Himanshu Patel, A046 743 862 (BIA April 4, 2011)

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Dalal, Suresh H. EsqLaw Oces of Suresh H Dala200 Middesex Essex Turnpike Ste 106lselin NJ 08830-2033

Name: PATEL HIMANSHU

S

Excuv Oc r graion Rv

Bor of ron AppeOce of he Cek

5107 Leesbug Pik Suit 2000Fals Chuch, Vgnia 220

HS/CE Oice of Chief Counsel NEWP Box 1898Newak N 07101

A046-743862

ate of this notice: 4/4/2011

Encos s a cop of Boars csion an orr n abov-rrnc cas

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Pan brsCo Parcia A

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Cite as: Himanshu Patel, A046 743 862 (BIA April 4, 2011)

For more unpublished BIA decisions, visit www.irac.net/unpublished



US D f Executive Oce r Imigaion Reiew

Decson of he Boad of Imgaion Appeals

•

Falls Chrch, Vrgina

Fle A046 43 862 Newak NJ DateAPR -4 zon

n e HMANSHU PA L

N EMOVA POCDNGS

APPA

ON HAF OF SPONDN Suesh H Dalal sque

CHAG

Ntce Sec 23(a((D( &N Act [8 SC § 22(a(l(D( ] Cndtnal esdent status tenated

APPLCAON Sectn 26(c(4 wave eand

I

he espndent a natve and ctzen fnda, appeals the Apl 4 2009 denal f hs applcatn a wave unde sectn 26(c(4 f the atn and Natnalty Act 8 USC § 86a(c(4he ecd wll be eanded he pceedns

he espndent becae a cndtnal peanent esdent f ths cunt n Septebe 998by vue f hs June 20 99 aae t a nted States ctzen ( at 3 he espndet and hs

ew dvced n Mach 30 200 leadn h t le an applcatn a sectn 26(c(4 wave wth nted States Ctzenshp and atn Seces ("USCS (J at 34 h 2 On June 30 2003 the Dstct Dect tenated hs staus cncludn that he aed hs ewfe the pupse f pcun enty nt the nted States (J at 2 h 3 he espndent subsequenty enewed hs applcatn bee the atn Cut The atn Jude detened that the espndents testny the testny f hs w suppn wtnesses and hs dcuentay evdence dd nt establsh hat he enteed nt hs aae n d th (J at 30See 8 CF § 265(e(2

On appeal the espndent allees that hs e aey pvded h neectve assstance

f cunsel and equests a eand cnsdeatn f evdence that the attey alleedly led t subt Speccally the espndent assets that he etaned Davd K Wene attey based n Det M t see ecnsdeatn fs denal f hs sectn 6c4 wave applcatn and late t pcue epenn ae the atn Jude enteed an in absentia de n Octbe 9 006 He clas that M Wene lst the llwn dcuents that wee ncluded wth hs USCS equest ecnsdeatn (1) adavts f hs ew (2 adavts f hs ew'sthe (3 an adavt f hs ew's uncle (4 an adavt anthe f s ews uncles(5 an adavt f s the (6 an adavt f s ew statn that she aed the espndentn d th ( an afdavt f e espndent self (8 cpes f ees sent t the espndentby s ew and (9 cpes f 998 and 2000 nt ets Meve nce epenn was




A046 743 862

granted, Mr Wenger engaged the sevices of Rober Frank an aoey located in Newak, NJ, at the last minute. Mr Frank was not in possession of the aovementioned evidence while representing the respondent durng e nal hering

n Maer ofLozada, 19 & Dec 637 BA 1988) we hed at a motion to reopen or in this

cse a motion to remand) ased on ineective assisance of couse requires: 1) that te motion be suppored y n adavit of the allegedy aggrieved respondent seting in detail the agreement tat was entered into wih counsel with respect to the actions to e taken and what representions counsel did or did not make to te respondent in this regard; 2) tat counsel whose inteiy or competence is eing impugned be ined of the allegations leveed against hi nd be given an oporunity to respond; and 3) that he otion reect whether a complaint hs been led wth appropriate discipina athorities with respect to ny violation of counse's ehical or ega responsibilities ad if not, why not Id. at 639; see also aer /Compean Bangay and J-E-C 25 &N Dec A.G 2009) u v. Ashcro 29 3d 127, 133 3d Cir. 2001) Here e respondent as ly compied wi ese requireents

It is aso reuired that te claant estalish that he suered prejudice as a result of his aoey'sineectiveness Maer ofLozada supra at 640 n this regard, the respondent as sumited a copy of a Juy 6, 2007, leer addressed to h, in which Mr Wenger adits that he misplaced the respondents Fo I-751 USCIS section 216 c ) 4) waiver application) le he record also contains ultiple ees om Mr. Wenger to the respondent in which rer counse calls attention to the pretria deadine r subiting docuentay evidence he respondent her incudes copies of eails that e sent to Mr Wenger on Mach 6, 2008, July 2, 2008, and February 9, 2009, asking him to make sure te docuentation sumied to USCS would e availabe at ismigration Cour heing Finally he provides copies of various pieces of evidence tat were notled in a tiey fasion

n denying a section 216c)4) waiver, he miation Judge empasized the asence of docuentary evidence of a bona de arriage J at 8-10) Terere, we conclude tat te respondent as shown prejudice o Wenger's ilure to produce te pieces of evidence noted aove We wil reand the record r te paries to subit additional evidence and arguent regarding he bona des of the respondent's arriage to his exwfe The iation Judge should then enter a new decision regading the respondents application r a waiver under section 26 c ) 4) of the Act

Accordingly, the llowing order is entered

ORDER The denia of a section 216c)4) waiver is vacated and the record is remanded r

her proceedings consistent wh tis decision

FO H BOAD

2




U S DPARTMNT OF JUSTICEXCUTIVE OFFIC FOR IMMIGRTION REVIEW

IMMIGRATION COURTNewark, New Jersey

Fe A 046 43 862 Apri 4, 2009

In the Matter o

ANSHU PAT, IN REMOVAL PROCEEDINGS

Respondent

CHRGE: Section 3 (a) () (D (i) of the miraton andNationalty Act

APIATION: Review of I-75 and vountary departure

ON EHAF OF THE RSPONDENT:

Roert Fran, Esquire

ON EALF OF TE DEPARTMNTOF OMELAND SCURITY:

Janice Montana, Esquire

ORAL DCISION OF THE IMIGRATION JUDGE

The respondent s a 3-year-old, remarried male, natve

an citizen of ndia

The Notice to Apear s marked into evidence as Exhbit

t's ated Setemer 7 0 t alees tha the

reondent ecame a condtional ermanent resident of the Unted

Sttes on Seteber , 998, bt that his condit ona status was

teminated on une 30, 00, ecause the Dstrict Director

deermned that the marriae was entered into to procure entry



k

o he Uned aes A a mase caleda heag o Ocoe

00 he espoden hough cousel admed he a egaos

ad coceded he chage On ha ass hs emovay has

ee esashed y clea ad covcng evdece

he Cou has evdece xh whch s he 75

ha was deed ad aso xh 3 whch s he Jue 30 2003

dea ee We also have n evdece xh 4 whch s he

so caed admsave ecod

· ode o e e ge o a wave hs case M

ae eeds o demosae ha he ad hs we aed o comply

wh he equemes o eco 16 o he Igao ad

Naonay Ac u ha hey have a good easo o ag o

compy, amely ha hey had ee dvoced hs s a wave

ude econ 16 (c) 4) (B o he Iga o ad Naoay

Ac hese waves ae avalae whe a condonal pemae

esde ad hs peog spouse o he peong spouse ae

uae o e a o peo o, aeave y, ae uae o

aend a jon evew wh gao auhoes o

deeme he egmacy o he maage ad he easo hey

ae uae o do hose hngs s ecause hey ecome dvoced

ha s wha we have had hs case

The dvoce wave was dened y he sc Deco

ad ow hs Cou has he jusdco o evew he dea o

ha wave a o ad de novo ad we ca deemne ad mus

deemne whehe o no hs was a egmae maage Ad,

A 046 743 862 Ap 14, 009



k

agai, he burden of proof by a prepoderace of he evidence is

o he esponden o demonsrae he bona f ides of his marriage.

The Cour heard esimony from Mr ael He esified

ha he married ea Pael She is hs firs wfe ad he wife

who peiioed for him and go him his iiial permanen reside

saus He esified ha he became egaged o he o Jue 2

1996 He aer chaged ha esmoy and said he was egaged o

her in Augus of 1996 He esified ha he me her one week

befoe he became egaged o her This marriage was a arraged

marriage was arranged by he pares of he bride ad he

pares of he goom ea was abou 2 years old a his ime

She was bor April 5 1996 He esified ha she had come o

he Ued Saes a he age of 2 They were married on Jue 2

199 They honeymooned in an hsoric area of ndia for a week

A ha poin, hey spe abou six weeks a a reaives house

in dia and hen his wie, ea, rered o he Ued Saes

o esume her sudies Meanwhle, he responden, Mr Pae,

remaned n ndia awaing he processing of his igra visa.

He came o he ned Saes on Sepember 998, wih ha

visa

Upon arriving n he Uied Saes, Mr Pae wen o

ve Poand, egon, w his wife He ived wh his wife

for wo days She was sayng, " hink is o going o work

Mr. Pae hug aoud fo anoher coupe of weeks, ryig o

communicae w s wfe, b e was unsuccessful Afer abo

A 46 43 862 3 April 14, 29



k

f. r .'1·.'<"

two weeks he came to New Jersey where he ea lv wth hs

cous total he lved wth hs wfe those two days ad o

more.

Mr atel testfed that he ad her parets both tred

to persuade her to save the marrae He testfed that

sometmes hs wfe was very rude. Mr. atel, however dd ot

expla to ths Court the reaso why hs wfe decded that she o

loer wated to be marred to hm

Mr. atel testfed that he fled otly wth hs wfe

Federal come Tax Returs for 998, 1999, ad The Court

would ote t does ot have 2 returs.

Mr ate testfed that he ad hs wfe ot dvorced

March of 2 She has subsequetly remarred ad so has he

He ow has two Uted States cte chldre.

Mr atel was asked why t mht be that hs exwfe s

ot here to testfy o hs behalf ad he testfed that t s

probaby because her curret husbad does ot wat her to be

volved the respodets problem

Mr. ate testfed that there were amost , peope

at hs wedd da ad 6 or so at the recepto.

Mr. ate testfed that he does ot have ay

documetato show ot check accouts or other ot

assets He explaed that hs ex-wfe, Deta ad he dd ot have

a ease toether because she aready was eas the property

eo whe he arrved. He testfed that he dd ot marry hs

A 46 43 6 4 Aprl 4, 9



' (. .-

exwfe for he reen car bu he d acnowlee ha hs ex

wfe sen eers Igran n wch she expresse er

belef a e dd marry her smpy for he reen card

Mr. ael als esfe n e queson of vounary

eparure I appears he s egbe for a reef.

Te Cour nex hear fro rwn ae. He s 50 years

ol. He s e respnen's frs cousn. e s a lawful

permanen resden. He came o he Une Saes n 2008 an

lves n New ersey. wn Pael esfe a e responen's

wen was an arange marrage arrane by he parens. He

esfe hey were marre n June f 99 an was eher

e 2 or he 28. He esfe a e aene he wedn an

ere were abu 50 peope a e wedng. Tere was a nner

pary pror a n he v ae where husands f people

aene.

Mr. rwn ae esfe ha ea probably ha a

byfrend an d no wan o say w e responden He

esfed a Dea's parens were yn o save he marrage.

The Cur nex ear frm eerlan ael He s 38

years o . He s ere n an H-1 vsa. He as been n he Une

Saes sne 00. He s e espnens bro hern-aw. He s

marre o e responens sser e lves n Edson New

Jersey. He esfe ha e aene e weng n June 28

99 n Ina. ha s o say f ourse he weddn of he

respnen He esfd a was an arrange maae an

046 43 862 5 pr 4 2009



k

there were abou 500 peope at the weddin

The reulaions a 8 C. F. R. Section 6. e 2) direct

the iration udes n the consideraion o these ype o

waiver cases. The reulaions speciy that in considerin

wheher an alien entered into a quaifyin marriae in ood

aih the ude mus ook a a number o thins includin

first documentaion relain o he deree to wich he

inancial assets and iabiities o the paries were combined

Second he documentaion concernin he enh o time durin

which he paries cohabied ater he marriae and aer te

alien obained permanent residence. e must aso ook a

evidence reardin birh of children durin te marriae and we

must ook a other evidence deemed pertinent. These iems o

course are oriinaly considered by the irec or ecause he

irector o Citizenship and Iiration Service has oriinal

urisdiction and we as iraion udes hen review te denials

o the istrict irecor.

In e presen case here is no evidence o co

minlin of asses because i is not alleed ha ere was any

co-minin o asses. This Court does not have anythin

re lecin a shared li e oether ndeed he marriae or all

practca purposes ased wo days. They only lived oeher or

two days. Remarkably enouh hey seem to ave oint tax returns

or wo years even ouh ey did not ive oeer and

appareny did no have any counication aer he irs wo

A 06 73 86 6 April 009



k

weks that the esondent was n the United tates o the

thngs that we usuay ook o in these kds o cases ae

abent this case. We ook o things such as evidence o

utites beig used at the same addess. It could be hone

bis It coud be cabe teevison. It coud be electicty

thngs o that tye. hee is none o that hee. We ook o

evdence that the ndvduas shaed cedit cads o banng

acc ounts here s no evidence o that hee. We ook o

evidence that ca insuance health insuance e insuance

eects the exis ence o the husband and the wie n the

maage ethe as beneicaies o joint ownes o the nsuance

oicy but we o couse have none o that hee. We have no

eses. We have no evidence o oety uchased togethe

ncudng ea estate. hee is ealy nothing hee in tems o

this evidence o comingling o assets

Moeove n tems o bth o the chiden well

the wee no chiden bon o ths maiage. So thee s none

o that eithe. We have a emakaby scant documentay e n

this case and what that means s that ate has to ovide us

with vey vey come ng vey esuasve testmony as to his

witnesses n ode o him to w this case.

obaby the most imotant bit o evidence in suot

o M atel's case is the evidence with egad to his maiage

ceemoy and the numbe o eole that wee involved and the

eboateess o that ceemoy. hat woud seem to go to the

A 46 743 862 A 14, 2009



qeson of auhency of he marrage I wold appear ha

a eas one of he pares hough was a rea marrage f a

ha expense and roub e was enered no for, for he sake of

he marrage Of corse, we can have a suaon where an alen

responden knows s no a egmae marrage, b he U S.

cen spose be eves s a legmae marrage

Alernavey, we cold have a saon where boh pares o

he marrage know s frauduen and, alernavey o ha, s

he saon where boh pares o he marrage know s a

egmae marrage.

W h regard o he marrage ceremony, we have a few

phoographs here, bu ha s abo . We aso have he

esmony of wo addona wnesses, wo relaves f he

responden ha was a large weddng, alhough he nmbers do

no seem rea y o mach geher very we n erms f how many

peope were aca y a he weddng. he Cour s no gong o

make o mch of ha because mos people, he Cor beleves,

are no very adep a ryng deermne ses of crowds and so

he Cour s no gong o make oo much of ha Suffce o

say, here may have been a arge weddng here and o he exen

ha we can beeve ha here was a arge weddng, may

rvde evdence o bona des f he marrage.

On he opose sde of he ledger, we have all of he

ngs ha are absen here We obvosy do no have he

esmony of ea ae . We do no have anyh ng from her her

A 046 743 86 8 Apr 4, 009



k

than a 200 lette whch says essentally nothn about he

aae othe than that she beleves t was enteed nto n ood

fath and that t was he falt that the maae boke down

ut she s not hee to testfy and that s nfotunate because we

would have had, am sue, questons fo he about how t comes

to pass that she aes a man and then lves wth h fo two

days n the nted States, and then not only does not want to see

hm aan, but does not even povde hm wth an explanaton of

why t s that the maae s falln apat t s emakable

n th s case that thouhout the testmony of M. atel, he has

neve ventued even a ess as to why t s that hs wfe decded

that she dd not want to lve wth hm any moe he ot fnds

t emakable that he does not appaently have the fantest dea

of what happened to hs maae One would thnk someone wold

have at least a costy that would demand soe sot of answe

o at least some spposton, some hypothess about what t was

that ths woman was lookn o that she dd not et n ths

maae and why se would decde ate two days that she had had

enouh of M atel. But we dd not et any of that

One of o wtnesses ventued oth the poposton

that she had a boyfend, bt whee he ot ths nfomaton o

ths supposon ema ns nexplaned because M atel hmself

neve sad anythn abot hs wfe havn a boyfend So one

odes whethe the wtness knows moe abot the espondents

aae than espondent hmsef does.

A 046 43 862 9 Apl 14, 209



k

Ovea, the out fids tha the respodes

testimoy was o very compei, or was the tesimoy of the

two additioal eative witesses woud ave reqired very

o testioy, very detaied, very expository testimoy to

overcome the deat of ifomatio i docmetay om i tis

record e ourt fids that the respode as ot met that

urde of poof All the this tat we are tod to oo fo i

te reuatios we ave ooed for i this case ad have ee

uae to fid ad so the out feels i this case tat the

respodet as simply aied i his ude o proo

e respodet has requested voutary depature i te

aterative hat wi e provided o him i the execise o

discretio for te axim peiod wih is 6 days po posti,

however, a $50 voltary departure od witi the ext five

usiess days

he Cort wi ete te folowi oders

ORER

I HERBY ORERE the espodets appicatio fo

waiver de ectio 216(c) 4 B o te iratio ad

Naioaity Act is deied

FURER RR te respodets appicatio for

volay deparure is rated uti Jue 5, 209, po,

howeve, te posti witi e ext ive usiess days o a $5

voutay depatue od te evet the respodet fais to

post the od or ais to eave e ited tates e equied,

A 046 743 62 0 Api 14, 2009



the respodet shal be deported to Idia pusuat to the charge

the chargig documet.

A 046 743 862 11

/EUGrigrato Judge

Apr 1, 009



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Documents

Himanshu Patel, A046 743 862 (BIA April 4, 2011)