Mickael Christian Martin, A076 549 309 (BIA Dec. 27, 2013)

8/13/2019 Mickael Christian Martin, A076 549 309 (BIA Dec. 27, 2013)

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Diaz, Daniel W. EsqLaw Oice of Dani W. DiazP.O Box 4584Sunnyside NY 1104

Name: MARTINMCKAEL

p f

Executive Oce r Immgraton Reiew

Bd Ign AlsOc h lk

5107 leesburg Pike. Suite 2000Fa Church, Vrina 20530

HS/ICE Oic o Chie Counse NYC26 Fderal Plza, 11th FloorNew Yok NY 0278

A 076-549-309

a of this noice: 12272013

Enclosed is a opy of the Board's deciion and order i the above-rereed case.

Enclosure

Mb:Py

Snceely,

D ctDonna Ca

Cef lek

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For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Mickael Christian Martin, A076 549 309 (BIA Dec. 27, 2013)


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U.S. Dptmt f JtcExeJtive Oce r lmmigatoQ.Revew

Decison of he Bod of Imaon Apeas

Fas Curc, Vrga 2050

Fi: A076 49 309 - w Yor, ate

n r CKAL CHRSTAN MARN ak.a Mha Mrn

N REOVAL PROCEEGS

APPEAL

ON BEHALF O RSPODENT D W iaz Esqure

O BHA O HS Caro oorAssistant Chf Cons

CHARG

DEC 2 7 013

ote Se 237a)()(A), &N At [8 SC 1227(a)()A] nadmssibe at tme of ntr or adjustmnt of staus understio 212(a)6)(C) &N At [8 U.SC 1182a6C))] -Frau or wi misreprsenttion of a matra t (sustand)

S 237a)()(A, &N At [8 S.C 1227a))(A] -nadmssib at tm of entr or adustment o sts ndrstion 212(a7AI, l&N At [8 USC. 182(a)7A)(] mmgrant no vad mmiant vsa or ent doument sustaied)

S 237(a)(3)), &N At [8 S.C. 1227(a)3)D] -as m of Untd States itzensp not sustai)

APLCATON Teination

Th rspondent, a native and tizen of rane, appas the mmgraton Judge'sOtobr , 201 sion nding him rmovab d ordrng m removd to Fran. Theappa wi b dsmssd

The Bo revews an mmigraton Judg's ndgs o t, inuing redb

dtrminatons and undr the aw of th Cruit wth jursditon over ths s) the ikehood otur vnts undr a "ar roous stanrd 8 CF. 1003.d3)(); ee Hungv. Hode 77 d Cir 20 e reviw a othr issues, nuding uestions ofaw,udgment, or dsreton, undr a de novo stnd. 8 CR 1003 d)3)ii).

The mmigration Jug dd not ar e in nding that n 99 th respondnt faseaimd that h w a Unitd Stats itizn in an eor to gain ent ito Untd Stats andthat he id not retrat this se aim of itzenshp nti aer mmigration agnts onontdm with ination om omputer rords tat indiatd he was t a tizn o rneJ. at 4-, 8. Atough the respondnt ondes hat h se ame Unted Statstizenship, h gues that the Depment of Homed Surit (DHS has not dmonstrat b



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A6 549 3

clear and convcg evience that his reactio of his lse statement wa ot made"oty an ithout elay so as to negate the legal eet of e lse staemet (xh 6Responents Br at 4-5). See Matter of Namio, 14 I&N Dec. 412 (BIA 1973) (ning that aretraction mae year aer a aien's itia fase statement, whe it appeare hat isose ofthe lsity of the statemets was imminet, was neite oltay nor timey) Matter of M-,9 I&N ec 11 (BA 16) (ndig that a se statemen as o "lse testimony s a maerof aw becaue e alie mae a imey recntation of his o oitio a wtout delay);Mater ofR-R, 3 &N Dec. 23 (BA 149)

On apeal, the responet caims hat the vrious documets submied by the DHS inoetio ith te events of 5 cotai inteal icoisteies that undermine te DHS'sclaim tat he responent id not timey and vountariy react his lse statements(Respondent's B at 45 xh 4 We disagree Atough a memoraum to le pepred by anocer ame C Raie states that the espondent "claime that his er was a naturalizecitize of ane the to memorana prepare by he ocers ho apparey octe therespoet's secoary insetion, Jes Cais d Wiiam Deamate, ae in agreemet that

the resoe caime ta his her was a nauraie Ute States ciien, OfcerDeamater's memorm iicate that te respoe caime his te as aso a ehcitize (x 4. Wile Ofcer Raine's memorandm is icosistet ith the memornaprepe by Ofcers Cais n eater, te Racine memoradum a ate 3 day aer herespoents primar and seconday inspections ad appears in the nature of a suary of theetire encounter Accoringy, tis incosistency does not sigicaty udeie te proatiealue of these docments Similarly, alhough Ofcer Cais's memoraum appers to be anicorrect ate, e n that this icosistey does ot erie the cotents of thememornum, namey the asseio hat the respoet i no reat his fase cam ofitizenship uti ae he was pesente w eiece of is lsiy (x 4)

The respondent oes not rmatiely ispute he DHS's asseion that he reacte his lseitieship cam ony ae beig cononte with te DHS s eiee tha he a not aUite Staes citizen. Instea, the respondet submite a adait which sates the lloig:"At he boer post, initially to an oce hat was a ited States citien Later, tod theocer that I w a citizen of France (xh 6 at 4) Given he DHS's eidence conceig theeouter of Augst 5, 1995, n in the absee of n amatie accout by the espoetconceig e events ch led up to is recantation of his false itizesip claim, we n oero i the mmigratio Jge's olsio that te responet i not vouiy a timeyrea his se satemet (I.J at erere, we agree ih the mmigration uge tat herespodent is removable having been inamissible at the time of hs adjutme of statusder setios 212(a)(6)(C(i) ad 12(a)(7(A)(i(I) of the mmigration and Natioaliy Act,

SC 12(a)(6)(C)(i, (a(7)(A(i)(I Accorigly, the responent's appeal il beismisse

ORDE he appeal is ismisse.

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. PARMN O F UT IC

XCUTIVE OFFICE FOR IMIGRTIN RVIWIMMIGRATION COUR

File A 76 549 309

In te atter of

MICL MARIN

Respondent

CHARG

APPICAION:

New York, New Yor

ate: Octoer 5, 2011

IN RMOVAL PRCDING

ection 23 (a) ( 1) (A) of te Iigraton Act,an Alien who at te te of entry or

adjustent of status was wthin one of theclasses of Aliens inaissile y the lawexisting at such tie, Aliens wo see toprocure, ave sought to procure or aveprocurd a visa, other docuentation oradmssion into te United tates or oter

enefit provided under te Act y fraud or y

willfully isrepreenting a aterial factunder ection 2 1 2 (a) (6) (C) (i) of teIigration Act;ection 23 (a) ( 1) (A) of the Iigration Act,an Alien who at te tie of entry oradjustent of status was within one o ore of

te classes of Aliens inadmissile under telaw existing at tat tie, specificallyiigrants not n possesson of a vaiigrant visa or oter docuent as asustitute terefore and not exept fro

presenting suc a docuent under ecton2 12 (a) ( (A) () (I) of the Iigraton Act;eon 2 (a ( { of e Iigraton Act,an Alen wo as falsely represented hiselfto e a citien of the United tates for anypurpose or enefit under this Act

erination


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AEARANCES:

ON BEHALF OF RESONDENT:

Dael Wlla Da Esqure

ON BEHALF OF THE DEARTMENTOF HOMELAND SECURIT

Carol A Moore Esqure

ORAL DECSON OF THE IMMGRATION JUDGE

Te Resodet ts case was aced eoval

roceedgs troug te Notice to Aear ssed y te Deartet

of Hoelad Secrty Jue 2 3, 29. Tat docet s Et 1

te record. It states te tree carges refereced ave.

Te Court as cosdered te ostos of te artes as

to weter te Resodet s suject to eoval as carged ad as

cosdered te stateets of te attoreys te docets tat

ave ee sutted as evdece al of wc ave ee adtted

ad aso te writte stateet of te Resodet wc was

iclded te record as Eit 6

Te Resodet i leadg to te Notce to Aear

adtted alegatos oe two ad tree ad aso adtted

alegatos seve ad egt ut deed allegatos four fve

ad s Allegatos four fve ad s reate to a ecoter

of te Resodet wt Igratio offcers at te order etwee

Caada ad te Uted States i August 199 5

I also ote tat HS agreed a dscusso o te

record Jauary 1 8 2 1 1, tat te secod carge stated aove

A 549 39 2 Octoer 5, 2011


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wen refers to e of entr or of adjusent of stas,

reaes o he Responden's sccessfl applcaon for adusn

of staus to lawfu resden stats, wc was fnaze n pr,

2000.

The Deparen of Hoan Secr as the burden of

proof o esabsh tha he Respondn s subject o reoval,

especall snce he Dpartent concedes n aegaon hree ta

he Respondent as hs staus to lawful perannt resden

roug e egal process esablsed b te ct an e

reguaons.

Te specfc ssue s whether he Respondent

srpresene s egal saus when he was qesone b

Igraon offcers as he sougt to ener e ned Sates fro

Canada n 1995.

thog e Court oes not rel sole on the

Respondens saent, I do noe hat n xbt te Responden

does sa ta e dd ntall e he offcer a the borer e

was a U. S ctzen. nd he ndcates hat "ater e old he

offcer e was actua a ctzen of France.

he record ncudes other docuents e have a dcson

dnn natralzaon to te Responden ssued b e Deparen

of Hoeland Secrt Ths s x 3 n the record. Ths

docuent suarzs aeral apparnl contane n he DHS

record, but the Cor beeves t snt prar source nforaon

and s no necessar for the Cour o rel on ha ocuen I

549 309 3 Ocober 5, 2011


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is consistent with the other evidence, but I believe it's

derivative of those documents.

The record includes a contemoraneous memo reared

August 8 1995 by an Iigration officer, along the Canadian

border. This is in the record as art of xhibit 4 In that memo

it indicates that when the Resondent was questioned at the border

he originaly stated that he was a citien of the nited States by

birth. It indicates he was referred to secondary insection which

means a more formal, more deliberate questioning away from the

imediate area where eole are assing by the officer and

ansering a few questions, tyicaly establishing their

adissibiity in a minute or less.

During secondary questioning the Resondent is reorted

by this memo to have stated again that he was born in the . . ,

but had lived most of his life in rance. It aears that this

statement may have been the resut of a question about what the

Imgratin officer's memo describes as a slight accent that the

Resondent aeared to have, which might be a reason for the

officer to be susicious about the Resondent's claim to be a

citien of the U S. by birth. The exlanation given that the

Resondent was born on U. S. soi, but later gre u in France

woud in fact certainly tend to exlain why the Resondent might

aear to have some accent that was not tyica of eole in the

nited States.

he memo then indicates that it was not until after the

A 549 309 4 ctober 5 201 1


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Respondent was confronted as the eo states with inforation

derived fro coputer records aout the Respondent's entry nto

the nited States as a nonigrant, that the Respondent did

adt that he had not een orn in the Unted States.

The case law concerning srepresentation and fraud to

otan enefts nder the Igration Act does recognie the

concept that a stateent ay e ade whch is false and which ay

involve the ntent to isrepresent and otain a eneft throgh

frad Yet the person ight so proptly retract the stateent

that it may not e considered as a asis for a findng of

nadsslity in the future, since the person corrected the

pulsve stateent within a very short te

The Court does not elieve that the process descred in

the eo in Exht 4 represents a propt retracton of a

stateent ade y an applicant knowng that stateent was false,

ut who then corrected hiself wthn a short te to straighten

out the ispression

Instead the eo in Exhiit 4 gives the picture of a

person who hoped to pass through the order checpoint y clamng

U S citien y irth When questioned aout it, showed a

driver's lcense fro the nted States, gave a stateent to

explain why he appeared to have an accent that was arousng the

curiosity of the officer at the order, and only when tod that

there was a record contradicting his story, then said in fact he

was not orn in the nited tates dont thin ths is a prompt

A 76 549 30 5 Octoer 5, 2011


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etaction. I hink hs is gradl surrede to the evdence

ad the expeece of the Iigation offces.

The recod inudes othe documentay evidence

ncling a staeme give by the Responden on a pied fom in

efeence to the poposed denal of hs appato fo

nataton. In that sateme, whch s maked as Exhbit 4,

the Responen sys that the nataliato exminer who

ntevewed him oigialy was not eve wae that hee had bee

a pobem fo the Respodent a he Cand boe 1 5 It

does appear this is plasible bease the deial of naturaizato

also indiates hat additiona informatio came up afte the

eview ws completed; d frther, he Co otes tha he

ecods from 1 5 ae nder a dffeent en egistaton e

than was used whe he Respodent appied for adjstmet of

stats, whih woud ndicte that t that tme he Iigration

Service did ot conect the 95 incidet wth he pplicaion fo

stment

One ppose of having biomecs fgepnt pocessng

for liens at the pesent tme is to ty to idetfy ay othe

ecods that may exst in any Immigaton o Customs database e

cetera, tht wold fsh iformaion elevat to the lien in

quesio. he ort ends o ppose hat S wouldve come p

with he ifomation abot the Respondens poblem on the

Canadan borde at some poi befoe issig the decision on his

aalo appcton Is appaenly not ncoon fo

76 549 30 6 Octobe 5 20


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(

teviews to be coducted befoe all such ocessig of comute

ifomato is completed. The Cout is ot satsfied that

would ot hae eaized that a poblem existed fom 199 uess

the Resodet ad metioed that to the Immiato office.

oweve, the Cout believes tat eve if te Respodets

disclosue of such a oblem to the atualizato office was te

sole souce of the ifomatio leadig to the deial of the

atuaizatio applicatio, still this does ot mea that the

Respodet did ot make a false claim to . . citizeshi at the

time he was at the bode i 99

The Resodets appicatio fo adustmet of status,

xhibit , whic was appoved i the yea 2, does te

elevat questio fail to discose that the Respodet eve made a

fase statemet o used faud to gai a beeft ude te

Immigatio law The Respodet, at te time he cometed that

appicatio, cetaily should ave bee awae that e had act

doe so The Resodet to some extet is suggestig that hed

ealy fogotte about the specific pobems. e kew thee a a

poblem at the Caadia bode, but he fogot that t ivolved him

claimig to be a U. S citize This is ot ecessaily the most

pausible explaatio, but eve if it is techcally coect the

Cout believes tat the Respodet sill gave a icoect aswe

coceig a icidet e soud ave had i mid as he as

appyig fo a gee cad sice at te Caadia bode e had

bee efused ety to the ited tates. d the Cout believes

76 49 39 7 Octobe , 201


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,-i

that the evidee as a whole is oe tha sffiiet to ostitte

lea ad ovi evidee that the espodet did se a false

statemet, a kow false stateet, to attempt to obta a

beet de the iato t whe he was stopped alo the

aadia bode i 199

Fo this easo the ot believes that the Depatet

of Hoelad Set has establshed tt the espodet s

sbjet to eoval ist, the ot believes HS has esablshed

the fist hae bease it sees lea to te ot that te

espodet did eae i odt edei hm iadmssble de

Seto 212a) (6) ) ) of te Iato t at te time of the

eote o the aada bode, ad teefoe was assble

fo that easo i the ose of hs appliato fo adstmet of

stats.

he ot also believes that espodet s eovable

de the seod hae bease he was admissble de the te

fats de Seio 2 12a) 7) ) i} I at the tie he was appli

fo adstet of stats.

he ot does ot ssta the td hae bease te

Cot believes that the statte qesto, Setio 23a) 3) D)

of the Iatio t, does ot exted bak te to evets

that oed 199, sie the statte tself was eated afte

that tie ad is ot etoative i effet i this ead So the

td ae s ot sstaed b the ot; the othe two haes

ae ssaied

6 49 09 8 tobe , 2011


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f

i

nce the Reondent ject to eoal he ha the

bden o poo to how h elglty o any om o ele

de the Igraton ct he ecod nclde dcon o

ethe the Repondent elgle o cetain tye o elie.

The Cot dd conclde that the Repondent aeaed to e

nelgle o any tye o ele that old allo hm to ema

n the Unted tate, at eat any type o rele o whch he ad

any a to aiy. nd the Cort extended te to the

Reondent to conde whethe the Reondent whed to appy o

oltay depate n the altenate. he Reondent today

tog conel, ha ndcated he declne to do o.

ince thee no ele applicaton eoe the Cot,

the Cot elee the oe ode to ode the Reondent

eoal om the Unted tate to Fance aed on the t two

chage n the Noticeto pea and not on the thd chage a

exlaned n ti deciio nd t o odeed

-N VMCKIgaton dge

76 59 309 9 ctoe 5, 201


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/I,

ERIFIE E

( '

I hereby certify tat the attaced prceeding bere

. VOMK, in te matter f:

MIKE MRTIN

76 54 3

Ne Yrk, Ne Yrk

a eld a erein appear, and tat thi i the riginal

racript theef fr te file f te Exective Oice r

Iigratin Review.

lth/bjn

inett arleman, Trancriber

YORK ST ENOPHI SER V I ES, IN.

34 Nrth erge Streetrk, Pennylvania 174 1- 1 266

(717) 854-77

ecember 1 211

mpletin ate

Documents

Mickael Christian Martin, A076 549 309 (BIA Dec. 27, 2013)