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Department of Justice
Executive Office for Immigration Review
A 097-750-414
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOWtL t!a.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Cole, Patricia A.
Pauley, Roger
Userteam: Docket
Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)
20530
File:
Date:
DEC 12 2014
APPEAL
ON BEHALF OF RESPONDENT:
CHARGE:
Notice:
Sec.
APPLICATION:
237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law
The respondent appeals the Immigration Judge's February 20, 2013, decision denying his
application for a waiver of inadmissibility in conjunction with adjustment of status under
sections 2 l 2(i) and 245 of the Immigration and Nationality Act, 8 U.S.C. l l 82(i), 1255.
We
have not received a response from the Department of Homeland Security ("DHS"). The appeal
will be sustained and the record will be remanded for further proceedings.
The respondent challenges the Immigration Judge's ruling that he is inadmissible under
respondent's initial merits hearing on October 25, 2007, the respondent testified falsely that the
This matter was previously before us and was remanded by order dated August 18, 2009, for
additional fact finding and further consideration of the application for relief. The Immigration
Judge's decision of February 20, 2013, will be referred to as ''l.J.2"; the earlier decision of
October 25, 2007, will be referred to as "l.J. l ". The Immigration Judge initially denied the
respondent's application for adjustment of status on October 25, 2007, finding the respondent
and his wife had not testified credibly and that they were engaged in a fraudulent marriage
(l.J.1 at 2). The case was remanded to the Immigration Judge upon a finding that the respondent
had established prejudice due to ineffective assistance of his prior attorney. Upon remand, the
parties were given the opportunity to supplement the record regarding the application for relief.
2
Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)
IN REMOVAL PROCEEDINGS
sigaature on the application for adjustment of status, Form 1-485, was his (I.J.2 at 2; Tr. at 30).
The Immigration Judge found that this false statement under oath rendered the respondent
inadmissible and that the false statement was "material" to his eligibility for adjustment of status,
reasoning that there was no application before the Court in the absence of a properly sworn
Form 1-485 (l.J.2 at 2-3; Tr. at 111). The respondent filed a new application for adjustment of
status at the remanded hearing. Additional evidence was submitted and further testimony of both
The
proceedings is instructive in assessing a similar provision. In Kungys v. U.S., 485 U.S. 759
(1988), the Immigration and Naturalization Service sought to have the respondent's citizenship
revoked based upon false statements made as to his date and place of birth. The Court ruled that
a false representation is material when it would lead to a "natural tendency to end a possible line
of questioning or otherwise influence a decision on his application."
772.
Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)
,.
t:
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"(
FURTHER ORDER:
Cite as: Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014)
In the Matter of
)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGE:
APPLICATION:
Adjustment of status.
for adjustment
of status unde Section 245 of the Immigration and Nationality Act. Ultimately, being the
Board's decision the Board determined that the respondent satisfied the Lozado
requirements and remanded this case to the Court so that the parties could be afforded
an opportunity to supplement the record with evidence pertaining to the respondent,s
relief application, including testimony and documentary material.
MG&m.
File: A097-750-414
During the hearings that followed before this Court, the Court did allow the
respondent to present additional evidenc
_ e and testimony. At a hearing before this Court
on December 22, 201 1 the Court considered the respondent's arguments that he should
A097-750-414
February 20,
2013
not be required to seek a waiver under Section 21 2(i) because the respondent did not
was not his signature. Moreover, the respondent was under oath. The respondent was
directly questioned by this Court about that signature and again this Court finds the
finding that the respondent has met his Lozada requirements. However, this Court does
not find that the Board's decision ultimately affects this Court's ruling regarding the
respondent's testimony under oath before this Court regarding this Court's direct
questioning of the respondent as to whether a signature on his 485 was his or not.
Therefore, this Court required the respondent to prosecute a 1-601 waiver,
that is a 212 {i } waiver before this Court. The respondent indicated that although on
December 22, 2011 he had some of his case in chief ready for that waiver hearing, he
did not have all of his case and chief ready. The Court set the case down for its next
available date which was today's date, February 20, 2013.
However, the respondent, instead of being prepared to go forward with his
waiver application today, seeks a continuance arguing that he and his United States
citizen wife have "temporarily fallen out of communication with each other, following a
disagreement at the end of December of 2012". The respondent seeks a continuance
of the hearing today to allow him time to "reconcile with his wife". The Department of
Homeland Security has filed a written opposition to the respondent's request for a
continuance. The respondent's request for a continuance was filed with this Court on
February 12, 2013. And
OHS' response was filed on February 15, 2013. The Court has
A097-750-414
February 20,
2013
respondent's arguments in that regard fII short. The Court understands the Board's
been aware since December 22, 2011 that today was the day for his hearing on his
212(i) waiver. The respondent, nonetheless, presents himself at the hearing today
demonstrate extreme hardship to his United States citizen wife. She has not appeared
for the hearing today and this Court ultimately does not find that the respondent has
presented good cause for continuing today's hearing. Because the respondent has not
presented his United States citizen wife today he cannot demonstrate eligibility for the
Section 212(i) waiver and, therefore, this Court finds that the respondent is not eligible
to adjust his status. Although the respondent in previous proceedings has sought
voluntary departure, respondent through counsel today indicated that the respondent no
longer seeks voluntary departure. Therefore, because the respondent cannot
demonstrate eligibility for a Section 212(i) waiver, as his wife is not present to testify
and, therefore, this Court does not give any significant weight to her declarations in the
record. This Court finds that the respondent is ineligible to adjust his status under
Section 245 of the Act and does deny that application.
ORDERS
IT IS HEREBY ORDERED that the respondent's application for
adjustment of status under Section 245 of the Immigration and Nationality Act be and is
hereby denied;
IT IS FURTHER ORDERED that the respondent's application for a Section
212(i) waiver be and is hereby denied;
A097-750-414
February 20,
2013
without the one person necessary to prosecute his waiver that is the respondent must
,,,,_.'
A097-750-414
February 20,
2013
/Isl/
Immigration Judge MATTHEW J.
dangelorn on June
5,
2013 at
D'ANGELO
8:47
PM GMT
A097-750-414
February 20,
2013