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U.S.

Department of Justice

. ,

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suire 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - DAL


125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: PICAZO ROMERO, ROGELIO

A 074-083-669

Date of this notice: 2/18/2016

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

DoYlltL

C(2J'V't.)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
Cole, Patricia A.
Wendtland, Linda S.

Usertea m: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Rogelio Picazo Romero, A074 083 669 (BIA Feb. 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Dobbs, Jered
Verdin Law Firm
900 Jackson St, Ste. 535
Dallas, TX 75202

US. Department of Justice


Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A074 083 669 - Dallas, TX

Date:

In re: ROGELIO PICAZO ROMERO

FEB 1 8 2016

APPEAL AND MOTION


ON BEHALF OF RESPONDENT: Jered Dobbs, Esquire
CHARGE:
Notice: Sec.

Sec.

237(a)(l)(A), l&N Act [8 U.S.C. 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under section
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
237(a)(l)(A), l&N Act [8 U.S.C. 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under section
212(a)(7)(B)(i)(II), l&N Act [8 U.S.C. 1182(a)(7)(B)(i)(II)] Nonimmigrant - no valid nonimmigrant visa or border crossing card

APPLICATION: Waiver of inadmissibility


On September 24, 2012, an Immigration Judge denied the respondent's request for a waiver
of inadmissibility under section 237(a)(l)(H) of the Immigration and Nationality Act, 8 U.S.C.
1227(a)(l)(H). The respondent, a lawful permanent resident who is a native and citizen of
Mexico, filed a timely appeal. On January 29, 2016, the respondent filed a motion to remand
based on intervening Board case law. The record will be remanded.
We review an Immigration Judge's findings of fact, including findings regarding witness
credibility and what is likely to happen to the respondent, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, discretion, and judgment, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The respondent adjusted his status to that of a lawful permanent resident on March 13, 1998,
based on his marriage to a United States citizen. The marriage later was determined to be
fraudulent. On January 29, 2010, the Department of Homeland Security issued a Notice to
Appear, charging the respondent as an alien who was inadmissible at the time of admission under
sections 212(a)(6)(C)(i) and 212(a)(7)(B)(i)(II) of the Act, 8 U.S.C. 1182(a)(6)(C)(i),
(a)(7)(B)(i)(II). The respondent sought relief under section 237(a)(l)(H) of the Act to waive the
charges stemming from the fraudulent marriage.
The portion of section 237(a)(1)(H) of the Act relevant to this case provides:

Cite as: Rogelio Picazo Romero, A074 083 669 (BIA Feb. 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A074 083 669


Waiver authorized for certain misrepresentations: The provisions of this
paragraph relating to the removal of aliens within the United States on the ground
that they were inadmissible at the time of admission as aliens described in section
212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney
General, be waived for any alien ... who-

(II) was in possession of an immigrant visa or equivalent document and was


otherwise admissible to the United States at the time of such admission except for
those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of
section 212(a) which were a direct result of that fraud or misrepresentation.
The Immigration Judge determined that the respondent was statutorily ineligible for the
waiver pursuant to Matter of Connolly, 19 l&N Dec. 156 (BIA 1984) (I.J. at 2-3). In that case,
the Board held that a waiver under former section 241(f) of the Act, which was the predecessor
statute of section 237(a)(l)(H), was not available to an alien who obtained his lawful resident
status through adjustment of status because the waiver was limited to grounds that existed at the
time of entry into the United States. Id. The Immigration Judge determined that there was
nothing in the legislative history of IIRIRA to indicate that Congress intended to expand the
scope of section 237(a)(l)(H) of the Act to include an alien who obtained status through
adjustment of status (I.J.at 2).
The Immigration Judge also focused on the language of former section 24l(f) requiring that
the alien was in possession of an immigrant visa or equivalent document, which is the same
language currently used in section 237(a)(l)(H)(i)(II) of the Act. The Immigration Judge
concluded that because the respondent adjusted his status from inside the United States, he did
not have the required immigrant visa or equivalent document. Thus, the Immigration Judge
ruled that the respondent was not eligible for the waiver (I.J.at 2-3).
During the pendency of the respondent's appeal, the Board issued Matter ofBouchra Agour,
26 I&N Dec. 566 (BIA 2015), in which we held that adjustment of status constitutes an
"admission" for purposes of determining an alien's eligibility to apply for a waiver under section
237(a)(l)(H) of the Act. In light of Matter of Agour, supra, we conclude that remand is
warranted for the Immigration Judge to consider further the respondent's eligibility for a waiver
under section 237(a)(l}(H) of the Act. Id. at 581-83.
The Immigration Judge additionally found that the respondent was not eligible for the waiver
under section 237(a)(l)(H) of the Act pursuant to the law of the United States Court of Appeals
for the Fifth Circuit, under whose jurisdiction this case arises (I.J. at 3-4). Specifically, the
Immigration Judge relied on Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), in which the
court held that adjustment of status was not an admission within the context of a waiver of
inadmissibility under section 2l2(h) of the Act. However, we do not find Martinez v. Mukasey,
supra, applicable when addressing eligibility for relief other than with respect to a waiver

2
Cite as: Rogelio Picazo Romero, A074 083 669 (BIA Feb. 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or
of an alien lawfully admitted to the United States for permanent residence; and

.A074 083 669


pursuant to section 212(h) of the Act. Hence, we are not persuaded Martinez v. Mukasey, supra,
precludes the respondent's eligibility for a waiver under section 237(a)(l)(H) of the Act.
Accordingly, the following orders will be entered.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the entry of a new decision.
FURTHER ORDER: The respondent's appeal is moot.

3
Cite as: Rogelio Picazo Romero, A074 083 669 (BIA Feb. 18, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The motion to remand is granted.

File:

September 24, 2012

A074-083-669

In the Matter of
IN REMOVAL PROCEEDINGS

ROGELIO PICAZO ROMERO


RESPONDENT
CHARGES:

237(a)(1)(A) - inadmissible at time of


adjustment under Section 212(a)(6)(C); and
212(a)(7)(B)(i) {II) - fraud and lack of an
immigrant visa.

APPLICATION:

Waiver under Section 237(a)(1)(H) of the Act.

ON BEHALF OF RESPONDENT: ISAUL VERDIN


ON BEHALF OF DHS: HEIDI J. GRAHAM
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 47-year-old male, native and citizen of
Mexico who entered the United States in an unknown status.

Notice to Appear was issued on January 29, 2010, charging the


respondent with being removable under the above-cited sections.
During a previous Master Calendar hearing, the Immigration Judge
found that both charges were sustained and the respondent
designated Mexico as the country of removal, should that become
necessary.
1

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

The issue before the Court today is the respondent's


No hearing was necessary on this waiver because the respondent
was statutorily ineligible for the waiver.

The respondent

adjusted status for his admission to the allegations on March


13, 1998.
fraud.

That was determined that that was based on marriage

The respondent had no valid immigrant visa at the time

he adjusted status.
The respondent is statutorily ineligible for the relief
sought because he originally obtained LPR status through
adjustment rather through consular processing.

The Board held,

in Matter of Connelly, 19 I&N Dec. 156, that the predecessor


statute, 241(f), was not available to aliens who had obtained
LPR status through adjustment but rather was only available
through aliens who had obtained status through consular
processing.

While the statute was re-numbered in IIRIRA in

1996, there is nothing in the legislative history of IIRIRA


which indicated that it was the intent of Congress to broaden
the scope of this statute to include aliens who obtained status
through adjustment.
Furthermore, the pertinent language of the statute,
although some of the language has changed, the pertinent
language has not changed.

The current language of the statute

reads that the alien must have been in.possession of "an


immigrant visa or equivalent document."
A074-083-669

Now, that is the exact


September 24, 2012

Immigrant & Refugee Appellate Center, LLC | www.irac.net

application for a waiver under Section 237(a) {1} (H) of the Act.

same language which was in effect in 1984 in the predecessor


Connelly.
Now, in this case, there is no immigrant visa.

specifically asked the parties prior to the decision if there


was an immigrant visa and both parties reaffirmed that this was
an adjustment case and not a case of consular processing.
immigrant visa exists.

No

The respondent contends that the phrase

equivalent document somehow refers to an I-130 or an I-485 or


some other document relating to adjustment of status.

Clearly

that is not the case because that same phrase, equivalent


document, was in the statute in 1984 when the Board made its
decision in Matter of Connelly.
Furthermore, the Fifth Circuit CourtBoard of Appeals has
specifically held that adjustment of status is not an admission
and that case is Martinez v. Mukasy, 519 F. 3d 532 (5th Cir.
2008) and the Board has acquiesced in that case in Matter of
Rodriguez, which is 25 I&N Dec. 784 (2012).

So, since the Fifth

Circutt's position is that an adjustment is not an admission,


therefore it is clear that a 237(a)(1)(H) waiver is not
available to somebody who adjusted status because that waiver
is, by its very terms, available only at the "time of
admission".

That is a direct quote from the statute, and so it

is clear that at least in the Fifth Circuit, this waiver is not


available to somebody who obtained status through adjustment.
A074-083-669

September 24, 2012

Immigrant & Refugee Appellate Center, LLC | www.irac.net

statute, 241(f), when the Board made its ruling in Matter of

So, for these reasons, the waiver is not available.


prior to the decision.
237(a)(1)(H).

The only relief requested was

There is no other relief. 1

Because the respondent is ineligible for 237(a)(1)(H) and


has identified no other relief from removability, therefore it
is the decision of the Court that the respondent be removed from
the United States to Mexico on the charges contained in the
Notice to Appear.

R. WAYNE KIMBALL
Immigration Judge
1 In addition to the ineligibility noted, I will take note that there
is possible a second reason why the respondent is statutorily
ineligible and that simply relates to the fact that there never was a
valid visa in the first place. In most of the cases in which a 24l(f)
waiver or a 237(a)(1)(H) waiver have been found, have been cases
where, for example, there was a valid visa in existence but there was
an age-out issue where some inadvertent, whether the respondent was
aware or not, and therefore there was a fraud or there was not a
fraud, there was an actual visa in existence. That is not the case
here. There never was a visa in existence here and so it is an open
question in my mind whether he could have got this waiver in any event
because the statute, 237(a) (1) (H), specifically says that it operates
to waive 212(a)(7) only to the extent that 212(a)(7) is "a direct
result of the fraud or misrepresentation." Here, the 212(a)(7) is not
a direct result of the fraud or misrepresentation; it is a result of
the fact that he simply did not have an immigrant visa either through
employment or through family. He simply did not have a visa and so I
am not going to make a ruling on that one way or the other. I simply
note that it is an outstanding issue, but I am not going to make a
decision on that issue. Potentially, it is a second reason why he
could not get this waiver.

A074-083-669

September 24, 2012

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The respondent was given an opportunity to request relief

/Isl/

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigration Judge R. WAYNE KIMBALL


kimballr on December 21, 2012 at 4:20 PM GMT

A074-083-669

September 24, 2012