Freshwater, Patricia, Esq. Schwamkrug, Freshwater & Lopez, PLLC P .0. Box 796844 Dallas, TX 75379

Name: GODKE, BRETT RICHARD

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Qffice of the Chief Clerk

5107 Leesburg Pike. Suite 2000 Falls Church, Virgmia 20530

OHS/ICE Office of Chief Counsel - DAL 123 E. John Carpenter Fwy., Ste. 500 Irving, TX 75062-2324

A 059-435-050

Date of this Notice: 5/16/2014

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

Enclosure

Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise

Sincerely,

Donna Carr Chief Clerk

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)

U.S. Dei>artment of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

..

' Falls Church, Virginia 20530

File: A059 435 050 - Dallas, TX

In re: BRETT RICHARD GODKE a.k.a. Bret Ghodak:e

lN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Patricia Freshwater, Esquire

MAY 1 6 2014

APPLICATION: Joint petition to remove conditional basis of residence (Form 1-751)

The respondent appeals from an Immigration Judge's decision dated August 13, 2012, finding that he had abandoned his petition to remove the conditional basis of his lawful permanent residence status (Form I-751), that his application for voluntary departure was abandoned, and ordering his removal to India. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R § 1003. l(dX3)(i). The Board reviews 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).

We agree with the respondent's argument on appeal that the applicable regulations do not require him to file a new Form I-751 petition, and that the Immigration Judge should have reviewed and. adjudicated the joint petition that had been denied by the United States Immigration and Citizenship Service ("USCIS") on December 21, 2009 (which was in the record, Exh. 3), 1 rather than finding that he had abandoned the application because he did not file a new application. As the respondent points out, the applicable regulations provide for "review" in removal proceedings of joint petition under section 216( c )( 1) of the Act, not original jurisdiction over such petitions. See 8 C.F.R § 1216.4(d)(2). Thus, we agree that the Immigration Judge, rather than setting a deadline for a new petition to be filed, should have allowed for the submission of new evidence in support of the petition and considered the evidence that was submitted already in conjunction with the "Motion to Reopen'' filed in July 2013.2 See, e.g., Matter of He"era de/ Orden, 25 I&N Dec. 589 (BIA 2011) (providing that, in reviewing the USCIS decision regarding a 216 petition to waive the joint filing requirement, an Immigration Judge should allow the alien to introduce additional evidence in support of the petition).

1 Notice of the denial was mailed to the respondent on January 7, 2010 (Exh. 3).

2 We also point out there is some indication by both the respondent and his wife that he timely requested reopening of the January 7, 2010, abandonment determination (Motion, tabs F & G). Another option on remand, therefore, is to consider whether administrative closure or continuance of this matter is warranted to allow for adjudication of that reopening request. See generally Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009).

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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)

AOS9 435 050

ln view of this determination, we conclude that an abandonment finding was not appropriate in this case, even though the respondent indicated an intent to file a joint petition but did not meet the deadline for filing a petition with the Immigration Court. 3 Rather, the joint petition in the record should have been reviewed after opportunity was provided to the respondent to submit additional evidence in support of that petition.

Based on the foregoing, we will sustain the appeal and remand for further consideration of the I-751 joint petition, and we need not reach the question of whether good cause was shown for a continuance. The following order is entered.

ORDER: The appeal is sustained and the record is remanded to the Immigration Court for further proceedings consistent with this decision, and for the entry of a new decision.

FOR THE BOARD

3 We also point out that an abandonment finding regarding voluntary departure, based on the failure to file an application for another form of relief, would not ordinarily be appropriate without providing the respondent an opportunity for a voluntary departure hearing, since there is no separate application for voluntary departure.

2

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Cite as: Brett Richard Godke, A059 435 050 (BIA May 16, 2014)

....

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

U.S. IMMIGRATION COURT DALLAS, TEXAS

IN THE MATTER OF:

BRETT RICHARD GODKE

[X] RESPONDENT [ ] APPLICANT

CASE NO. A 59 435 050

ORDER OF THE COURT

IN [ ] DEPORTATION [ ] EXCLUSION [X] REMOVAL PROCEEDINGS

ON BEHALF OF THE RESPONDENT: BRETT RICHARD GODKE 5409 NAAMAN FOREST BLVD., APT. 704 GARLAND, TEXAS 75044

ON BEHALF OF THE DHS: PAUL B. HUNKER III, ESQ. CHIEF COUNSEL 125 E. JOHN CARPENTER FREEWAY SUITE 500 IRVING, TEXAS 75062

ORDER OF THE COURT

A review of the record of proceedings indicates that respondent failed to file his I-751 petition and the filing fee receipts on or before August 3, 2012. On April 5, 2012, the Court ordered respondent to submit his I-751 petition and the filing fee receipt on or before August 3, 2012. The Court also advised the respondent and his prior counsel of the consequences if he (the respondent) failed to timely file his I-751 petition and the filing fee receipts with the Court. See 8 C.F.R. § 1003.3 l(c). Pursuant to 8 C.F.R. § 1003.3 l(c), the Court finds that respondent has waived his right to file the 1-751 petition. The Court also finds that the respondent has abandoned any relief from removal, including voluntary departure, since he failed to timely submit his I-751 petition and the filing fee receipt.

Accordingly, the following order shall be entered:

ORDER

IT IS HEREBY ORDERED that respondent's I-751 petition is hereby PRETERMITTED and DENIED.

IT IS FURTHERED ORDERED that respondent shall be removed from the United

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States to India on the charge contained in the Notice to Appear.

Dated this 13th Day of August 2012

cc: District Counsel Counsel for Respondent/ Applicant

_ Respondent/ Applicant

Mailed out: 'I- ;;J.0-1;?

Deitrich H. Sims U.S. Immigration Judge Dallas, Texas

By: _ ...... J� _______ nr> _____ _

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