U.S.

Department of Justice
Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk

Immigrant & Refugee Appellate Center | www.irac.net

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Carbonell, Clarisse 3200 NE 2nd Avenue Miami, FL 33137

DHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

Name: LUGO TORRES, DEMETRIO EN ...

A 096-599-329

Date of this notice: 1/17/2013

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

DcrutLCtVLAJ
Donna Carr Chief Clerk Enclosure
Panel Members: Kendall-Clark, Molly Liebowitz, Ellen C Guendelsberger, John

Userteam: Docket

Cite as: Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision ofthe Board of Immigration Appeals

File: A096 599 329- Miami, FL In re: DEMETRIO ENRIQUE LUGO-TORRES IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. Clarisse Carbonell, Esquire

Date:

JAN 17 2013

Immigrant & Refugee Appellate Center | www.irac.net

212(a)(6)(C)(i), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)]Fraud or willful misrepresentation of a material fact 212(a)(7)(A)(i)(l), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(l)]Immigrant - no valid immigrant visa or entry document

Sec.

This matter was last before the Board on December 21, 2011, at which time we dismissed the respondent's appeal from an Immigration Judge's February 16, 2010, decision, sustaining the charges of removability under sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(l) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(6)(C)(i), 1182(a)(7)(A)(i)(l). On July 16, 2012, the United States Court of Appeals for the Eleventh Circuit granted the government's motion to remand, vacated our decision, and remanded for further proceedings to determine whether the respondent should have been treated as an applicant for admission or a returning lawful permanent resident, and whether the Immigration Judge properly allocated the burden of proof. On remand, the respondent filed a brief arguing the Department of Homeland Security (DHS) improperly charged him as an arriving alien rather than a returning lawful permanent resident upon his return from a brief trip abroad in 2009, notwithstanding that he was accorded lawful permanent resident status on October 23, 2004. Moreover, he asserts the Immigration Judge erred in placing the burden of proof squarely on the respondent, where the Act states that a returning lawful permanent resident shall not be regarded as seeking an admission unless the DHS proves by clear and convincing evidence that one of the grounds specified at section 101(a)(l3)(C) of the Act, 8 U.S.C. 1101(a)(13)(C), apply. The respondent also argues the Immigration Judge erred in relying on unauthenticated foreign records, and in discounting the evidentiary weight of his birth certificate. The DHS did not file a brief on remand. We will remand the record for the Immigration Judge to consider the effect of Matter of Rivens, 25 I&N Dec. 623 (BIA 2011 ), on this case, and for such further proceedings as may be appropriate. On remand, the respondent should have the opportunity to raise the evidentiary issues he now asserts on appeal. Accordingly, the record will be remanded. The following order will be entered.

Cite as: Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)

A096 599 329

ORDER: The record is remanded for further proceedings consistent with the foregoing decision and the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

F RTHEBOARD

Cite as: Demetrio Enrique Lugo Torres, A096 599 329 (BIA Jan. 17, 2013)