robinson w. bordamonte, a035 979 158 (bia oct. 8, 2014)

8/10/2019 Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)

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t Mke Gusoy EsqueGuso Law Fm P.C1624 Voohes AvenueBooy NY 1235

US

Executive Ofce r Iigration Revew

f Immii Q f Clk

507 leesburg Pik, Sue 2000F Ch Vg 20530

S/CE Oce o Ce Cousel NEPO Box 898Newa NJ 0710

Name BORDAMONE ROBNSON A 035-97958

Date o ts otice 10/8/2014

nclosed s a copy o he Board' decison and orer in te above-rereced cse.

ncosure

Gree, Ane Pauley RogeWendand Linda

Scerey,

Dc ctDonna Car

e lerk

Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)


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BORDAMONTE, ROBINSON WA035-979158CEESSEX COUNY JAIL35 DOEMS AVENENEWARK NJ 0705

Execve Oce mgaton Reve

fmmii lOc f h Clk

5 J 7 Leesbrg Pik Ste 2 C g 25

HSCE Oce of Chie Counsel NEWP Box 1898Newark N 00

Name: BORDAONE OBNSON W A 035-97958

Date of i ice 1082014

ncosed a co of te Board ecson in te aboveeeced cae T co s engpovded o o as a cotes Yr atoe or eeseatve a been erved wt tecson prsat o 8 FR 1292(a) f te aaced deo oer ta o beremove om te Unted States o afs a mmgrato Jge deco oderng a obe eove eto reve of te attace deco m e led wt ad ecevedy te appoprate co of apeals wiin 30 das of e date o te ecso

nclose

P MGee Ane

Pae RogeWendla nda

Scerely

Donna Caef erk

: PgfJ:!.



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.i U.S. Dp f JExecutive Oe Immgration Revew

Deisio of te Bod of Immtio Appels

Fs Chch, Virg 0530

File: A035 979 158Newk, NJ Date:OCT -82014

I re ROBINSON W BOAMONTE

IN REMOVAL PROCEEDING

APEAL

ON BEHA OF ESPONDENT: Umit Mike Guso, Esqure

CHGE

otice Sec. 237(a)2)(A)(iii), &N Act [8 U..C. 1227(a)(2)A)(iii)] Convicted of aggravaed lony (as dened i section 101(a)(43)(G))

Sec. 237(a)(2)A)(iii), &N Act 8 ..C. 1227(a)2)A)iii)] Convicted of aggravated felony (as dened in section 10a)(43))

Sec. 237(a)2)(A)(iii), &N Act [8 U.S.C. 1227a)2)(A)(i) Convicted of agavaed lony as deed i secon 101(a)(43)())(withdrawn)

Sec. 237(a)2)A)ii), & Act [8 .S.C. 1227(a)(2)(A)(ii) Convicted of wo or more cimes voving moal tutue

Lodged Sec. 237a)(2)A)iii), &N Ac 8 U.S.C. 1227(a)(2)A)(iii)] Convicted o aggravaed felon (as dened i section 0{a)43)))

APLICATION Teinaton of poceedings

he responden appeals the Imigration Judge's May 1, 2014, decision denyng hs moionto erminate his pceedings ased o his cl that he deved United States citizenship yvire of hs oer's aaizaon under er section 32a)3) of e Iation dNaioni Act, 8 .C. 1432(a)(3) The appeal wi e sused, d the recod wil eremanded o the Iigraton Jdge r her proceedgs cosistent wth this opon d rentry of a new decision.

I her decision, e Iiation Judge deed he respondent's moton to teinate hisproceedigs ased on his cm of dervative citizensi nder er ecton 32a)3) o teAc I.J. at 6-3). Specicaly, reying on he ird Crcuit's decsion in Mr A' e432 F.3d 226 (3d Cr. 200), the migration Judge apparently cocluded hat ecause the

1 Foer section 32(a)(3) of te Act provides, in peinent p, at a child devesnited Staes citienship toug ]he natalzation of te pet having lel us of thechid wen tere as been a lel eri of the pens ..." (epases added).



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03 979 8

respondent coud not provide a docuent issued by a cou tering te marial reationp of ispens, e could no estabish ey had been legay sepated at the ime his moter naturalized(Tr at 13) Te mmigration Judge does not appea to ave er considered e meits of theresponden's cam

On appeal, te respondent ges that e mmigration Jdge eed in requiing a co-issueddocument of egal separation in order r im to mee s burden of proof under rmer section32(a)(3) of te c n tis regad, e responden cites hilippne law whic, he caims, doesnot require a couple to obn legal documentation of inma sepaaon bt lows r aspouse to legaly remay aer aving been sepated r 4 consecive yeas See RespondentsBrief at 79 Te respondent caims that his pents were egay sepated when s moernaturalized becase she w permitted to legally rem under ilippine aw, d a e wasin her soe custody in te United States at tat time

Te isse in this case is not wheter e respondent has a eg documen issued by a co,as the mmiaon Judge appently concuded Raer, the issue is wheter thee was a aaction by a competent goveent auori aleng e arital eaionship, teebyestabising wit ceranty tat a legal separation occued See Morgan ty Gen. sup at234 ee lo Leslie ' Gen 208 F. ppx 08, 3 (3d Cir 2006) (unpublished) deed,in oran e Tird Circuit noed ta a mal acon" need no necessriy be a udicialdecree, citng e c tha ere is noing in te guage of te sttute at reques that a courmus act r a legal sepation to exist Id at 234 n4 us, e Thid Crcuit appes to beconceed not wit y picul legal document bt wt e recoition by a sate autority

ta the mrial relationshp was altered suc that it could be deeined wth soe centy thata legal sepaation" occued See id; ee aso er ofH supra.

Here, the respondent claims that neither New Jersey nor the Phiippines required a decree ofrma sepation at e time is paents sepated Thus, e conends, he cnot be uted rnot having a jdicia decree to present to e co See Leslie t Gen, supa (nding noult were te pents did no obtn a judici decree were e relevant jsdiction did ot

provide r one) However, the record does not ndicae tat the mmiation Judge consideredany of e esponden's aguments s to te isse of weter tere was a ega sepaaion" a e

e substnce of the mmiation Jdge's decision that is at issue is und primay in tetranscript I er written decision, te mmigration Judge concluded witou explanation a therespondent provided no evidence that tere was a legal separation (J at 3-4)

n this regard, we note tat e nguage used by te Bod in Mter ofH 3 &N Dec 742(BA 949), could be read to suggest sppo r e proposiion tat a legal sepation" rersonly to a "imited or bsoute ivorce otaie rug uci roceedings" See i at 3-44However, tte H- stds r the proposition tat a sepation mst incude stateivolvement, eg, a cou order or some oer recoition om the sate, in order to aliunder re sectio 32(a)(3) of the Act. See e, Briset v. hcro, 363 F3d 130, 3 dn.4 (2d Cir 200).

2Cite as: Robinson W. Bordamonte, A035 979 158 (BIA Oct. 8, 2014)


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'

A035 7 58

me of h mothe' aizatio d it appe that he itead elied olely o hi ack o ao-ied ocume a 3

We cocue ha he eco oe o icate tat he Imgao udge oely aped

the h Cicuit' deciion i Mano he eone cae whe e appaenty eqehm o peen a co-ed docet at 3 See 8 CR 003d(3i 204 (denv eew Fe he cotet of ei law i a eto of ct and we geeal come nding of ct o ae See Maer - 25 I& ec 46, 505 n BIA 20ig Mater nnan 4 &N ec 502, 503 (BIA 73; 8 CFR 0033ivTheee, we d hat a emd i wated the Iigatio udge o conide heeponde gme egdig h claim ude me ectio 32a3 o e A Shothe Imiaio dge deteie a he epodet h met hi ude of oof hi cam oeaie ciizenip e poeeing hol be einae

Accodigly the apeal wl be taie, d he ecod wl e eme o eImiaio ge he poceeg coitet with i opinio and ey of a newdeciio

OER e appeal i taed, the ecod i eed o e Imigao dge he poeedig coie w i oio an ey of a new decio

3



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,'

UNITE STES EPRMET O STICEEXECUTIVE OICE OR IMMIGRTION REVIEW

UNITED STATES MMGRATIO COUR

NEWRK, NEW JERSEY

Fle 035-7-15

In the Mae of

Ma 1 2014

ROBINSO W BORMONTE

RESPOENT

)))

)

REMOVAL PROCEENGS

CHARGES Section 237(a)(2){A)() mmgrao and ationalty c -aggavated felon; Secton 237(a){2)(){i) Immgaton adatonalty Act -- aggavated felo Section 237(a)(2)()(i)Immgtio and Natona ct two cimes nvolving oaluptude; Secton 37(a)(2)(A)(ii) Immgaton and Natioal Act - aggavated felon

APPLICTIONS Termnatio

ON BEHL O RESPONDENT ETICIA ZUNIG832 Clion AveueClin New Jerse 07013

ON BEHL O HS SETH RUGERsssant Cef Coselepame of Homeland SecuyNewak ew Jerse

OA CSO O IMMIAI JUG

The responde is a 8-yeaold male ative of the Phippes who was

admied to te ed States at Achorage Alaska o ugust 28 1976 as a legal


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peanent esdet On Janua 6 2011 he was covcted in the ted States stict

Co istct of New Jese f he oense of conspac to tanspo stolen secrtes

in violaton of 1 S Code Secton 371 and cospac to eceive falsel ade

ntestate secutes n volato of 1 US Code Secton 371 On Janua 6, 2011 he

was sentenced o 33 onths in Fedeal Pson fo these oenses On Apl 23, 2013

he was convicted in the New Jese Supeo Co, Sssex Cont, f cospiac in

violation of New Jese Statute 2C5-2 and the b decepton in volaton of New Jese

Statte 2C20 O Apil 23 2013, he was setenced to fou eas n State Pison fo

this oense hese cimes did not aise ot of a sngle scheme of cnal mscondct

The espondent deed factal allegaton 1 on the Notce to Appea

(Exhbit 1 bt conceded that the is a native of the Phlippines as alleged n factal

allegaton 2 although he deed that he is a ctizen of the Philippnes as alleged in

factal allegaton 2. He adtted factal allegations 3 thogh as contaned on the

Notce to Appea, bt dened factal allegatio 61 as contained on Fom 261 dated

Apil 1 201 (Exhibt 1A espondent deed the chages contaned on the Notice to

Appea whch wee that he s emovable unde Secton 237(a(2(A(ii of the

mgation ad Nationalit Act (Act in that ae admisson he was convcted of an

aggavated felon as dened in Section 101(a(3(G of the Act, Section

237(a(2(A(iii of the Act that ae adssio he was convcted of an aggavated

felon as defed i Secto 101 (a(3( of the Act Secton 237(a(2(A(i n that

ae admsson he was convicted of o cimes nvolving moal tupitde that dd not

aise ot of a singe scheme of mnal misconduct and as contaned on the Fom 1-

26, at e s eovable nder Secton 237(a(2(A(ii of the Act i that ae

admsson he was convcted of a aggavaed felo as defined in Section

101(a(3(M( of he Act

A035979-15 2 a 1 201


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Becase the espondent was bon n the Pippies, he s pesmed to be

an alen ad beas the bden of establishng hs clam to United States citzeshp b a

pepondeance of cedbe evidence Matte of Tij iaa-Vlla a 13 &N Dec 327 (BIA

1969 The hd tzensip Act o 2000 (A does not app because the

espondet was ove 1 befoe eba 27 2001 the eectve date of the CC

Mae of Rodgu z-T do, 23 &N Dec 153 (BIA 2001) Teefoe fome Secton

321(a o the Act appies to ths case ome Secto 321(a poves tat a egitmate

child bon outsde the Unted States o alen paents becomes a ctzen of the Unted

States pon te natualizaton of the paet having legal cstod of the chld when tee

as been a lega sepaato of te paents ad if suc natazation takes place when

te chid is unde 1 ad the chld s esdng in the United States pusat to a lawfu

admisson fo peaent esidence at the tme of the natalization of the paent

oe Secto 321 (a of te Act fuhe povdes that a egt mate chd bo otsde the

United States citizen of aen paents becomes a citize of the Unted States upo te

natalzaton of both paets such natazation occus while the chld is de 1

and te chld s esidng in te Uited States puant to a lawfl admisson fo

pemanet esdece at the te of te natuazato of the applcabe paet o

paents

I ts case, as oted above espondent was bo ovembe 15, 1965

He was admied as a lawfu pemanent esdent o Agust 2 1976 theefoe he was

aded as a lawfu pemanent esdet at the age of 10 The espondents mote

natualzed on Octobe 6, 197 and is fate natalzed on Ma 2 196 Teefoe,

h hs mo natuazed wle he was unde 1, e was ove 1 whe hs fathe

natuazed and the espondet theefe dd not deve ctzenshp based o the

natuazaton of his paets We have o evdence in the ecod tat thee was a legal

A035-97915 3 Ma 1 2014


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sepaaton of the paents such that the natuazaton of only hs mothe would llow hm

to deve ctzenshp though he natualzaton Theefoe, based on the evdence

befoe the out the espondent as failed to show by a pepondeance of cedble

evdence that e deived ctzeshp tough the natuaization of s mote actal

alegation 1 on te Noce to ppea is sstaed

The epaent of Homeand Secuity has the bden of poof b clea

and convincng evdence to show espondent is eovable as chaged n alen s

emovabe unde Secton 237(a)(2)()() of the ct if ae adission, he hs been

convced of an aggavated felony as defned in Secton 10(a)(43)(G) of te ct a law

elatng to a te oense (cludng eceipt of stoen popey) o bugla oense f

whch the te of pisonent of at east one yea was mposed In ths case the

espondent aditted that e was convcted on pl 23, 2013 of conspacy and the by

decepton in voaton of New Jesey Stattes 252 and 220-4 The Co

concldes based on the atonale descibed n the case of Nug nt v shcof 367 F 3d

62 (3d i 2004), that the cme of te by decepton n volation of New Jesey

Statute 220 s a the oense wthn te eanng of Secton 101()(43)(G) of the

ct Specfcally, the cme of te by decepton dscssed by the hd Cct in

Nug nt

s dentca to the New Jese Statute nde whch the espondent s convcted

lthough Ng nt v shco ws oveuled on the theoy of a hybd oense" by

lcoholSaf v SCtz nship

and Immigton Seces 734 3d 2007 (3d

2013), the out consdes te easonng and olding of the Nug nt cou egadng te

chaacte of a factaly denical Pennsvana Statute to be dspositve of the ssue of

whee the esponents covctio by the by decepto eets te defnton of a the

oense nde Section 10(a)(43)(G) of the ct as the espondent admitted he was

convcted and sentenced to fo yeas n pson fo that oense Theee te

035-75 4 Ma 1 2014


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H als adtd ha s ss dd ars u a sn schm cria

scduc

ird Crc as add h Bards dii a cr vv

mral riud.Paa v. Arney Geera 47 F3d 408 43 (3rd Cr 2005, cii

Knapik

v. Ashcr 34 F3d 84 89 (3rd Cir 2004 rm ra urud"

ray rrs cnduc which is ry bas vil r dravd ad cra

h accd rus mray ad dus wd b rss r h duis wd

scty raPaa

47 F 3d 43; Mar Olqui, 23 l& Dc. 896 (BA

2006 Whr a acular cr nvolvs mra ud is drd by

sau diii by a rspds scic cdc Paka 47 F.3d 411

ihr sriusss h cria s r h svry h sc isd

is draiv whhr a cr invvs ra urd i s h scc satu

ndr wich h cvici ccrs ha s crll. Mar Serna 20 & Dc 579

(BA 992. Cos ray assss whr ac s accad by a vcus

v r a crrup md n rdr drn h xsnc ora uritd. S

Paa 47 F3d 413 c Mar Fran, 20 & Dc 867 868 (B IA 994 h

hrd Circui Cu Aals rsutvy alis carca arach l a

h lmns h saury ns discrn h as cupabl cnduc hyicaly

cssa susa h cnvic Jauis v Atrey Geera, 582 F3d 462, 4

(3rd Cir 2009

Cu ccluds at cr cnsiracy ras sln

scuris i viain f US Cod Scn 371 is a cr ivvn ra urud

ad uhr cncuds a cspiracy rciv alsly mad irsa scurits i

vai 18 S Cd 37 is a cr vv mra urpid Fur C

cncds s cspracy cmi by dc s a crim invlvi

A0359958 6 May , 04


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mral tupitd As thse cies di t aris ut a sn sche r crial

iscduct (i thr wds, the cri f cspiacy t cmmit the by cpt di t

ars ut a sigl sche cria iscuct with the crmes cspiracy t

trasp se scrs and csprac t eciv alsy ade iterste scrities

th Depamet f Hmlad Scuiy has m its burde t shw b clar an

cvicig viece respt was cvcted ar dss cims ivlving

ral trpitd t ars ut f a sng sch f cimna scduct he charge

Sectin 237((((ii s sustaid

Th Depamt Hmad Secrty als chrged rst was

evab prsuat t Sect 237(a((A(i th Act i that er amissin he was

cnvict a agravted eny as did i Sci 101 ((43(( f th ct an

s that ivvs rud r deceit n which th ss t the victi r vctis xceds

$10,000 S Fm -61 t Ehiit 1A. Th Dpat Hmand Securiy ale

that th amunt ss t the vct n hs ci f cspiracy t c th b

decpt was n xcess f $1000 Bsd the evidec br the Crt th

Depament Hlad Scurty has aild t stalish by clear and cvicin

vic the amn ss exceed $10000, ad, thrre, has faile t prv by

clear and cnvicn vec th spt is mvb uner Scti

237(a((A(ii f th Act in that aer aiss h was cvcted f agravate

y as fi i Secti 11(a(3(( the Act Spcicaly, th cvictin

recd a Exhb 5 which is th vdnc r by the Depmet lan

Securt t estsh he n lss t th vc des nt sc h amut f

ss Thfr th ca s ctai the r -261 Ehit A was nt

sustd

Th ecr cssts f th Ntic t Appar (Exhbit , Fm -261 td

A35-979158 7 May , 20


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(

Ar 204 (Exibit 1A mtn t trmia rmva rcs wit attachmnts

(Exibt 2 aturalzat aicati (Exibi 3 naturaza alca (Exibt

amt Hma Scury li (Exhibt 5)

h rs snat h Piis as cu rva su

sch ac bcm cssary Rs ma acatin r r rm

rmva a bas h Cu's rul ha h has b cvic a arava

ny s t aar ib r ay ri rm rmva Trr th Cu as

chc bt rr tha h b rmv rm Unit Stas t cars susta

as iscuss av

Uubty t rs as accru many may quts ur is

i th t Sats as cm hr as a yu man a has citz arnts a

rw auth n his cunt ay bcaus th natr s cnvicti

in a aravat ly s iibl t ay r scrtary r br is

Cut whr tis Cu c ak it accun is many quts n t Unt Stats

ORE

T IS HEEBY ORERE hat rsn b rmv rm th U

Sats ursuat Sc 237(a)(2(A(ii th Act (aravat y as n n

Sct 0(a)(3(G) th Act Sc 237(a(2)(A(ii t Act (aravat y

as n n Sci (a(3(U t Ac Scti 237(a(2)(A(i th Act as

cnan h tic Aar as am

A35979-58

ARGARET R. RECHEBERGmmrat Ju

8 ay 20


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0

CETFCTE PGE

hereby cer ha he aaced proceed beore JDGE MGET

EIHEEG, he maer o

ROSO W ODMOTE

05979158

EWAK EW ERSEY

as ed as here apears ad ha hs s e ora rascrp hereo or e fe o

he Eece Oce or Imrao Reve

CASEY S SMIT (Trascrber

DEPOSTIO SEVCES c-2

GST 28 204

(Compeo Dae

robinson w. bordamonte, a035 979 158 (bia oct. 8, 2014)

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