joint motion to

administratively close these proceedings based upon the Department of Homeland Security's
exercise of prosecutorial discretion.

The motion will be granted, and the proceedings

administratively closed.
If either party to this case wishes to reinstate the proceedings, a written request to reinstate
the proceedings may be made to the Board.

The Board will take no further action in the case

unless a request is received from one of the parties. The request must be submitted directly to
the Clerk's Office, without fee, but with certification of service on the opposing party.
Accordingly, the following order will be entered.
ORDER: The proceedings before the Board of Immigration Appeals in this case are
administratively closed.

FOR THE BOARD

Cite as: Flora Obushere Amwayi, A205 133 952 (BIA Oct. 28, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL AND MOTION

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OF FICE FOR IMM IGRAT ION REVIEW
UNITED STATES IMMIGRATION COURT
BLOOMINGTON, MINNE SOTA

November 6, 2012

A205-133-952

In the Matter of

IN REMOVAL PROCEEDINGS

FLORA OBUSHERE AMWAY I


RE SPONDENT

CHARGES:

Section 237(a) (1) (C) (i) of the Act - failed to


maintain or comply with conditions of non
immigrant status; Section 237 (a) (3) (D) of the Act
- falsely represented herself to be a citizen of
the United States for any purpose or benefit under
this Act, including Section 274A or a Federal or
state law.

APPL ICATION S:

Continuance in order to continue to pursue the


visa petition approval that respondent would have
hopefully lead to respondent being able to adjust
status in the United States under Section 245 of
the Act; in the alternative, voluntary departure.

ON BEHALF OF RES PONDENT: THOMAS ANDERSON


ON BEHAL F OF OHS : COL IN JOHNSON

ORAL DECI SION OF THE IMMIGRATION JUDGE


The respondent is a female, native and citizen of Kenya, who
was admitted to the United States at New York,
1

New York on or

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File:

about December 29, 2009 as an F-1 non-immigrant student.

The

respondent failed to maintain that status in that as of April 11,


2011, respondent failed to maintain or comply the conditions of

Visitor Information system.

Additionally, the OHS alleges that

on January 31, 2011 and September 7, 2011, the respondent


represented herself to be a United States citizen for the purpose
of gaining employment.

The respondent admitted those factual

allegations and conceded both charges of removability back at a


previous hearing.
At the hearing on February 28, 2012, the respondent admitted
the allegations and conceded both charges of removability, and
the Court particularly notes Exhibit 6, pages 18 through 20,
regarding the allegations and charges.

The respondent is married

to a United States citizen and has a Form I-130 pending on her


behalf.

The respondent is seeking a continuance for ultimately

seeking adjustment of status under Section 245 of the Act should


the visa petition get approved.
The respondent is not eligible for adjustment of status
under Section 245 of the Act because the respondent has falsely
claimed to be a United States citizen when gaining employment or
attempting to gain employment with different employers, which are
contained in Exhibit No. 4.

The Forms I-9 for Seasons at Apple

Valley is at the first page of Exhibit 4, and the Form I-9 for
Homeward Bound,

A205-133-952

Inc. is contained at the second page of Exhibit

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

that status and was terminated in the Student and Exchange

In both of those forms, the respondent confirmed that

No. 4.

those were her signatures on the Forms I-9, and also that she had
checked the box claiming to be a United States citizen.

citizen box that is checked on the Form I-9 is on the more


current version of the Form I-9, which actually splits up what
used to be citizen or a national of the United States ali in one
line.

This Form I-9, which is the version revised in 2009,

actually separates out the response citizen of the United States


as a separate box that can be checked on the Form I-9,

I think in

response to all of the litigation surrounding whether or not the


person had claimed to be a United States citizen and which would
potentially bar adjustment of status.
The respondent was unrepresented at the time of the hearing
on February 28, 2012.

However the record is quite clear that

Judge Nickerson gave the opportunity to the respondent for a


continuance.

Judge Nickerson, at the February 28, 2012 hearing,

as is reflected in Exhibit No. 6, page 7, that he explained the


Notice to Appear to the respondent and that she understood the
charges.

Judge Nickerson went through in detail with the

respondent the purpose of the hearing, her rights, gave her the
packet of relevant materials, and then asked whether she wanted a
continuance to obtain the service of a lawyer, or if she wanted
to go ahead and represent herself.

See Exhibit No. 6, page 10.

The respondent indicated that she will represent herself.

A205-133-952

Judge

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

Furthermore, the Court would note that the United States

Nickerson asked are you sure.

The respondent said yes.

Judge

Nickerson asked, then you are going to waive your right to


counsel and represent yourself?

The answer is yes, Your Honor.

three times, the respondent decided to go forward and speak on


her own behalf.

The respondent indicated that she understood all

of the rights and what had been explained.

On page number 15 of

the transcript, the Judge indicates to the respondent and an


additional respondent, who was having the hearing j ointly with
the respondent, that this was the first time that respondent had
been before him.

That is the policy of Judge Nickerson, to have

one continuance if the person wants it.

That person does not

have to say why you want it, all you have to do is simply say,
Judge, I don't want my case heard today and I'll put it over to
another day.

If that is what you want, we will do it; otherwise,

we will go ahead and hear your case to ay.


On page 1 6,

Judge Nickerson then asks, essentially, for a

fourth time to respondent, what do you want to do?


continuance or have your case heard today?
Nickerson slowed down.
little quickly.

Do you want a

And then Judge

I know that he sometimes can speak a

He slowed down and he asked again what do you

Do you want to have a continuance or do you want to

want to do.

have your case heard today, and she said she wanted her case
heard today.
says yes.

Judge Nickerson asks, today?

So, essentially,

A205-133-952

And then respondent

Judge Nickerson gave the respondent

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, essentially after asking the respondent almost

many opportunities to have a continuance of her case, and he went


through the pleadings and the respondent then admitted the
allegations and conceded the charges.

went through all of the various due process issues regarding


explaining the Notice to Appear, explaining her rights, and so on
in quite a lot of detail, and did go forward when the respondent
asked to speak for herself that day.
Accordingly, since the respondent has admitted that she
claimed to be a United States citizen for the purpose of trying
to gain employment or actually getting employment at the two
locations listed in the Forms I-9 in Exhibit No. 4, the
respondent is barred from ad j ustment of status under Section 245
of the Act because the respondent is inadmissible under Section
212 of the Act, as she has falsely claimed to be a citizen of the
United States and does not qualify for the exception that is set
forth in Section 212 of the Act.
More specifically, the Section of 212 that the Court is
referencing is Section 212(a) (6) (C) (ii) pertaining to falsely
claiming to be a United States citizen, and the exception that is
listed below that is an exception that respondent does not
qualify for.

Accordingly, the respondent is not eligible to

adjust status under Section 245 of the Act,

and, therefore, the

Court is denying the respondent's request for continuance and


'
pretermitting and denying any application for adjustment of

A205-133-952

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, this Court is satisfied that Judge Nickerson

status, which as of this time, the Court does not appear to have
such application for adjustment, as that would be premature
In any event, any

application for ad j ustment is pretermitted and denied, and the


respondent's motion for a continuance is denied.
The Court has decided to grant the respondent's request for
voluntary departure despite the fact that she has falsely claimed
to be a United States citizen on these two occasions.

The

falsely claim to be a United States citizen is not automatically


a good moral character bar; rather, it can be a good moral
character bar.

However, the Court has decided to grant the

request for voluntary departure despite the respondent being


inadmissible under Section 212(a) (6) (C) (ii) , and removable under
Section 237(a) (3) (D) of the Act.
Accordingly, the Court enters the following orders in this
case:
ORDER
IT IS HEREBY ORDERED that the respondent's request for
continuance is denied;
IT IS FURTHER ORDERED that any application for adjustment of
status under Section 245 of the Act is pretermitted and denied;
IT IS FURTHER ORDERED that the respondent be granted
voluntary departure in lieu of removal without expense to the
Government on or before January 5, 2013;
IT IS FURTHER ORDERED that the respondent post a voluntary

A205-133-952

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

because the visa petition is still pending.

departure bond in the amount of $500 with the Department of


Homeland Security within the next five business days;

when and as required or to post the voluntary departure bond


within five business days to the DHS, the above grant of
voluntary departure shall be withdrawn without further notice or
proceedings and the following order shall become immediately
effective:

Respondent shall be removed to Kenya on the charge in

the Notice to Appear.


Court further notes to the respondent that if the respondent
fails to depart the United States, respondent will be subj ect to
a civil penalty of not less than $1, 000 and not more than $5, 000,
and the Court sets the amount at 3, 000.

Number two, respondent

will be ineligible for a period of ten years to receive


cancellation of removal, adjustment of status, registry,
voluntary departure, or a change in non-immigrant status.
It is further noted that if respondent reserves the right to
appeal, then she has the absolute right to appeal the decision.
If she does appeal, she must provide to the Board of Immigration
Appeals within 30 days of filing an appeal sufficient proof of
having posted the voluntary departure bond.

The Board will not

reinstate the voluntary departure period in its final order if


she does submit timely proof to the Board that the voluntary
If the respondent does not

departure bond has been posted.

appeal and instead files a motion to reopen or reconsider during

A205-133-952

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

IT IS FURTHER ORDERED that if the respondent fails to depart

the voluntary departure period, the period allowed for voluntary


departure will not be stayed, tolled, or extended, the grant of

alternate order of removal will take effect immediately, and the


penalties for failing to depart voluntarily will not apply.

Date:

November 6, 2012

P1ease see the next page or e1ectronic signature

KRISTIN W. OLMANSON
Immigration Judge

A205-133-952

November 6, 2012

Immigrant & Refugee Appellate Center | www.irac.net

voluntary departure will be terminated automatically, the

/Isl/
Immigration Judge KR IS TIN W. OLMANSON
olmansok on January 28, 2013 at 9:17 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A2D5-133-952

November 6, 2012