alexander george fernandes, a097 644 447 (bia july 16, 2013)

7/28/2019 Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)

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Fogle, H G enn Jr. EsqThe Fog e Law Firm, LLC4 Broad Street N W

e Grant Bui d ng Su te 700 Atlanta GA 30303

U S D p rtm t of J i

Executive O ce r Immig a on Review

Board ofImmig at on AppealsO ce of he Clerk

5107 Leesb rg P k , Suit 2000 Fal Ch ch V g n a 2204

OHS/ICE ce of Ch ef Co nsel ATL180 Spr g Street Suite 332 Atlan a, GA 30303

Name: FERNANDES, ALEXANDER GE A 097-644 4

Date of t s notice 7/16/20 3

Enc osed is a copy of he Boa d's decision and o der in he above-re e ced case.

Enclosu e

P l b :L b w E l CMann, AnaMu lan , ugh G.

S ncerely,

D cDonna Car Ch ef Clerk

sc ckec

Cite as: Alexander George Fernandes A097 644 447 (BIA July 16 2013)


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U Depa men of Justice Execut fve O ce r Imi ation Rev ew

Dec s on othe Board o m ation Appeals

Falls Church, V rg n a 2204l

Fi e: A097 644 447 -At n a, GA

In re ALEXD R GEORG FE A D S

REMOVA P OCEED GS

APP A

Date

ON B HA F OF R SPONDENT . Glenn Fogle, Jr Esquire

ON BEHA F OF D S Wy ly JordanAssistant hief Counsel

CH RG

JUL 16 20 3

Notice Sec 237(a)( )(A)&N Ac [8 U S C 1227(a)()(A)]nadmissible at ime of entry or adjustmen of status under

section 2 2(a)(6)(C)(i), &N Ac [8 U.S 82(a)(6)( )(i) -Fraud or will l misrepresentation of ateria ct

APP ICAT ON Te m na ion

he responden , a a l pe anent residen of the nited S ates, native of Ug nda andcitizen of ndia, appea s t e mmigration Judge's decision of October 31, 20 1 which sust ned

he Depar en of Ho e and Securi y s ("DHS s ) c arge or re ovabili T e appeal will sustained

We review r c ear e ror he ndings of ct including he de ermination of credibili ymade y the m igration Judge 8 C F R 00 . (d)(3)(i) We review de novo al o her isinc uding whether he pa ies ave met eir u den of p oof and issues of discretion 8 C F R 003I( d)(3)(ii)

he responden 's status was adjusted to hat of a aw pe anent resident onJanuary 27 2005 (Exh ) e D S al eges tha he respondent rocu ed adjus men of stby aud or by wi lly misrepresen inga ma erial ct, in hat the respondent

su m t ed or had submi ed n your eha a audulent o e e m e Pa m Supe rke indicating tha you were he Produce Manager when in ct youwere never emplo ed r salary by t e business s e er was used o suppo you

140 Petition r Alien Worker as i provided you he necessar work expe encequali as a Sk led Worker (requiring at leas wo years of specia ized work exper ence) or Profession under section 203(b)(3)(A)(i) of the Act (

We do no agree with e mmigra ion Judge s conclusion ha he D S me its bu denprove hat he responden is removab e There is no dispute hat the responden wor ed in

i 0 a c . < - : .

Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)


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A097 44 447

p oduce depa me t of e aba Pa m upe ma et The to e' owne Noe Debte t ed t at t e e po de t wa e p oduce ma age 2 yea om 199 to 2000 (T40; I at 2) A ough t e e po de t wa ot pa d a a y he ece ved oom"poc et mo ey e change e ce ( at 5 T at 6) The Im atp ope y dete i ed t at oom a d boa d "cou d be co de ed a a y unde t e aw (See Matter of Hall 1 & Dec 20 ( IA 19 2) (ho d g that a a e who e gaged

a ng activ t e o beha f of hi c u ch a d w o ece ved oom boa d a d poc ee wa emp oyed w th t e co temp at o of t e Act) It ow at t e DH ' a

aga t t e e po de t doe ot uppo t t e cha ge of emovab itySee id; C F R 00 5(a)

We di ag ee wit e Immig atio Judge additio a di g at e ob eta du e t becau e it wa "bac dated ( . at 5) A oted supra, t e to e owne te ti ed

co te t y wit e mate ia co te t of the ette a d co ed t at t e e po deemp oyed a a p oduce ma age du g the co ect t me pe od T e Immig at o Judge

d and we do ot co c ude t at t e bac dati g of e et e i a y way uegove e t' co ide atio of t e e po de t' app catio ad u me t of tatu T

a guage of the atute equi e at t e a d o wi m ep e e tat o be a "mate ia factectio 212(a)(6)(C)( ) of t e Act T e United tate Cou of Appea t e E eve t C

w e e t i ca e a i e equ e that t e aud mu t be be ieved a d acted upo by tdece ved to it "di adva tageSee Ort z-Bouchet v S A ' Gen714 F d 5 1 56 (1 thC 201 ) o be mate a t e m ep e e tatio mu t a o have a " atu a te de co [be capab e of ue c g t e deci o of he dec o m g body to whicadd e ed See Uni ed tates v. Bo l Rivera,607 F d 7 6 74 42 (t Ci 2010).We do

ot co c ude that t e e po de t' me emp oye dec ion to bac date the e te doc me t t e e po de t' emp oyme t meet i a da d mate ia ty1

T e bu de to ow that t e e po de t i emovab e o the H The ev de ce c ea d co v ci gSee C F R 240 (a) see also Woodby v. INS, 5 U 276 ( 966)

a ed o t eco d the H a ot met t bu de of p oof in t e e p oceed g At e appea u a ed a d t e p oceedi g aga t t e e po de t a e te m ated2

Acco di g y t e owi g o de wi be i ued

ORDER T e appea i u a ed

T e e po de t eve a empted to co cea t at e et e wabac dated(see at 2 at 6)

2 T e Immig at o udge oted that t e e po de t te t ed t at e obtai ed i tou i t e o e pu po e of comi g to t e U ted tate to ee emp oyme t ( at 6)Howeve i

i ue i ot be e u a d we wi ot add e it

2Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)


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A097 644 447

FUR HER O ER T e Immi ation Judge's decision of October 31, 201 , is hereby vacated and espondent s emoval oceedings are terminated.

t Wl LR BOA

3

Cite as: Alexander George Fernandes, A097 644 447 (BIA July 16, 2013)


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(

U.S DEPARTMEN OF JUS ICEEXECU VE O ICE OR IMMIGRAT ON REVIEW

MMIGRATION COUR

Atlanta, Georgia

ile A 97 644 447

n the Matter of

ALEXANDER HERNANDES

Respondent

HARGE:

APP ICA IO :

A PEARANCES:

ON BEHAL O RES ONDEN :

Glenn ogle, r., Esquireogle aw Firm, C

44 Broad Street, N WSuite 00 Atlanta, Georgia 30303

))))

Date: October 3 , 0

IN REMOVA ROCEEDINGS

ON BEHAL O HE DEPAR MENO HOME AND SECURITY:

Wylly . Jordan, III, Esq ire0 Spring Street

Atlanta, Georgia 30303

ORA DECISION O THE MMIGRATION UDGE

his matter comes on for a hearing on the 3 st day of

Octo er, 20 , upon the Department's necessary obligation to

establish the factua a egations as noted in the Notice to

Appear


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o to a s hea ng, t e following ocu ents a e note

as exhibits Exhibit # is the Notice to Appea Exhibit # is

the I- 3 with its attach ents, pages note as th ough 3

Exhibit #3 is Respo e t s supplemental exhibit list in suppo t of

the hea i g to a

The pa ties t at testifie to a we e pecial Agent

Kevin Hee lei a that s an ICE agent, Depa t ent of Ho ela

ecu it ; also the Respon ent, Alexan e e na es, testifie ; a

as well, Noel Deb aganza an the testimo of the Respo e t s

b othe was p offe e , that being that his a ange e t is,

essentiall , the sa e as the Respon e t s a ange ent to wo k fo

Noel Deb aganza at the abal Palm upe a ket

In this matte , pecial Age t Kevi Hee lei test fie

that he spoke with the Respon ent p io to the Notice to Appea

being issue T e ate of issuance of the Notice to Appea is

a ch 4, 0 The ate of action, as ote b the I- 3, was

a ch 4, 0 at the location he e in Atlanta It was note that

o a ch t e 5th of 0 , the Respo ent was encounte e b the

H I ecial Age ts Hee le n an wens of the Atla ta, eo gia

Docume t an Benefit au Task o ce It was note that M

e nan es, the Respon e t in this atte , was the subject of a

ongoing investigation in his p ocu ement of an E-36 ig ation

visa b f au o willful mis ep esentation of ate ial fact

As cate , on eptembe the st, 0 0 that the H I

pecial Agent Hee le n a pecial Agent o gan encounte e the

A 9 644 44 ctobe 3 , 0


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Respon ent at USC S o fi e lo ate at 50 Pa k ake D ive,

No t east, Atlanta, 30345. Fu t e note , t e ig a ion

Atto ney Raymon Rampe sa i e a G- , as t e atto ney of

e o , in t e fi ing o an - 40 Petition o Alien Wo ke i e

on Fe nan es be a by Unive sal nvestments an Asso iates, as

well as t e 4 5 app i a ion to egiste pe manent esi en e o

a ustment of status i e by t e Respon ent

At a p io Maste Ca en a ea ing on Ap i t e 5t ,

0 in t is matte , it was note t at a legations one t oug

ou we e a mitte by t e Respon ent Respon ent enie

a egation numbe ive T is allegation states as ollows

" S . You pro cured your admi ssion, vi sa, a djustment or

ot e o umentation o bene it by f au o by will u y

misrepres ent ing a m ate rial fac t, to wit: you submitte o a

submitte on you be al , a au u ent ob ette om t e Saba

Pa m Supe ma ket in i ating t at you we e t e p o u e manage ,

w en, in a t, you we e neve emp oye o sala y by t e business.

T is ette was use to suppo t you I- 40, Petition o Alien

Wo ke , as it p ovi e you t e ne essa y wo k expe ien e to

qua i y as a ski e wo ke ( equi ing at east two yea s o

spe ia ize wo k expe ien e) o p o ession un e Se tion

03 (b) (3) (A} (i) o t e A t "

T e Respon ent enie t is al egation an a onteste

Maste ea ing was t en set fo to ay s ate, tobe 3 , 0

T e Respon ent u t e enie emovability un e Se tion

A 9 44 44 3 tobe 3 , 0


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37 (a) ( ) (A) of the mmigrat o a d Natio a ity Act (Act) , as

ame ded, i t at, at t e time of e try or adjustme t of status,

you were withi o e or more of t e c asses of a ie s i a ssib e

by t e aw existi g at such t me, to wit a ie s who seek to

procure or w o ave soug t to procure, or who have procured a

visa, or ot er docume tatio , or admissio i to the ited States,

or ot er be efit prov ded u der t e Act, by fraud or by wil fu

misreprese ti g a materia fact, u der Sectio (a) 6) C) (i) of

the Act.

he testimo y from t e Respo de t today i dicates that

he arrived i November, 99 at iami, orida a d i ediate y

bega to work for r. Noe Debraga a He i dicated that the

perso that e worked for cou d ot afford to pay im i his

supermarket busi ess but gave im a job i stocki g s e ves a d

mai tai i g produce, a d t e t e supermarket ow er furt er

testified that the Respo de t was a produce ma ager h s

e tai ed chec i g the produce as it came i a d maki g sure it was

priced correct y, a fu ct o w ich t e supermarket ow er the

ater verified to make sure that t e prici g was proper. e

Respo de t i dicated he worked from 7 00 i the mor g u ti

0 00 at ight, seve days a week He i dicated that he received

room a d board a d some pocket mo ey" from t e supermarket ow er

e Respo de t a d t e supermarket ow er were re ated by virtue

that i t eir fam es, appare t y had some sisters that were

married a d t at co ected t e two fami ies together. hey k ew

A 97 644 447 4 October 31, 0


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each othe n thei home count of ndia

he Res ondent ind cated that he obta ned a tou st B

v sa fo the u ose of com n to the n ted States to wo k h s

was h s test mon his was a tou st v sa, not a v sa such that

would allow h m to wo k he two ma n o nts of the test mon

toda would hin e on the fact that the Res ondent is alle ed and

he, essent all , sa s he was neve em lo ed fo sala he

test mon ndicates the Res ondent eceived a small ocket mone "

and oom and boa d This s not the fatal fact in th s case, as

ov din oom and boa d could be conside ed a sala unde the

law Howeve , the e s eat cont ove s e a din the so-called

ob lette f om Sabal Palm Su e ma ket ind cat n that the

Res ondent was a oduce mana e

Now, th s lette , acco din to the Res ondent s

test mon , was e uested n 00 His test mon was that the

lette was e a ed afte Novembe the st, 000 and the lette

was dated Novembe the st, 000 H s test mon s that the

lette was ene ated afte the date of the lette and that the

lette was backdated h s was to ve f h s wo k n elat onsh

with the su e ma ket and to be offe ed in the ove all ocess of

the - 40 Now, to sa whethe the lette is f audulent, it s

mo e l kel the Cou t cha acte ize this as a lette that was

e a ed afte the fact and backdated, as s the test mon

eflected b the S ecial A ents' investi ation of the Res ondent s

wo k n a an ement and b the Res ondent s test mon

A 97 644 447 5 Octobe 3 , 0


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w, the supe ma ket wne can't emembe exact when

that lette was p epa ed but he maintains the ette is n t a

f audu ent ette . he ette misstates and mischa acte izes the

c mplete sc pe and c mpass f the Resp ndent's w k. Whi e it

c u d be a gued that m and b a d might equate t a sala y, it

in n way affects the fact that the ette was dated vembe the

st, 000 and that this lette was p epa ed afte the fact and was

fa se And the statements c ntained n the face f that ette ,

given the testi n f the witnesses and the Resp ndent t da ,

th se fa se statements, as c ntained n that ette , Exhibit 2,

page 3, we e used in the p cess f btaining a ab

ce tificati n a d in use f the I 0 p cess.

he C u t, the ef e, wil sustain the Depa tment s

a legati n numbe five t the extent that it has been estab ished,

b c ea and c nvincing evidence, as he et f e menti ned, the

Resp ndent p cu ed his a issi n, visa, ad ustment the

d cumentati n benefit by f aud b wi ful mis ep esenting

a mate ial fact, t wit he had submitted n his beha f, and the

C u t w uld n te he e, this b lette which c ntained fa se

statements f the pu p ses f use in his I 0, Petiti n f

Alien W ke

t's fu the n ted that in his testim n t day, the

Resp ndent admitted that he btained his t u ist visa f the s le

pu p se f c mi g t the nited States t w k at his elative s

business and this is a pa t f f aud in and f itse f and

A 9 Oct be 3 , 0


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(

knowingly and willfully misrepresented t e purpose for w ic e

came to t e United tates. Certainly, t e epartment, s ould t ey

wish to amend a legation five, could do so but the Court does not

find t at to be fatal to allegation number five because, in the

overall totality of circumstances, the Respondent did obtain his

admission, did obtain is visa and ad supplied ot er

documentation by willfully misrepresenting t e material facts, as

contained in t e letter of ovember the st, 2000, and, as well,

in is testimony today in regard to his purposes for coming to t e

United tates as a tourist visa w en, in fact, e soug t solely to

come to work and earn money in t e United tates

e Court also noted t at the letter, referenced by t e

supermarket owner, t ere was a statement in his testimony, e said

that e could not pay him but that he could work t ere and get his

certificate to go to work for somebody else. ere's some

language in t at statement that troubles t e Court and t at's t is

overall process of how you can accumulate w at documents you need

to get approval for w at mig t be ot erwise lawful employment.

The Court firmly believes t e letter was prepared and then

backdated based upon t e evidence in the case today and,

t erefore, allegation number five will be sustained

, JR ,igration Judge r


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R I I A PA E

rI

I e e e t t at t e atta ed pro eed ng efo e

WAYN SER, JR , n t e matter of

ALE AN ER ERNAN ES

A 97 644 447

At anta, eo g a

wa eld a e e n appea , and t at t t e o g na

t an r pt t e eof o t e f e o t e Exe t ve e o

I grat on Rev ew

JLN/ JN

Janetta L N e en, an ber

Y RK S EN RAPHI S RVI S, IN34 No t eo ge StreetYo k, Penn van a 740 - 66(7 7) 854-0077

Jan a 0 0 2

omplet on ate

alexander george fernandes, a097 644 447 (bia july 16, 2013)

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