imran wahid, a047 700 704 (bia july 1, 2015)

8/20/2019 Imran Wahid, A047 700 704 (BIA July 1, 2015)

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Sturman, David M.Daid M. Sturman, APC16530 Ventura Blvd., Suite 312Encino CA 91436

Name: WAHID, IMRN

U.S Department of Justice

Executve Oce r Immgrtion Revew

Board of Immigration AppealsOce of he Cerk

5107 leesburg Pike, Sute 2000Fa Chc Vgna 0530

OHS /ICE ice of Chief Counse - LS606 S lie Street 8th FloorLos Angeles, CA 90014

A 7-700-70

Date of this notice: 7/1/2015

Ecosed is a copy of he Bord's deciso nd order n the above-reenced case.

nclosue

Panel Members:uy, RogWdtd Lid S.O'Ho g

Snceel,

DC caDonna Ca·

Chief Cerk

Useream Dock

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

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Cite as: Imran Wahid, A047 700 704 (BIA July 1, 2015)


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Executive Oce r Iiion Reiew

Decision of he Boad of Iiion Appeals

Fa Cmch, Virgia 20530

File: · A047 700 70 Los geles, CA

n re: IM WAH

IN MOVAL PROCEEDINGS

APPEL

ON BEHAF OF RSPONDENT: David M. Srm, sqire

CAG:

Dae:

Noice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 US.C. 1182(a)(7)(A)(i)(I) ] Imit no vid mmigran visa or ey docent

PPLICATION: Terminon

'UL - l 2015

The respondent appeal om Imigraion Jdge's Ag 19, 2013, decision ordering hi removed o the Unied Sates. The record will be remded.

I is ndipted at he responden, a native and citizen of Pakistn, depared thenied Ses r Pisan on Febrary 11, 2008, to avoid crimal proecion in the Ste ofCalia. A e time of e respondents depre, he w a al peen residen("LP) of e nited States. Approximately 30 onhs laer, on Jly 30, 2010, the repondentived a a United Stes por of eny and so to enter he Unied States as a reg LPR.Section 10(a)(27)(A) o the Immion d Nationaiy Act, 8 U.S.C. § 110(a}(27)(A). Upondiscovering e responden's pendig crnal charges in Calia, however, the Depent ofomeld Security (DS) denied the respondent' reqes o enter he United State dinstead poled him into e coy to ce prosection.1

In August 2011, e DS led a noice to ape mmigration Cor chging he repondent wi inadissibility to he Uied Sae a an applican r adission who ls a vaid imigrant visa or oer eny docen (Exh. 1). Secon 212(a)(7)(A)(i)(I) of he Ac,8 U.S.C. § 182(a)(7)(A)(i)(. The responden denied that chge, claimed hat he is entitled to be amitted a a reg PR, d reqeted einaton of e remov proceedng. Themigrion Jdge conclded, however, ha e responden had abandoned his LPR sts, and erere se sustained e charge d ordered e repondent reoved o Pakis is imelyappeal lowed, in wich e responden dipte e Immigraion Jdge's deteinaion at heabdoned his LPR stat.

I On Juary 10, 2011, the responden was convicted of engagig in sexal intercorse with a mior who was under 16 yes of age n violaion of section 261.(d) of e Caia PenalCode, a felony r ich e was sentenced o a 2-year e of imprisonment

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· A07 700 704

As he esponden absent om the United tes r a continuos period of moe 180 ds, he is popey deemed an applicant r admission despite his LPR staus. Section101(a(13)(C)(ii) of e Act. Neveeless, an alien peviously admited lal peen residence ho possesses a valid, unexpired esident ien cd, the espondent is eniled o be

admied to e United Ses unless some inadmissibiliy gond applies. Fuhe, hee e only ound of inadmissibiliy chged in e notice to appear pertains o e respondent'saleged lack of a valid iig visa, as here, his Bod and e Unted Ses Court of Appeals the Ninth Circui have held ha e burden is on he DHS o prove by cle, nequivoc dconvncing evidence tha the esponden abdoned his LPR stus. See Mater of Huang,19 I&N Dec. 749, 754 (BIA 1988); Mater of Salazar, 17 I&N Dec. 167, 169 (BIA 1979); aterof Kane 15 I&N Dec. 258, 264 (BA 1975); Koshm v Hder, 655 F.3d 1147, 1151 (9Cir. 2011); Khodaghlian v Ashcro, 335 F3d 1003, 1006 (9 Ci. 2003); Singh v. Reno,113 F.3d 1512, 1514 (9 Cir. 1997).2 In essence, the present espondent's pio amission toLPR sus entiles im o a pesumpon of admissibiliy ch he DH must ebu.

As he espondent rges on appeal, the Immigration Judge's decision does no reect hshe paced the bden of proof on he DH to establish at he inended o abndon hs LPRsts. Insead, te mmigation Judge evidently und a the eng of e respodent'sabsence om he United es as sucient by iself to establish a prima cie case ofabdonmen, eectively shiing te burden to e respondent o come d i evidence o

e coary (T. a 26-27, 34). Tha is incoect s a mte of law.3 To ascetain ien'sinent o abdon LPR stus e Immigration Judge must exine no js te oun of ime e individal s absent om he United tates, bu also the location of his ily ties, propery hodings, job, ec. See e. ater of uan supra, at 75557; ater of ane, supra, t 262-63; Khodaghan Ashcr supra at 1007. Where, as hee, aien prevously gaedLPR ss has been absen r a elaively lengthy peiod of time, the DH cn cy is bden

only if consideron of all hese relevnt ctos establishes hat e responden "clely d "neqivocaly iled o maintan a "continuous, unntepted inention o e o eUnited es, ereby abandoning s LPR sts. hosfahm Holder supra, at 1151. Aninconclsive ecod co suppo a nding of adoen.

e cta ecord is no lly developed ith respec to mos of he cs relev to eabdoen inqiy, nor have ose cts been exmined in ligh of he propey alocaed

burden of proo. e esponden cl�ms a he alays inended o re to te Uned es

2 We do no need to decide in is case hich py es e buden of proof hee a egLPR is popely chged under a gound of inadmissibiliy oer h secon 212(a)(7)(A)(i)(I) of e Act. Accrd Maer of Rivens, 25 &N Dec. 623, 626 (BIA 2011).

3 I appeas he Iion Judge may have concluded a the respondent's stus as applict admission under section 10a)13(C)ii) of e Act s tntont to anandonment of LPR sttus. at is not corect. Aloug LPR ho as been oside eUnied States r more 180 days is propely deemed "applic admission pon re absence of moe han 180 days is not necessaily sucient to establish that a regLPR is inadmissible.

2


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· A0�7 700 70

t wa prevente ig s wen he sere ack t nuries n a c accient i Pst Te Iigatn Jge as planly skeptcal at seo enie e respdent's reqest to present te telepc testiny f s ctor n Pist ecis

wch te respnent calenges n appeal O re te DHS wil be the ben f provng at e respnet le t ntain a "cntos nintepte etin t re t te Unte States; tus the respet wll e uner n er bigatin to ce wd thevience to veriy e ne extent hs nes St were issue as pot saoet LPR stas is i ispte, e Iigrati Jge shoul nt ipse uecessits n the scpe e evence she s wilg to cnsier4 Lkewise, te Iigratin Jgesol ly csier e ateras hat ave alreay been accepte nto evence, such as te

physc's decatin er cents penng t the respets eca eent(Exh 5)

In vie f te regong we will sstai he respondets appeal re e recr to te Imatin Juge r er pceeigs. On re, te DHS shal have e bre t pve y cle, uneqvca a convncing evience tat te respnet abone is LPRstus

ORDER: e appea is sustane a the recr s ree r er proceeingscsstent t he regng pini r ey a new ecsin

4 e respnent ges at e Iigratin Juge ostile t tat her resa toallw s Pist octr t test y telephne is evience preet r bias We nnsciet evidence f peissible as n tis recr The recr reects at eIiatin Jge base her ecisi n er nersing of e applicabe aws

reguatins, her alysis the evience of recr, what se ece er pcipinn e respnents cse Mater of Exame, 8 &N Dec 303 BIA 1982) At teIgratio Juge appes t ave isalcate te en pr e have n reaso t

beieve is as ing oer t n hnest ste Fer, alg e inJuge un uch t crcze in he respnent's persal cncter al e i by hs ownaissin ee he cunt t restall prsectin r unla sexu ntercouse wh a inowe agee ta se exbed e s f "eepseated paty t at wl e r jgent possibe See Liek v. Unied Ses, 510 S 0 -6 994)dig at cges of uica i pai ct be estalishe slely by expressionsf ipatence, issatisctn, yce even ger) e respndet as nt sh that

he was ene e prcess

3

..SG a Ut...W@i_ M

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U Decso of e Bod of go Appel· Execuve Oce r Imgaton Reiew

Falls Church, Virgnia 20530

Fle: A04 00 0 - Los ngeles, CA Dae

n re: IMRA WAHID

DISSENTNG OPON Roger A Pauley, Bo Member

rJU[ -l 2015

I respeclly dssen d woul he Immigraon Judge. Coy to e majori, i iseven e Immiaio Juge applie e coec buren of proo e Immaton Juge relied on Singh Reo, 13 3 1512 (9 Cir 1997), wc places e buren of proof on e DHS by clear convincig evidence o demonsae en aboned ll penen resen su See J a 4

Roger A PauleyBo Member

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UNITED STATES DEPARTMET OF JSTCEXECUTVE OFFCE FOR MMGRATO RVEW

UNTED SAES MMGRATON COURTLOS ANGEES, CAOA

ile: A047-000

In the Mater of

August19203

IRA WAHD)))

)

REOVA PROCEDINGS

RSPONDNT

CARGS Secto 22(a)()(A )(I) o te mmigration and Naionaity Ac

APPCATIONS Admssio to he Uited States.

ON BEAF O RESPONDENT DAVD STURMAN

ON BEA O S: FREYS REDERCK

ORAL DECSO OF HE IGRATION UDGE

Respondent i tis matte was carged s an ariving aie by te issuae o a

Augus 220 Notice to Appear Te hages have been sstied by cear ad

coii eiece bot by esoet's admissions and oncessions s we s is

testmony ad appiations beoe tis Cou Resodent is a aive ad citizen of

Pakistan who red i the Uned States os reenty on or bout Juy 0 200seekig adissio s a reuring wu eranent resident fter hvng bee asent

rom he Unted Staes or a onnuous eriod i excess o 80 days e as arole

into te Uited tes aer insetion and the roe expired hever on Otobe 29

200 Resodent is theefore an imigrant not i possession o a valid uexied

¥ l $2

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mmiraio visa reer permi, border crossing card or oher valid ery docume

required by e mmigraio ad Naioaliy Ac As suc, he is presen i he Uied

Ses i violion of Secio 212(a)(7)(A )() of he Immigraio ad Nioaliy Ac

Respode esifed before is Court a some egh regardig difficuies or

problems ha e had i leving e Uied Saes afer having lived here for man years

and reurig afer a absece of approximely wo-ad-a-half years essece

respode s esified a he e e Uied Saes ad e ws injured in an accide

in Pakisa ad coud no reur for wo-ad-a-alf ers Respode has rgued a

his ccide i Pakisa ad his resuig ijuries cused him o remai ou of e nied

Saes for a exteded period of ime ad e was uble o reur o he Uied Saes

eier de o is medicl codiio Accordig o respodes esimo e e e

Uied Ses o avoid crimial prosecuio o Februar 11 2008 Respode

admied he kew ha he ad a earig on Februar 13 2008, and ha e was o sart

a rial a a ime. The rial was se o begi as saed o February 13,2008 He was

od b is aore a is bond would be caceed ad e would be pu i jail Rera face he cosequeces of he rial,e jumped aboard a plae, boug a oe-way

icke,qi is job e same day ad e Accordig o respodens esimo,is idea

o leave his coun was a he fau of is aorey, Simo Ava, because i was Simo

Ava's idea a e respode leave e Uied Saes Respoden as cceped o

resposibiiy whasoever for his decision o jump aboard a pae wi a one-w icke

ad o reur eve ogh he kew he had court dae According o respode his

Simon Ava wo was hs criminal attore gve respode he dvice o go awa d

no reurn ui e could find ou he ge of e girl ivolved in his crimial case

Accordig o e carging docmens,responde was carged wi ine cous

vioao of Caifornia Peal Code Secio 288 ad vrious secios herein See Exhibi

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2, charging douments. Appered tht resodet ws rged wth noter indivdul

wo ws chrged with some 16 counts of the sme volto, Section 288() of te

Cfr Penl Code. Secton 288() is lew d lscivious bevor. In y event,

respodent climed tht hs ttorney dvsed him to leve the Unted Sttes.

Respodet, however, never presented the ttorney, never resented ny evdence

fro the ttorney whtsoever tt te ttorey would tell someone to illeglly leve te

country we chrges re pendng. He my hve correcty nformed the client tht e

ws riskg gong to jl two dys, t wch time his bond would e eled ut

ere is no evdence oe n esponet's self-servng testmony tt hs ttorne told

him to flee te coutry, whch would be grounds to dsbr this ttorey, so it ppers in

ny evet ccording to respondent, this Simon Avl ept trying to dely te cse, but

respondet wnted to fnsh it s soo s ossible Tt testioy is drectly

cotrdicted by his ctios, owever. Respondent dd not wnt to sh te trl

becuse he new he ws fcig l tme. Insted he s stted, fled te country

Respodent testfed t prevous erig on Octoer 10 tht ter five or sx

moths, he decded he wnted to come ck nd fight te cse, but e hd cr

ccidet n Jue of 208. Respondent futer testfed tt ts So Avl told the

resondent e should go wy from here nd f you go, good luck, tt s it. He would

tel the court tht you hd left on eergency d ccordg to resodet, ts

imon Avl wnted moe tme o prove ts girls ge, se ws peso fo di nd

respondent beeved she looe older thn 6.

As stte, fte resondent d lved n Pstn r four onths or so, he hd

cr ccident on July 252008tt woud e pproxmtely fve moths er e d

been in Pst At tt time, he ws hit by cr nd required hosptlztion for egt

dys fro July 25, 2008, until August 3, 2008, lthoug wht respodent initll

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testied i a previous hearng, he ad been n the hosptal r our months

Respondent preseted records rom Pakstan that e was treated in a hospital

there Court concludes that te records do establis that respondent was treated or a

car accidet i akista ad also te records as well as respodet's testimoy

establshed that he dd ave an njury to hs ot that it was surgicaly repared, and that

e had a disk compressio r spia dsk protrusn that caused hi some pain The

recrds also relect that respondent receved treatment i the orm o physcal terapy

ad olow-up visits with hs doctor in akistan Accrdng to respondet owever he

made a miraculous recovery. He went rom being a complete ivald in a wheelchair

unable to wak i June o 200 to being completely cured a month ater able to walk

able t get on a plae and come t the United States His medcal records do ot

substantiate that the records he submitted to this Curt, ad accordng to the recrds

submtted at Exhibt 5 and it �oes relect that respodent had sme bed rest he ad

conservative treatment for a disk bulge wth spina stenosis There is nothing in ere

that mentios tat respodent was cmpetey in a wheelchair and unable to move Noris tere anytng in hs dscage certicates statig that he is uable to walk

evertheless it does appear that he eceived some pysical therapy for an extended

period o tme or an njured back

assessig wether somebody has abadoned their status here in the United

States teir lawul permaet residet status, tis Court looks to te Nit Circuits

decisio i Snh v Reno 3 F 3d 52 (9th Cir 997) as well as ther decisins n

tat deciso te it Ccut eld 1te crucal iquiry s weter Sigs exteded

trips costitute temporay vists arad" I sort te critical iuiry in assessig

whether somebdy as abandoned their ctzenship s weter it s a relatively short

period ixed by some early event or the trip wil terminate upon an occurrece o an

A04 7700704 4 August 19, 203

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een at as a reasonable possibity o occurrng witn a relaey shor perod of

tme In other words is Cou looks o e iten of the respoden when e depared

te ited States. t is clea tat respodets depatre om te ited States e ad

no netio o reurnig o s coury He quit s jo e said e et all s thigs

here n te United Sates except or ive or six suits ut tat s because e led wi is

arens and e did not need to ge rd o aything ad eeryhing belonged to e

paents or wa ings e migt hae ad could easily remai te arets ome

ere Respondent is a gitive from justice or was at ta time. e as snce bee ried

ad conicted As sch his Cour concludes at respode did ot make a

temporary vis abroad wit a ied me o returnor did is trip hae a schedued

terminaio by a xed eet bt sometig nreasoabe happened ta e coud ot

retur This was a person wo ed the coury wi a crimia tria pendig in wo days

ad e was told e would be ailed e is a fugitie rom jusce or was at ta tme.

See Anonio-Marinez INS37 F.3d 089 (9 Cir 2002) discssng a ugitie

docrie in e mmgraio conext Responden accets no responsibi ity wasoever

or eeig the nited Sates He clams was al is attoeys a t ad e was jst

aking is advice But respondent cannot i good ait rely on tha deense e kew

e ad a ria e kew tat criia carges were pending, and he knew a he was

probably going o see jai time and raer a ace e carges e took o. s

atorney caot e aued or gvig him wa appears to ae been correc legal

advice tat e wold see time ai Moeove respodets expaatio eoe tisCort tat te attoey did ot kow te irl's correct age and needed te to earn the

correct age o e gr n e crminal case acks credbiity. e canot be concted

less tey kow te girl's age Ad te cmial cort cetaily wo d ot coict

someody wout proper eidece. I te g s age could ot be determied tat was

A04 7700704 5 Augst 192013

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all the more reaso to stay ere ad deed Istead respondet took o. He did give

up what he had i ths coutry that is his job at the car retal agecy where he had

worke or three years he took hs clothes, he wet to Pakista where e had famiy to

live so he did ot eed to take much ad boght a oe-way ticket As stated there s

no ixed time or his return withn a short timerame ad there is otig to dcate that

he ever iteded to come back. Respodet argues that he thought ater he had bee

tere or oh four or ive moths, he might as we come back but e did ot in fact do

so e nstead did sfer ts car accidet This Court oes ot fd however i te

alterative that ths car accdet preveted him rom returing to the United States for

two-and-a-half years. There is nothig i these medical docmets that suggest that

respondet was competely icapacitated ad i a wheelcair. The documets do say

that respondent sho have compete bed rest or six mots It s ot clear however,

what tat meas if that just means he is not spposed to be workig Responet said

he coud wak urg these physical therapy sessos eve with hs ijuries, ad he was

i a wheelchair Should respodet decide to retur to the Uited States he could geti that wheelchair and come home with lttle or o dific ty A Dr af also put his

medcal records tha respondet stopped receiving treatmets rom him on Jaary 25

2010, yet respondent still remaed i akistan for another sx moths, at whic time

respoet sad he came back to ght his case It is ot clear why respodet came

back except maybe he ecie acng the case here was better than livig in Pakista

or perhaps becase is parets had to cough up addtiona bai moey that might be

ost i he did not come back.

Moreover, respodet was ultimately covicte of a violatio of Califoria Pea

Code 261.5(d) See Exhbit 2 That is he was ultimately convicte or sex wth a mior

uder 6 years o age, even though he testiied before this Cour hs attorney utmatey

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detene tat the grl was 1 7 years od I aeas hat e esndent as ot bee

entely cadd bere this Couteter o he egree o s dsablty or to othe actors

suc as ts whoe age busness of ts g l and s atrney telng to un and de

n ahe counry Pursuant to Secton 261 5 unawu sexua ntecourse wt a

erson unde 1 8 years o age, at Sect () es "ay eso 21 yeas age

lder wo egages an ac of unlawul sexual ntercourse wth a nor wo s ue 1 6

yeas o age s guty o ete a msdemeao o a felony ad sal be unshed by

sonet n a couty ja not exceeg e yea et cetea st ee tug

resondent came tat s attoney was able o fnd out at e gr was 1 7 yeas od

hat s beed by te evece n te ecod So hs Cout ges ltte o o cedence to

eset's ca tat e tk at s atteys ace because te attey eeed

oe e to d u e age o te g Ths Court does incude as sated howeve

tat te atteys adce tat resdet was gog t al was accuate ad s

esondent ed fo tat eason Te resondent also ad o nteton of retung to

e Unted Sates at any easnabe tme n te uue an s st was not temoray to

Pakstan s not clear wen resoet woud have etured bu or hs accdent and

as stated even thoug e ad ts accen he sll could hae retuned to te Uned

Staes eae but d t do s There was nng n ths ecod o n cate that e

coud not walk a tat e set al s te n te weecai as e tested s

Cut concues tat e has exaggeated hs case For exampe at Exbt , page 1 2

D Ha puts n s atent stoy rert on Jue 25 201 0 tat e atent therespondent as low back ace iroe and able o contnue daly acv tes A lot f

eole ae ow backacebu that s not an excuse eanng outsde the Uned

States o w-andaa years.

n any evet consdered cuulatvey al he eence leads o te concluson

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tat esodet as abandoned s lawu eraet es det status and is aicato

to eter te Uted States wil be deed

Accordingly the folowig oders sall enter.

The carges i te Augst 6, 2011 Notice to Appear are sustaied ad

resodet s ot aditted to the United States as a lawfl eraet resdent

signatue

A047-700704

.:

Please see the next page for electroic

CHRSIE A THERmigaton Judge

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/ I s l /

Imigraton Judge CHRISTINE A. BTHER

bthec on Octobe 2 4 , 20 13 at 1 : 1 5 PM GT

A047-0070 9

�r.J

Augst 1 9, 20 3

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imran wahid, a047 700 704 (bia july 1, 2015)

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