ernest antwi asamoah, a087 310 643 (bia sept. 11, 2015)

8/20/2019 Ernest Antwi Asamoah, A087 310 643 (BIA Sept. 11, 2015)

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lziokhai, Obadan Esq.

U.S Department of Justice

Executive Ofce r Imigraon Reew

Board of Immigraton ApealsOce o he Ck

5 J 07 Leesburg Pik, Ste 000Fal Chc Vn 2041

Law Oice of Obdan lziokhi390 Main Stret Suite 805Worcster MA 01608

DHS/ICE Oice of Chief Counsl - BOP.O Box 8728Boston, MA 02114

Name: ASAMOAH ERNEST ATWI A 08-310-643

Date of this notic 9/11/2015

nclosed s a copy o e Boad's decso nd orde n he above-eenced case.

close

Panel Membrs:

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Scerely,

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Usta :

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

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Cite as E est A t i Asa oah A087 310 643 (BIA Sept 11 2015)


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>U.S Executve Oce r Imiton Revew

Decso of the Board of Imiaio Appal

Fa Chc Vga 20530

File: A087 310 643 Boston, MA Date

In re: ST ANTWI ASO a.k.a. Eest Asamo Antwa.k.a. Eest AsamohAnwi ak.a est Asoahai

IN MOVAL PROCEDINGS

PEAL

ON BEHALF OF SPONDNT: Obad Iziokh, Esuire

PPLICATION: Adjustment of sts

SEP 1 205

The respondent, a nive d itin of Ghaa, appeals om an Immiation Judges decisiondated August 13, 2013, denyng is aplicaton r adjustment of sts under secon 245(a) of e Imion d Nionali At, 8 U.S.C. § 1255(a). The appeal will be sustned d therecord remded r her proceedigs.

We review e dings of ct, including deteinations of credibilit, made by theIigrion Judge nder a "clely eoneous sdd. 8 C.F.R. § 1003.(d)(3)(i) We reviewall other issues, including ether or not te pies have met e relevant burden of proo, dissues of disreon, nder a de novo stdd. 8 C.FR. § 100.(d)()(ii)

The respondent has approved visa petition. e migration Judge nd, however, at

he respondent iled to meet hs ben to establish eligibility r adustment of sts udersection 245 of the At. On his adjusent application (Fo I-485), e respondent indicated that he had never been ested whereas he was rested and ped glt to drivig leioxiated on Je 11, 009 (Exhs. 6 nd 7) The respondent swore to e ness of e Fo I485 (r. at 4344).

The igration Judge noted hat the respondent is required to sis e applicableeligibility requirements, and one of those requiremens is that he submit applicon th isaccurate d complete he Imon Judge then nd at he appliion w neieraccurate nor complete, as it did not reect he aest. The Immiion Judge, therere, und

the respondent iled to demonsate his eligbility r adjusent (I.J. at 5-6). While acate

d omplete application r relief is of praont impornce, he omission here does not make hm ineliible r relie1

There is no eor in e Iration udes nding that the respondent intentionaly oted his drving while intoxcated oense om his application. The respondent's se sement,

1 It does not appe tat te Depment of Homeld Securi (S) ed at respondentwas ineligible (Tr. at 4647). Instead, it appes hat DHS gued tat he mgrion Judeshould consider s issue in e exercise of disreton.

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Cite as: Ernest Antwi Asamoah, A087 310 643 (BIA Sept. 11, 2015)


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A087 310 643

wever is properly csdered i te exerse of dscretion rer as outit b t spplicatin. s sitatn s anloous t Maer of Intri-Ros, 25 &N Dc 264 (BIA200) were e ed tht ire t e sppoin dcments was not adequate reson t

cnlude tt e appiton was bdned Te lsity f e respondent's applatin d issemets one te eors, lke the ese tsel, e sict tors n exeris ofdiscreton r e Immigro Jude to consder However tese cirmstces d nt redere respondent storily nelble

We wi remd te reord r te Immigrton Jude t osider rspondnts adjusent fstas applici n the exerise of discretion Nthn n remd s inended to indiate a pul resut readin n e exercise f dscreton Acrdnly e lwn rder wll beentered

OER: The record s remanded r er proeeds d e entry of a new decson

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Cite as: Ernest Antwi Asamoah A087 310 643 (BIA Sept 11 2015)


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NITED SATES DEPARET OF JUSTCEEXECUTIVE OFCE OR IGRATIO REVIEW

NTED SATES MMGRAON COURBOSO,ASSACHSETTS

e: A087-310643

the Matter of

August 13 2013

ERNEST ANTW ASAMOAH))

))

REMOVAL PROCEEDGS

RESPONET

CHARGES Sectn 237(a)( )() of the Imgrtn ad tnat Act.

APPCATIONS Adjustent o stts

O BEHALF OF RESPONET OBADA ZOKAHA

ON BEA OF H ENIER CAY

ORA ECISO OF TE MMIGRATON JUDE

Te resndent n these proceedngs is a dlt, ae natve ad ctzen

o Gan The resndent ws placed nt eovl prceedgs troug te ssunce

of a tce to Apear dted Aprl 22 2009 See Exbt 1 t dcument s a

know a orm -862. Te resondet subed wtten edgs trug cunsel

See Exhibt 2. In hose wren pleadngs, e espoden adm aegans 1 rug 4

and ccedes the one crge nde Sectn 237(a)(1)(8) f the Act e espodent

des desgnte Gana as te contry r reoval prposes d seek only dustet

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of ss s for of relief

Bsed pon hose wrien pledigs Exhbi 2 his Cou does fid h

remoably hs been esabished by eidence h is cler ad coicng Ths Cor

does designae Gha s he couy for remoal prposes

aly,he responde did proide -30 peio fr

lien rele packge Exib 3 for idenifico However e respoden hs no

prceeded o djs his sus bsed upo -30 1 b nsed sees o djus hs

sus bsed upo n pproed 360 sef-peo based upo he subsecion pr 2

of he -360 1 self-peiong spouse of absive U.S cize or laul perme residen

The Deprtmen of Homelad Secry agrees e respodes -30 s been

approed The respoden submed a djsmen of sus pplicon o his Cou

d he documens ached hereo Exhbi 6 This Cou hs codced ful

hearig o he respondes adsmen applicaion d his Co's decison follows

below.

ANALYSS AD DECISIO

The responde hs filed his pplcaio or djsme wh his Cor o

Jue 6 203. See Exib 6 Therefore he RAL ID Ac of 2005 pples o e

respode's pplicaion for adjse of saus s he REAL D Ac is eecie for

pplcaios filed o or er My 1 1 2005 The respoden,n pplyig for reief from

reovl s he brden o esablish he ssfes he ppcble eligibiliy

reuirees d wi respec o y form of relef h is grned i he exercse of

discreon,h he meris favorble exercse of dscreon. [A Secio 240(c)(4][8

U.SC 9a In sustaning the respondent's buen, the espondent must cmply

wih he ppicble requiremens o subi ioraio or documeaio i spport of

he appicas pplicion for relief or proecion as provided by w or regulio or i

A07- 31 0- 43 2 Augus 1 3 203


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e instructos r e licao rm In evtg the esimoy o e resoent

e Court will deerine wheer or not the testiony s creible, is erssve

rees o secc fcs sucent o eosrate a e resondet s ssed is

burden of oo n etemnig weter the resoden has e suc brden the

migation Jdge sal weigh e creible esmoy long wi oer evience o

recor Were te mgrion udge deeres e alicant sould rovde

evience wich corroborates oewise crebe esimoy, such evence ust be

roved uless the acant demoses a he alicnt does not ave e

evdece nd cao resoably obain te evdence ! subsecon(b}

these roceengs he resonden subited for 85 acaon

wch begins o ge of Exhbi 6. h alicaon s sx ages ong O he sxth

ae, e resodents Lppcant's saeme s coaned in a ve er te Cour

laced the resoen under oth in ese rceedngs te Co irece e

resode o is 485 licaio we over e 5 o lctio w the

resonde. e resondent tesifie uer oa tht e c re uersnd

Engis, ta e as rea nd understoo eac every question nd nstructon on

s -485 for, s wel s s answe o ec questio on hs for The Co swore

e resonden gi to tis iion e resonent certied uer enaly of

perjury uer e ws o e Une Stes of merca he iformon roved i

ths lcaion is all e and corec

t ha ont, e Derment o Home Securiy indicae ht tey had

onduce baground checks elae to e resondens applcon se orh in Exi

7 a eee at te esoent a ee enee by e e Stae

olice i Somers, New Yor. on or bo Mrc 8 2009. Pge 2 of xhib 7 idicaes

a the respoen ws rresed y e stae olce wi a crge cking nmbe of

A087- 31 0- 63 3 ugst 13 2013

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32020144J r drivng whie ntoxcated.� fst oense drvng wle ablty mpaed y

the cnsumptn o achol two cnts Te repndet was questioned uder at y

bt s counsel and te Gvernent egardg is anwe n te o 1-485 in pa 3

wc is page 3 te 1-485 appcaton Tat ueton states s lws Answer te

wg questons (i yor answe s es t any ueston, expa on a separate pece

paper Cotnuatn pages ust be suitted accordn to e gudeines prvded

n pae 2 e nsructns under wa are e eeral ing nructns?" Inrman

abut dcmetati tat ust e incuded wt u appcaton s also provded ts

ect) Answerg ye des t ecessaly ean that you e not enttled t adjust

stats r regster r peraent esidece}Tt ect the ges n say, ave y

ever r utsde the Unted States a kowing comtted ay crme o mral

turptude r dug ense o whch yu have nt been aresed The respdent

aswers :n t tat ecnd ude ( bee aested cted cared indcted

cnvcted ined mprsned or breakng viatng an aw or dnance excdng

trac viats and the espondet answers n

Durg e respnden's esny he dd adi a e as encunered

by the New Yo tate pce ater plg t the side the road wt a lat tire The

respdent tested that e slid sdewas aer s tre blew up tht no one ese wa n

vece tat n ne ese was hurt, tee were o ter vehces nvved the

accidet The respdent eleves te plice arrved ecae anoter vehcle stopped

t call the poice The repnden tested that e was gven a eld srety tet and a

reatalyzer at the cene by the state toper e repondet ndcaes that te state

troope tod hm ta te beathayzer tat was utilzed at the scene was not wokng

pper and tat te state trope eeded t take ck t the racs to use a

secd beatayzer ace The respndet tested he wa placed in andcus,

A087-30-643 4 gust 13, 2013

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ta bak to th barracs giv aoth bratayzr tst Th spoet iiats

tat he was told the raig athough th spot has b uclar xatly what

that radig was e said at o poit the radi was . wi is ot a betalyzr

radg Te radg wold bgi with a poit ad t ubers llowi tat ay

as te rspoet tstifid that was ot kept at th stat poi baras ovright

bt tat was rased a that th appeae two or tr tms i cou ar

that

Th rspot as also testifi that he wt to cot i Nw Jrsy ar

rivig a tikt a tag a wog tur ad tat is his oly rmanig cimal ror

Both te Govret ad th spondets cosl av agued to ths Co tt t

iss befor the Cout is o of disrto Tat is. that th Court shoul balac t

postv ad t gativ fatos i this cas to dtmn wethr th spodt is

dsvig tat s whtr he merts the exrise of this Cots discto Altog

this Co rees tt tat is o o t spodt's brs i tis se the

espodets first bur is that satsfs the appicab igbiity rquirts As

ths Cor st fh abov the REAL ID Act of 2005 spcilly Sctio 101 ()(2) of titl

1 o th RAL ID Act of 2005 ad Stio 240(c)(4) to t Igrato a

Natioaity Act That stio spificaly provids tht a aln pplyig for rif has

t br of proof to stablsh tat h satisfis th appicab igbiity quiets

frst,a t with rspt to ay fo of rif that is gratd i t xcise of

dsretio tat th ai rts a favorabl xrise o iscrto.

Ths Cort oes ot fi that th spot rahes his bure of

argug that he mes a favorable exercse sreton, as ths Cour fids ha he

rspot as ot satsfi th appabe gibility equrts for adjustmt of

status. Ths Cou fids tat o o tose rquirts s that th spot subit a

A87- -64 5 Agust 13 2013

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-5 appiaton o the Cour,tat tat appiaton is submtted to the Court under the

pains and penaties of perjury and tat a appation be accuate ad ompete. is

Cou finds tt the respondent's -85 appiatio is eiter aurate,or compete

And ereore he Court does o find tat the respodent has satsed the appiable

eigibly reuiremes as set oh in Setion 20c )()A )(i) ad tereore deies te

respodent's adustent o status appiaton uder the REAL D At of 005 as he has

ot met hs burde of poo

Te isuctos wiin e 45 tse diae tha f te respondent

aswers yes: o any question n par 3( )1) tat e is to expain that aswe on a

sepaate pee of paper In uestio B he respodent is spei iay asked whether

e has eve bee arrested carged,ied indited onvted, ed or imprisoned fo

breakig or violatig ay law o ordane excluding a trai vio laion. The respodent

has asweed no o this questo Ths Cour f inds ta answering no: to s

quesio,e esponden f ails to mee is bude o f proof under the REAL ID At to

satisy the appliable eligibil ity requirements for adjustment of staus is Cour fids

er lsteg to te respodets testmoy that the respoden ws f ully aware at he

ad been t least arrested or charged o f ed for breaking or violatng any aw or

ordane ex ludig a tai violation

Specifially,te respondet testiied ta he was aware that e was

eouteed b the police n New York at te side of the road,that e was given a feld

sobrety es tat e was gven a breatalyzer test at the side of e road,whih

aoding to the stae rooper statemet to te respoden was f aulty e espoden

was paced i handcufs, taken o the state poice barracs gve aoter breatalyzer

test Apparent ly at ta point te esponde was re leased and ten returned to ourt

on wo or hee osos The respodent test f ed that e was ultimately fied e

AO?- 3 0- 64 6 August 13 203

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Cour fs that the resonent s an has been wel awre tht he ws rrested and/or

chrged ador fned for drvn whe ntoxcated rst oese that is rvng under the

nfluence of ntoxcating uors Ths Cour ids tht te respondet nswere no to

ths questio after he read ths questn,understood this uestion ad uerstoo he

was answerg o to it.

The respoent has sgned this 1-485 appcaton on pge 6. The Cout

hs cofrme hs signture Te resondent sgne ths o Ar 30 20 3 severa

yers after s encounter wth the state polce i New Yor nd sever yers er the

disposto of his drunk drivg oense as set oth n Exhibt 7 Ths Cout agn went

over the fct that the resonent can rea ad understand Englsh that he hs read

nd understoo each and every question and structon o tis frm as wel as hs

aswer to each questo Te respodent aga under ot n ths cout ceed

under penlty of peruy under te aws of the United States of Amerca that the

nformaton provde n ths pp caton s true correct Ths plcaton a the

nformto provde in t is n fct not true a correct. n t o the respodet h

he aswered truthuly to the questio h he bee rreste charged,or ne or

violatng or brekg ny law o ornance in the United Sttes or outsde the Unte

Sttes that he was to prove n explanation on searte pece of paer Becuse

the respoent answered :no to ths the respoent hs not provde ay searte

exlato he respoent has not provide polce repos or docet sheets relting

to ths ofese New York

Both the respondent a the Government incorrectly jumped to whether or

not ths Court shod execse ts dscreto n s cse ht s ot te crret tte o

the law. he current stte of the w uer the REAL ID Act of 25 is that the

respondet bears the burde of rof frst to establsh tht he estblishes te ppcble

A87- 3- 63 7 Auust 3, 23

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e gibi ty requi rements r adjustmet of tat. This Court find s tat by subm iin to

ths Cor an 1-485 app lication tat as an aswer o it that is false, tat the respondent

canot satis the appli cabe eligib ty rei reets or adutent o status and this

Cour ids tat t need not dee frther ito whether or not te respondt can

dmostrate is burden tat e merits a favorabe xercise o discrtion

Had t respondent ared tat h ad a mistak in his 485 app catio

that that he did not ow that he had eer be arrestd cited charged, idicted

conicted fid, or imprisoned for brea or olatng a law that ay be a dierent

ater But n this case te respodet has ot argued that His counsel has argued

that is counsel did not know of this ose i New York But th repodet as eer

argud tat or testified to that he respodet testiied imediaty tat

reembered tis oes in ew Yor He tetfed immed iately that e was placed

ad cus He testied that e was gie a fied sobriety tst, a brathayzer at te

cne of is accident wr he says he slid sideway, ad a breathayer again at the

state poice barracs Respondt as testfed that h ap pared in cou on wo or

tre occasion ad was ined . re is o questo i ts Co's d tat te

rspodet ew that he should hae anwered yes to ths qestion ad simply dd not

The respodt as not explaid to tis Cur' satiactio wy awred o to

this questio ad becaus tis Cour swore te repodent nder oath to the contets

o tis app catio and bcause hi s anwer to tat uestion is false, th Cot caot

d that the rspondent a t his burde of proo under th REAL ID Act of satsying

h appli cabe elig ib i ity rq ireent That s the copleton of the for 85 in a

th aner

e respondent fa sely cerfed uder pnalty of perury ude r the laws o

the United States o Amerc that te ioraton tat he proided i t i -485

A087- 31 0 643 8 Agust 13, 203

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application is a true and corrct. Ths Cort inds that the respondet has not ade a

mstake i this applicaton. This Cor fnds that the respondent has falsey aswered

this questio Based po the record including respodets testioy ad Exibit 7

and this Cout fids that the respondet has not met his brde of proof nder Sectio

40(c)(4)(A)( i) of the Act ad therere this Cort will deny the respodents applicatio

or adjstment o status. As set forth above ths Court fids it unecessary to reach

whether or ot the respodet can meet his burde of proof as to whether he erits a

favorable exercise of the Cour's discretio

The respodent seeks no other for of relief in this case ad therefore

the Court will eter the folowig order

ORDERS

The respondents applicatio for adjstet of stats under Sectio 45 of

the Imigratio and Nationaity Act be ad is hereby deied;

That the respondet be ordered removed fro the Uited States to Ghana

based pon the oe charge of removability contaied in the Notice to Appear at Exhibit

1

snature

A087- 310 643

Please see the next page for electronic

MATTHEW DANGELOImigration Judge

9 Agust 13, 2013

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I gr at i on J udge TH . ANLO

dage l om on C br 25 , 20 3 a 2 : 00 PM G

A087- 1 0- 64 1 0 Ags 1 3 0

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ernest antwi asamoah, a087 310 643 (bia sept. 11, 2015)

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