Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)

U.S.
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5/07 Leesburg Pike. Suite 2000
Fa/ls Church. Virginia 20530
Name: PONCE-ARRIAGA, NORMA ANG...
A 205-131-985
Date of this notice: 5/22/ 2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
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Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Greer, Anne J.
Pauley, Roger
Userteam: Docket
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Cite as: Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)
Immigrant & Refugee Appellate Center, LLC | www.irac.net
Owings, Sarah Weston Hayes

OHS/ ICE Office of Chief Counsel ATL
Antonini and Cohen Immigration Law Group 180 Spring Street, Suite 332
Atlanta, GA 30303
P.O. Box 89097
Atlanta, GA 30312
U.S. Department of Justice
Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Fans Church, Virginia 20530
File: A205 131 985 - Atlanta, GA
Date:
In re: NORMA ANGELICA PONCE-ARRIAGA
UAY 112015
APPEAL
ON BEHALF OF RESPONDENT: Sarah W. Owings, Esquire
ON BEHALF OF DHS:
Sirce E. Owen
Assistant Chief Counsel
CHARGE:
Notice:
Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled
APPLICATION: Termination; voluntary departure
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
November 15, 2013, decision ordering her removed from the United States to Mexico and
denying her application for post-conclusion voluntary departure under section 240B(b) of the
Immigration and Nationality Act, 8 U.S.C. 1229c(b). The Department of Homeland Security
("OHS") opposes the appeal. The appeal will be sustained and the record will be remanded.
We review an Immigration Judge's findings of fact, including credibility determinations,
under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment and all other issues in appeals from decisions of Immigration Judges
de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent admitted that she is a native and citizen of Mexico (I.J. at 1-3; Tr. at 35-36;
Exhs. 1-2, 3 at Tab A). As alienage was established, the burden shifted to the respondent to
establish the time, manner, and place of entry into the United States. See sections 240(c)(2),
291 of the Act, 8 U.S.C. 1229a(c)(2), 1361; 8 C.F.R. 1240.8(d).
The respondent claims that she has not left the United States since her August 19, 2008,
admission (I.J. at 3; Tr. at 36-37, 70-71; Exhs. 2, 3 at Tab A). Although evidence submitted by
the OHS indicates that she entered the United States on August 19, 2008, and then left the
United States on November 9, 2008, the respondent claims that her father inadvertently
submitted her 1-94 when he returned to Mexico from the United States on that date (I.J. at 3; Tr.
at 37-38, 45, 71; Exh. 3 at Tab A; Exh. 5 at 5, 7). In support of this claim, the respondent
submitted documentation purporting to show that she was physically present in the United States
on and around November 9, 2008, as well as a notarized statement from her father indicating that
IN REMOVAL PROCEEDINGS
A205 131 985

he mistakenly turned in the respondent's 1-94 when he returned to Mexico from the United States
on November 9, 2008 (Exh. 3, Tabs B-G).
On appeal, the respondent asserts that the Immigration Judge erred in sustaining the charge
of removability without considering the record evidence indicating that she did not depart on
November 9, 2008 (Resp. Br. at 5-7). Relatedly, she argues that the Immigration Judge's
adverse credibility finding is based on a misunderstanding of her testimony (Resp. Br. at 7-9).
The Immigration Judge found that the respondent's testimony regarding her August 2008
admission to the United States was inconsistent with documentary evidence submitted by the
DHS (I.J. at 7, 9). The Immigration Judge found that the respondent testified that "she had never
gotten out of the car and it was only her father who had handled the paperwork for her travel in
August 2008" (I.J. at 7, 9). The Immigration Judge further found that this testimony was
inconsistent with a US-VISIT document showing that the respondent was fingerprinted and
photographed during her August 2008 entry into the United States (I.J. at 7, 9; Exh. 5).
In response to her counsel's question regarding what happened to the 1-94 reflecting her
August 2008 entry, the respondent testified that:
What happens when they give you this permit at the entrance, when you enter, is
that we all show up at the place where they give you the documentation, we show
up as a family, and my dad is the one that takes everything and hands everything
back, because at the second window, which is where you show up when you're
driving in the car, my dad is the one driving, he's the one on the side of the
window, so he - we're sitting in the back and he hands everything in.
(Tr. at 36-37). When the respondent was shown the US-VISIT document showing that her
photograph was taken and she had been fingerprinted, the respondent answered:
Yes, yes, because when they give you the permit, you have to go in personally, to
get inspected, but what I said is that at the second window, there's another
inspection and, where they revise your documents, and because I was not driving,
my father and my dad was, were driving, but then, when we come to that line
where they stop us, we don't get out of the car. They just look at our documents
and give us the permit, but in the first one, in the first one, yes, we do come out to
have them check us and do our photos and fingerprints.
After making an adverse credibility finding, the Immigration Judge determined that
the respondent was inadmissible under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
1182(a)(6)(A)(i) (I.J. at 2-3, 9-10). The Immigration Judge also denied the respondent's
application for post-conclusion voluntary departure in the exercise of discretion (I.J. at 9-10).
(Tr. at 66; see also Tr. at 73). Our review of the record does not support the Immigration Judge's
fmding that the respondent testified that she did not get out of the car during her August 2008
entry. Moreover, as the respondent persuasively argues on appeal, differences in her testimony
are reasonably explained by the fact that she was answering two different questions-the first
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A205 131 985
about what happened to the I-94 she was given during her entry and the second about whether
she was personally inspected and admitted to the United States (Resp. Br. at 8-9; Tr. at 36, 66).
Consequently, this aspect of the Immigration Judge's adverse credibility finding is clearly
erroneous.
Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings consistent with this
order and for the entry of a new decision.
We find that a remand is necessary for the Immigration Judge to reassess the respondent's
credibility and conduct further fact-finding and analysis regarding whether the respondent met
her burden to establish time, place, and manner of entry, or instead is subject to removal as
charged. On remand, the Immigration Judge should explicitly consider the documentary
evidence submitted by the respondent regarding whether she departed the United States on
November 9, 2008, or instead remained present during the period in question (Exh. 3).
See section 240(c)(4)(C) of the Act, 8 U.S.C. 1229a(c)(4)(C) (providing that credibility
determinations must be made "[c]onsidering the totality of the circumstances, and all relevant
factors"). In light of the disposition of this appeal, we decline to address the respondent's
alternative requests for prosecutorial discretion and administrative closure at this time (Resp. Br.
at 9-10).
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November 15, 2013
File: A205-131-985
In the Matter of
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NORMA ANGELICA PONCE-ARRIAGA

RESPONDENT
IN REMOVAL PROCEEDINGS
CHARGE:
212(a)(6)(A)(i) of the INA, as amended - in that the respondent is

an alien present in the United States without being admitted or
paroled or who arrived in the United States at any time or place
other than as designated by the Attorney General.
APPLICATIONS:
Voluntary departure, post-conclusion or Section 240B(b) of the Act.
ON BEHALF OF RESPONDENT: SARAH W. H. OWINGS, Esquire

P.O. Box 89097
Atlanta, Georgia 30312
ON BEHALF OF OHS: SIRCE OWEN, Assistant Chief Counsel
DEPARTMENT OF HOMELAND SECURITY
180 Spring Street, Southwest
Atlanta, Georgia 30303
ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is an adult female native and citizen of Mexico who was issued a
Notice to Appear on February 8, 2012. See Exhibit No. 1.

At a Master Calendar hearing, held on May 13, 2013, the respondent admitted
UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
allegations 1 and 2 and denied allegations 3 and 4. A contested hearing was scheduled
for today's date in order for the respondent to establish manner and place of arrival and
were found to be true by clear and convincing evidence and the charge under
212(a)(6)(A)(i) was sustained in that the respondent is in fact present without being
admitted or paroled. The Court found removability to be established. See Section
240(c)(1)(A) of the Act.
The issue before the Court concerns respondent's applications for relief from
removal.
The respondent's sole application for relief at this time is voluntary departure,
post-conclusion. In order for the respondent to establish eligibility for this form of relief,
she must establish that she has had physical presence in the United States for at least
one year preceding the service of the Notice to Appear, that she has had good moral
character for at least five years preceding the application, that she has not been
convicted of an aggravated felony and she is not deportable under Section 237(a)(4),
which are security grounds. She also has to show by clear and convincing evidence
that she has the means to depart and the intention to do so and has not been previously
granted voluntary departure under Section 2408 after having been found inadmissible
under Section 212(a)(6)(A)(i) and, in this case, most importantly she must establish that
she is deserving of the favorable discretion of the Court.
Procedural History
As stated before, the respondent had contested allegations 3 and 4 on the Notice
to Appear. On today's date, a hearing was held in order to determine how and when
she entered the United States and whether she in fact had entered with a visa, which is
the respondent's position. A summary of her testimony is as follows.
A205-131-985
November 15, 2013
a hearing was held, which the Court will address in just a moment. Allegations 3 and 4
The respondent testified today under oath that she had several entries to the
United States and on each occasion, she indicates she had traveled with a visa. Her
testimony was not credible and the Court will reach that determination in just a moment.
But just in order to shed some light as to what exactly the testimony of the respondent
was, the following is what we can recap.
She indicates that she is 45-years-old, she is a native and citizen of Mexico and
she is a university graduate. She categorized herself as an educated.
She says that she last entered the United States in August of 2008 and she
entered by road, driving. She was asked if she had a visa at that time and she said yes.
She was asked if she had received any paperwork from the United States Government.
She then categorized what she received as "the permit that they give us" and her
rendition upon her attorney's questioning was this is what occurred.
She said we travel as a family. My father is the one who takes everything and
hands everything back. My dad is the driver, so he hands everything over and she went
on to explain in further detail upon questioning from her attorney that she had not faced
Immigration authorities, but that her father had handled all the paperwork because they
entered in a car as a family. That he was the one who handled everything. He
collected all of the passports, turned those documents in and received the l-94's back
and that he was the one who was for all purposes custodian of the Immigration
documents. She said that they went to a second point of inspection where they were
waved in and her father inadvertently kept her 1-94. She says that she has not departed
since that last entry in August of 2008 and that when her father and mother returned to
Mexico, he inadvertently turned in her 1-94. She says her parents departed. They
stayed approximately for three to four months for her mother's chiropractic therapy.
She was asked where the 1-94 was. This is when she explained that her father stored
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everything and we forgot to recover the 1-94 because, well, when you are in the United
States, you do not need it anymore and so she says he kept it. He also kept the 1-94 of
At that time, the respondent's counsel tendered what has been marked into the
record as Exhibit No. 4. These are four l-94's which the respondent has been issued,
past travel, and in fact she was asked about those documents because there was some
confusion as to exactly what she was referring to. Those documents were then copied
by the Court for the benefit of all parties. A copy was provided to the Government and it
was marked into the record as Exhibit No. 4 and what they are is four l-94's issued to
the respondent. She indicated that she does have the originals. They are in her
possession, but not here in Court.
She then was asked why the last one, the 1-94 that is in question now, was
tendered to the U.S. Government upon return. She said this occurred by mistake and
she testified that she has never entered the United States without permission. That
pretty much concluded the direct testimony of the respondent.
On cross-examination the Government developed several lines of questioning.
The first is that the respondent indicated that she first entered the United States with a
visa when she was approximately 12 or 13 years old. She says her father took them to
Disneyland to get to know the United States and then later on, on several occasions or
at least on one occasion, she traveled with her sister to Chicago on vacation.
She then indicated that she married in June of 1997 in Mexico. She was asked if
she entered the United States in that year. She said yes, she first entered sometime
around June 28 or 29, 1997. She says she departed sometime toward the end of the
year, but she is not sure.
She then said she returned towards Christmas, but it could have been in
A205-131-985
November 15, 2013
all of her siblings according to her. She says he turned it in when he left in error.
November in 1997. She acknowledged she received an 1-94. She was asked what she
did with it. She said she returned it. After several questions that were asked of her, she
1-94 is supposed to be returned upon departure.

She says her next entry, which occurred around Christmas of 1997. She
received another 1-94. She was asked what she did with that. She said "my attorney
has it" and I will note that that was not tendered to the Court. We do not have an 1-94
from 1997. She was asked then when did she leave after arriving the United States in
Christmas of 1997. Again she said she was not sure, but she says she did not leave
until 1999. She was asked if she was sure and she stated yes. She was then
confronted with a document that has been marked as Exhibit No. 4 indicating that she
entered the United States and received an 1-94 on June 10, 1998. Again she said, as I
said, I am not certain of the dates. Now she was then confronted with the fact that she
entered in June 1998, that that was in fact recorded, and she was asked when did she
depart next and she said maybe in 1999. Again, she said I am not sure when.
She was asked when was her next entry to the United States and again she was
not responsive and said that her departures were for one month or eight weeks at a
time to tend to her mother who was ill and her sister who had cancer, but that she did
not enter the United States until after her return in 1999. There was some confusion as
to when exactly that occurred and whether she was returning, departing, entering,
leaving. She was not really clear as to which country she was referring to. The Court
asked her to clarify and she did. She said she returned to Mexico in October of 1999.
She returned to the United States in December of 1999. Specifically her date of entry
was June 14, 1999. She was confronted with this document, Exhibit No. 4. Again she
then just said that she departed to Mexico in October of 1999. The record reflects at
A205-131-985
November 15, 2013
was non-responsive. She finally responded and indicated that she understood that the
Exhibit No. 4 that the respondent reentered the United States on December 22, 1999,
and she testified that she next departed the United States some time about three years
reentered the United States in September of 2000. She then changed her testimony.
Said she had actually stayed approximately six months out and returned in June of
2000. Again when she was confronted with the entry of September 2000, she then said
that she had actually returned to the United States in December of 1999, departed the
United States in June of 2000, returned to the United States in September of 2000.
This is again documented by Exhibit No. 4.
She was asked when was her next departure. She said maybe in 2003 or 2004.
She does not recall the month. Then she says she is not sure. At that time the
Government tendered what was initially marked as ID number 5 and has now been
marked into the record as Exhibit No. 5. That shows that she had a date of departure
from the United States on January 22, 2003. Again the respondent happened to recall.
She says, yes, it must have been true because my daughter was born in 2002 and I
remember she was small when we traveled, so that sounds accurate to her. She says
maybe her next date of entry was near March or April of 2003, more or less. She then
was confronted with Exhibit No. 5 indicating that her next date of entry was March 22,
2005, and that she again departed the United States on April 3, 2005. She was asked
whether she recalls traveling the United States in 2005 and she said yes.
She then was confronted with again Exhibit No. 5 indicating that she had
appeared at an interview at a United States Consulate in Mexico in order to apply for a
visa, which was issued on February 16, 2005, and then she suddenly recalled and
related to the Court that her purse had been stolen earlier and inside her purse was her
visa and her travel documents and again she is not sure when this occurred, but it was
A205-131-985
November 15, 2013
later. She was then confronted with some documentation that she had actually
some months before she applied for that visa. She in fact said that it was about four or
five months that had transpired from the time that she had her visa paperwork stolen
she returned in March of 2005.

Her testimony earlier was that she returned to Mexico in 2008 and then she was
again confronted with Exhibit No. 5 where the records indicate that she departed the
United States on April 3, 2005. She was asked how did the 1-94 get turned in. Her
answer, as it has been throughout her entire testimony, was I do not know.
In Exhibit No. 5 again she was confronted with page 7 indicating that her
testimony earlier that she had never gotten out of the car and it was only her father who
had handled the paperwork for her travel in August of 2008 was not particularly
forthcoming insofar as there was a U.S. visit documented photograph of the respondent
and she was in fact fingerprinted upon entering into the United States in August of 2008.
She was confronted with the fact that earlier she had said her dad had handled all the
paperwork and her response was "oh, I said that at the second window we did not have
to get out of the car, but at the first inspection point I had to get out. I was
photographed and fingerprinted". She was confronted by the Court with the fact that
she had not stated that at any time earlier. She in fact had stated quite clearly that her
father had handled all the paperwork, that nobody had gotten out of the car and that he
was the one who has handled everything, which is why the paperwork was never
returned to her. It was simply an oversight that the 1-94 was not returned to her.
She was then questioned as to whether the 1-94 was stamped and returned to
her and she said yes. She said that on that day she received her stamped passport and
a visa returned to her. Then she denied again, saying that she did not get out of the car
and that the father had handled all of the family's paperwork. She said she received it
A205-131-985
November 15, 2013
and when the new visa was issued. She indicated that when she received the new visa,
and then she turned it over to her father.

She also states she never entered the United States unlawfully. She also states
refused a visa and then she was confronted with the fact that she appeared at an
interview at the United States Consulate in February of 2005 to renew a visa. She also
acknowledged that she had first gone to a U.S. Consulate for a visa in 2003 and that
that request was in fact refused because she did not have some documents "that she
needed." This again is a direct contradiction to her testimony just seconds earlier
indicating she had never been refused a visa. She then acknowledged that from the
period of 2003 to 2005, she did not have a valid visa. She was asked where was she
and she stated in Mexico. She was then confronted that her testimony earlier today that
she had not left any time during the period 2003 to 2008 was not true and she said that
her testimony is that she had no departures since August of 2008, that her father turned
in the 1-94 and she remains steadfast in that.
She also indicates that upon entry in August of 2008, she did not intend to leave.
However, she did not disclose this either at the border or at the Consulate interview
when she obtained her visa last.
On redirect there were some questions to clarify what had occurred at last date
of entry in August of 2008 and she again reiterated what she had said after she was
confronted with the documentation at Exhibit No. 5, indicating that there were two
windows. At the first one, she got out of the car and the second one, no one gets out,
that they are simply waved in after he father handed over the documents. She was
asked how did you get your passport and visa and not your 1-94 and she says that her
father kept it to show it.
That was pretty much the conclusion of all of the testimony of the respondent.
A205-131-985
November 15, 2013
under oath that she never was refused entry to the United States or that she was never
The Court finds that the respondent has been clearly untruthful and that the
documentation at Exhibit No. 5 has revealed that she has been untruthful pretty much in
been disingenuous and misleading and has been self serving, but she also did the
same thing when she appeared for a visa at the United States Consulate, at least in
2005.
She has also been untruthful with the fact that she did not get out of the car and
she changed her testimony to indicate that it was her father who handled all the
paperwork. Clearly at Exhibit No. 5, page 7 the respondent appeared and she was
photographed and fingerprinted. She did not mention this to the Court until she was
confronted with that document and she had no choice because, frankly, the truth was in
front of her.
The Court finds that the respondent in applying for voluntary departure is
undeserving of the Court's favorable discretion. Furthermore, the fact that she has lied
under oath, not only today, but in the past, in order to be able to obtain entry to the
United States and she has overstayed her visa and that she clearly has returned the
1-94 in an attempt to document her return to her country and possibly not her overstay,
simply shows that she lacks the good moral character that would even be required for
her to obtain voluntary departure. As a matter of law, she is ineligible. As a matter of
discretion, the Court would deny her voluntary departure and order her removed to
Mexico on the charges contained in the Notice to Appear.
The Court notes that this is the most egregious form of abuse of the system
allowing for persons to enter the United States lawfully. This respondent has been
untruthful and has, frankly, outright lied to every authority of the United States regarding
11migration to get what she wants, so apparently she thinks it is perfectly fine to do so.
05-131-985
November 15, 2013
everything that she has not only presented in her testimony today under oath, which has
This is not acceptable and the Court will not tolerate it. Certainly I am not going to
reward her with a grant of the privilege of voluntarily departing the United States at no
At this time, the Court will enter the following orders.

ORDER OF THE IMMIGRATION JUDGE
The respondent's application for voluntary departure, post-conclusion, is hereby
denied.
The respondent is ordered removed to Mexico on the charges contained in the
Notice to Appear.
Please see the next page for electronic

signature
A205-131-985
MADELINE GARCIA
Immigration Judge
10
November 15, 2013
cost to the Government.
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I nni gr at i on J udge MA.DELI NE G6.RCI A
A205-131-985
11
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November 15, 201 3

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Name: PONCE-ARRIAGA, NORMA ANG...

For more unpublished BIA decisions, visit

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Owings, Sarah Weston Hayes

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Fans Church, Virginia 20530

File: A205 131 985 - Atlanta, GA

In re: NORMA ANGELICA PONCE-ARRIAGA

APPLICATION: Termination; voluntary departure

Immigrant & Refugee Appellate Center, LLC | www.irac.net

A205 131 985

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Accordingly, the following orders will be entered.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

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November 15, 2013