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U.S.

Department of Justice
Executive Office for Immigration Review

Board (llmmigration Appeals


Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

Farabee, Allen W., Esq.

OHS/ICE Office of Chief Counsel - BUF


130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: PERSAUD, MOTILALL

A 039-091-797

Date of this notice: 2/6/2015

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.

Userteam: Docket

For our Index of Unpublished BIA Decisions


Visit www.irac.net/unpublished/index

Cite as: Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

P.O. Box 139


Buffalo, NY 14213

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review


Falls Church, Virginia 20530
File:

Date:

A039 091 797 - Buffalo, NY

FEB 0 6 2015

In re: MOTILALL PERSAUD

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Allen W. Farabee, Esquire

Denise C. Hochul
Senior Attorney

CHARGE:
Notice:

Sec.

2 l 2(a)(7)(A)(i)(I) , I&N Act (8 U.S.C. l l 8 2(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document

The respondent, a native and citizen of Guyana, timely appeals an Immigration Judge's

October 1S, 2012, decision finding the respondent to be inadmissible as charged. The record will
be remanded to the Immigration Judge for further proceedings and for the entry of a new
decision.
The respondent was admitted to the United States as a lawful permanent resident on
January 22, 1985. In 2005, the resp ondent married a Canadian citizen (Tr. at 35). When the
respondent attempted to return to the United States from Canada at the U .S./Canadian border
crossing at Buffalo, New York on February 11, 2011, a review of the respondent's immigration
file showed that he had completed and signed a Form 1-407, Abandonment of Lawful Permanent
Resident Status, on September 15, 2009, when he previously attempted to cross the border from
Canada into the United States after visiting his wife (Exh. 2, Tab D). A Notice to Appear was
issued on February 11, 2011, charging the respondent with inadmissibility under section
2 l 2(a)(7)(A)(i)(I) of the Act, 8 U.S.C. 1l82(a)(7)(A)(i)(I), as an immigrant not in the
possession of a valid immigrant visa or entry document (Exh. 1) . In a decision dated October 18,

2012, the Immigration Judge found that the Department of Homeland Security ("DHS") had
carried its burden of proving by clear and convincing evidence the respondent was inadmissible
as charged, finding that the respondent had abandoned his prior lawful permanent resident status.
An alien lawfully admitted for permanent residence in the United States is not regarded as
seeking admission unless, among other things, the alien has abandoned or relinquished
that status. See section 101(a)(l3)(C) of the Immigration and Nationality Act, 8 U.S.C

l 10l(a)(l3)(C). Where an applicant for admission to the United States has a colorable claim to

returning resident status, the burden is on the Department of Homeland Security (OHS) to show
by clear, unequivocal, and convincing evidence that the applicant should be deprived of her LPR

Cite as: Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

./

A039 091 797

status.

Matadin

749 (BIA 1988).

v.

Mukasey, 546 F.3d 85, 91 (2d Cir. 2008); Matter of Huang, 19 I&N Dec.
In determining whether the DHS has met its burden of proof, we look to

whether the alien is returning to an unrelinquished lawful permanent residence after a temporary
visit abroad. Id. at 753. The intention of the alien, when it can be ascertained, will control. Id.;
Matter ofKane, 15 l&N Dec 258 (BIA 1975). Such intent may be determined by examining the
location of family ties, property holdings, job, and whether the alien intended to return to the
Id.

We have also

can be expected to terminate within a relatively short period of time, and whether the termination
date can be fixed by some early event. Matter of Kane, supra.

An alien's professed intent to

return to the United States without more is not sufficient to support the alien's case. Matter of
Huang, supra, at 7 55.
In finding that the respondent abandoned his LPR status, the Immigration Judge relied on the
1-407 signed by the respondent and rejected the respondent's claim that he executed the form in a
manner that was knowing, intelligent, and voluntary (I.J. at 6-7).

However, even assuming,

without deciding, that the Immigration Judge was correct in his analysis as to the 1-407, this
document, alone, is not dispositive of the abandonment issue. In order to determine whether an

LPR has abandoned such status, the totality of the circumstances, including the factors listed
above, must be considered.

See, e.g., Hana

v.

Gonzales, 400 F.3d 472, 476 (6th Cir. 2005)

(stating that, at least in the context of exclusion proceedings, a court should consider the "totality
of the circumstances" in determining whether a party has abandoned LPR status); Moin
v.

Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Singh

v.

Reno, 113 F.3d 1512 (9th Cir. 1997).

In this case there are a number of factors that, if true, would appear to support the
respondent's assertion that, despite the signing of the 1-407, he did not intend to abandon his

LPR status, but rather intended to return to an unrelinquished domicile in the United States after
a short trip to Canada.

Notably, the hearing transcript and statements from the respondent's

counsel accompanying evidentiary submissions indicate not only that the respondent has been
a LPR since 1985, but that he has always maintained a residence in the United States, that he
owns property in the United States, including a home in Florida, land in New York, and
a business in New York, that he has family in the United States, and that he twice applied to
become a naturalized United States citizen, including in 2006 (Tr. at 1-13, 21-22, 43; Unmarked
evidentiary submission dated May 22, 2012). He also asserts that he was simply visiting his
Canadian wife for a few days at her home in 2009, and always intended to return to his home in
Florida shortly thereafter (Tr. at 35).
As consideration of the veracity and import of these assertions involves factfinding, we find
it appropriate to remand this matter to the Immigration Judge to assess these factors, and to
reevaluate the issue of whether, under the totality of the circumstances, the respondent has

abandoned his LPR status. See 8 C.F .R. I 003. I (d)(3 )(iv) (providing that, subject to certain
exceptions not applicable to the present case, "the Board will not engage in factfinding in the
course of deciding appeals"). In so doing, the Immigration Judge should consider the additional
evidence the respondent has submitted on appeal, and should allow the parties to offer additional
argument and evidence.

Cite as: Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

United States as a place of employment or business or as an actual home.

considered the applicant's purpose in departing from the United States, whether the visit abroad

...

A039 091 797

Accordingly, the following order will be entered.


ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT

File:

NEW YORK

October 18,

A039-091-797

2012

In the Matter of

IN

MOTILALL PERSAUD

REMOVAL PROCEEDINGS

RESPONDENT

212 (a) (7) (A) (i) (I)

CHARGES:

of the Immigration and

Nationality Act as amended inasmuch as the


respondent is charged as an immigrant who at the
time of application

for admission was not in

possession of a valid unexpired immigrant visa,


reentry permit,

border crossing card,

or other

valid entry document required by the Act and a


valid unexpired passport or other suitable travel
document or document of identity and nationality
as required under the regulations issued by the
Attorney

General under Section 211(a)

of the Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

ORAL

ALLEN FARABEE

DENISE C.

DECISION

HOCHUL

OF

THE IMMIGRATION JUDGE

The respondent is a 66-year-old

male,

citizen of Guyana who has admitted paragraphs 1,

native and
2,

and 3 of the

Immigrant & Refugee Appellate Center | www.irac.net

BUFFALO,

Notice to Appear February 11,

6.

was left bland,

2011,

and denied paragraphs 4

an d

an d therefore the Court will presume that


but even given

construction to the responden t,

the most favorable

the Court would find that he has

abandoned his lawful perman en t residen t status,

and the Court

will explain its reason s why.


The respondent testified,
direct examination,

that in

1995

resident and lived in Queen s,

U.S.

citizen daughter,

among other things,

he became a lawful permanent

New York for a few years with his

according

to what he testified to.

has been married four or five years,


and is married to a Canadian
business,
testimony,

on

citizen ,

according to his testimony,


has worked in the trucking

or did work in the trucking busin ess,


and al so had a furniture store.

imagine a person being a busin essman

He

according to his

It woul d be hard to

and n ot bein g able to read

or write or understand the documents that one is called upon


from time to time to sign,

but aside from that,

the respon den t

continued with his testimony and stated that he went back and
forth to Canada,

and after marrying in Canada,

he obtained

status there as a resident an d had a residence in Can ada as


well.

He also claims to have filed U. S.

the Court observed that none are signed,


been backdated.

The respon dent also claimed

form at the time of being at the border,

but

and all appear to have

That is the ones that the respondent

submitted to the Court.

A039-091-797

in come tax return s,

has

he signed a

which became known as

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

he also denied that as well,

an I-4 07,

and did so on September 15,

2009,

at Detroit,

Respondent claims that he did not give up his

residence,

however,

lived in America,

and states he told the officers that he

not Canada.

what he was signing,

He also claims he did not know

that he did not give up his rights,

and he

He further

claims he did so thinking he was going to a funeral.


stated that it was not his intention to relinquish his
residency,

and he claims he got the tax returns,

as set forth

herein above in his testimony referred to by the Court earlier,


from his accountant,

but does not have the originals or the

copies of them.
The Court inquired at this particular juncture or at
about that time whether or not further inquiry was made to the
Internal Revenue Service,

given the fact that they do keep

records going back that far,


with them.

but the Court has not been favored

He also claims that he has cataracts,

surgery earlier this year,

and has family in Guyana,

twice filed an application for naturalization,


first one six years ago,
not successful.

and had

and filed the

and did so afterward as well,

He claims he could not read,

out a naturalization application.

2006

he applied

for

but was

but he did make

He managed to do that.

On further inquiry in cross-examination,


that in

and that he

naturalization,

but

he testified

"didn't

remember" that date with reference to the date of his marriage


in 2005.

He also stated on cross-examination he became a landed

A039-091-797

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

Michigan.

immigrant in 2007,

but says he "didn't remember. "

Again,

those

words "didn't remember" when he filled out a naturalization


He also testified that he has been married twice

and is still married to a woman in Canada,


know he had given up his rights,

and claims he did not

even though he signed the form

in question which was received as Government's Exhibit 2,


particular,

the I-4 07,

and in

and he went on to state that he did not

understand what the Immigration officer was saying.

He also

testified and said that the officer put an "X" on the form where
he was to sign.

Close examination of the I-4 07 indicates there

There is an X next to the signature on the NTA,

is no X.

there is no X on the I-4 07.

The Court finds that testimony to

be completely disingenuous and false.


initials on the I-4 07.
testimony.

And also,

He admits that.

he put his

So there is conflicting

That does not come down in favor of the respondent

in terms of his credibility,

the Court parenthetically adds,

continuing on with his testimony,


wife in Canada,

and has been married for seven years,

United States of America,

but

he was still married to his

not even started divorce proceedings.

Florida,

but

and has

If he were living in the

and in particular,

in Kissimmee,

all one needs is six months of continuous residency

there to file a petition for dissolution of marriage.


not done that.

That is one more thing that has convinced the

Court that the respondent's testimony is not genuine,


being disingenuous,

A039-091-797

He has

and is not credible.

and he is

He could have filed

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

application.

that divorce petition in New York or Florida,

and if he has been

living in Florida for as long as he says he has been,

but he did not,

so the

presumption is that he is still married to a woman in Canada and


still retains substantial contacts and connections with Canada,
in addition to many other things.
Furthermore,

on his naturalization application in 2006

he was asked if he was married,


that was a false statement.

and he said,

"single. "

Well,

That factors in to the overall

believability of the respondent as well.

It is just one more

piece to determine whether or not the totality of the


circumstances lead to a conclusion,

which in this case shows

that he is not credible or believable.


claimed he was married,
application,

Furthermore,

he again

but when shown the naturalization

he finally admitted he was not single,

but again,

only after vigorous cross-examination and repeated questions did


the respondent,

and then continued to dissemble and was evasive

and unresponsive when asked questions regarding his status.


On another form,
if married,

and in effect,

tell the truth and did not.


another,

he used the word,

"none, " when asked

stated he knew he was required to


Putting together on thing after

that leads to one logical conclusion,

respondent

was

not

and that is,

the

credible in his testimony.

He did testify on redirect examination about his


eyesight,

but there is no evidence at the time that he signed

A039-091-797

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

could have come and gone a long time ago,

that time

this particular document that he was unable to read or write or


understand the contents of what it was he signed.

the way,

and there was a record of sworn statement,

that the respondent also gave,

paragraph 6-A,
two years,

and there is an initial,

it states on there at

intelligently signed,

MP.

The respondent said

There is no testimony that an officer

I find it was knowingly signed,

forced him to do this.

09.

by

I no longer live here and have not for the last

those were his initials.

anywhere,

going

and voluntarily signed,

and I do not see

I see the signature of the alien and the date,

9- 15-

There is no X next to his signature where the officer would

have suggested that that is what he had to sign or was compelled


to sign it.

On the next page I do not see an X either next to

his signature.

He says,

well,

there is a little dot.

do not see a little dot there.


on the way he signs his name,

Well,

And if you look at the curlicue


that is normal and natural,

especially when you look at the NTA and make a side-by-side


analysis and comparison between the two.
clearly an X.

You can see that X.

There there was

But he has a loop at the

beginning of the M in signing his name.

That is exactly what

appears on the I-407.

there was no X,

There was no dot,

there

was no suggestion that he sign this or was misled into signing


it.

The

Court has

Now,

not

heard any

convincing

evidence

o f that.

the respondent's testimony here today,

Court must make a threshold finding as to credibility,

A039-091-797

and the
and the

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

back to the I-407,

Now,

Court also has to determine one's demeanor,

candor,

or

responsiveness and the inherent plausibility of the applicant's


the consistency between the applicant's written and

oral statements,

without regard to whether an inconsistency goes

to the heart of an applicant's claim,

but also,

I do not want to

leave out the fact that there is a record of sworn statement


here two.

He knowingly signed that,

never made any argument

that it was forced upon him or that he did not knowingly,


intelligently,

and voluntarily give that sworn statement.

One of the things Judges under the REAL

ID Act are

permitted to do is to determine a person's demeanor during the


hearing in assessing credibility.

Vagueness and evasiveness of

one in providing testimony is a factor.

The Court goes back

also to the record of sworn statement that the respondent gave,


and clearly he was asked,
out,

question,

as the Government correctly pointed

when did you move to Canada?

years ago when I got green card for Canada.

Answer,
Well,

about three

the Court

finds that the respondent's testimony was not credible,

and

given the numerous inconsistencies in his testimony that have


not been satisfactorily reconciled,
conflicting and evasive testimony,

not to mention his


the Court concludes that the

respondent's tax returns also were backdated to make it appear


that he was working,
States,

was physically present in the United

which could have been used as an indicia that he was in

the United States and working and doing so continuously,

A039-091-797

and

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

account,

that would have been consistent with lawful permanent residency


or the maintenance of that,

but he did not,

and the fact that


and backdating

documents creates a very serious adverse effect on one's


credibility,

and was not satisfactorily explained away.

Court earlier pointed out,

As the

there is no corroboration from the

Internal Revenue Service that these were signed or filed on the


years in question that he claims that they purported to be
submitted,

signed,

and filed for.

out the REAL ID Act,

or so he claims,

to the I-407,

again,

the Court has pointed

but the respondent repeated claimed not to

"remember" a number of dates,


signing,

Again,

and did not understand what he was

when he put his signature or initials

all of which leads the Court to observe

that the respondent has a convenient memory,


which was convenient,
and consistently,

or displayed one

but could not really testify accurately

and when confronted,

became evasive and non

responsive.
Having said that,

and looking at the totality of the

testimonial and documentary evidence of record in the aggregate,


the Court does conclude that the respondent knowingly,
intelligently,

and voluntarily did sign the I-407 and did in

fact waive his lawful permanent residency,


not sign that,

and even if he did

the facts of this case as contained not only in

his testimony but in the record of sworn statement affirmatively


shows that the respondent abandoned his lawful permanent

A039-091-797

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

the documents submitted are of a suspect nature,

resident status.

Therefore,

the Court finds that he is

inadmissible according to 212(a) {7) (A} {i) (I).

The Court finds

convincing,

and unequivocal evidence.

Accordingly,

the

respondent is hereby found to be inadmissible in to the United


States pursuant to 212(a) (7) {A)(i) (I)

and finds that he has

abandoned his lawful permanent resident status.

PH ILIP J.

MONTANTE JR

Immigration Judge

A039-091-797

October 18,

2012

Immigrant & Refugee Appellate Center | www.irac.net

that the Government has carried its burden of proof by clear,

/Isl/
Immigration Judge PHILIP J.
January

.A039-091-797

14,

JR

Immigrant & Refugee Appellate Center | www.irac.net

rnontanp on

MONTANTE

2013 at 3:04 PM GMT

10

October 18,

2012