U.S.

Department of Justice

Executive Office for Immigration Review

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

OHS/ICE Office of Chief Counsel - HAR

P. 0. Box 230217
Hartford, CT 06123-0217

Name: LUCERO, VICTOR MANUEL

A 074-912-171
Date of this notice: 12/27/2016

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

DorutL ct1/VL)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Manuel Victor Lucero, A074 912 171 (BIA Dec. 27, 2016)

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

Makabi, Perham
Law Office of Perham Makabi
125-10 Queens Blvd Ste. 319
Kew Gardens, NY 11415

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice ofthe Clerk
5107 Leesburg P;ke, Suite 2000

Falls Church, Virg;nia 2204/

DHS/ICE Office of Chief Counsel - HAR

P. 0. Box 230217
Hartford, CT 06123-0217

Name: LUCERO, VICTOR MANUEL

A 074-912-171
Date of this notice: 12/27/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

boYUtL

{!{1/\A)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly

Userteam:

Cite as: Manuel Victor Lucero, A074 912 171 (BIA Dec. 27, 2016)

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

LUCERO, VICTOR MANUEL

A074-912-171
FRANKLIN COUNTY CORR
160 ELM ST
GREEN FIELD, MA 01301

'

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A074 912 171-Hartford, CT

Date:

In re: MANUEL VICTOR LUCERO

DEC 2 7 2016

MOTION
ON BEHALF OF RESPONDENT: Perham Makabi, Esquire
APPLICATION: Reopening

The respondent, a native and citizen of Ecuador, timely moves the Board pursuant to section
240(c)(7) of the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(7), and 8 C.F.R. 1003.2
to reopen his removal proceedings to reapply for adjustment of status and to apply for
cancellation of removal for certain nonpermanent residents. In our decision dated May 20, 2016,
we reissued our January 12, 2006, order and denied his motion to reopen. Our January 12, 2006,
order had affirmed without opinion the Immigration Judge's October 13, 2004, decision which
found the respondent removable, denied his request for a continuance, and pretermitted his
application for adjustment of status. The record before us does not contain a response from the
Department of Homeland Security ("DHS"). The motion will be denied in part and granted in
part.
I. ADJUSTMENT OF STATUS
Pursuant to section 204(c) of the Act, 8 U.S.C. 1154(c) [limitation on approval of petitions
in cases of marriage fraud], the respondent is not eligible to have a visa petition approved. On
November 20, 1998, the DRS denied the visa petition filed on the respondent's behalf and made
a marriage fraud finding (Exhs. R7, R8). The DHS found that prior to marrying the respondent
the petitioner had previously married two other aliens and those marriages were not listed in the
visa petition. He appealed the visa petition denial. The Board dismissed the appeal on June 15,
1999, on the ground that only the petitioner or an authorized representative for the petitioner is
eligible to appeal the denial of a visa petition (Executive Office for Immigration Review records).
See 8 C.F.R. 1003.3(a)(2) and (3). The November 20, 1998, DHS marriage fraud finding is
thus an administratively final finding.
The respondent argues that pursuant to Matter of Christo 's, Inc., 26 l&N Dec. 537, 540
(AAO 2015), the bar under section 204(c) of the Act does not apply when the marriage in
question was "non-existent" or "fictitious." Although this is correct, the respondent's marriage
was not "non-existent" or "fictitious." His marriage took place and was real. The fact that his
marriage was not legally valid to confer immigration benefits does not make it "non-existent" or
"fictitious." We conclude that the respondent is barred by section 204(c) from approval of the
visa petition filed by his present U.S. citizen spouse. We will thus deny his motion to reopen to
reapply for adjustment of status.
Cite as: Manuel Victor Lucero, A074 912 171 (BIA Dec. 27, 2016)

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

IN REMOVAL PROCEEDINGS

...
A074 912 171
II. CANCELLATION OF REMOVAL UNDER SECTION 240A(b)(1) OF THE ACT

We will thus deny the respondent's motion to reopen to reapply for adjustment of status,
grant his motion to reopen to apply for cancellation of removal for certain nonpermanent
residents, and remand the record to the Immigration Judge for further proceedings.
Accordingly, the following orders will be entered.
ORDER: The motion to reopen to reapply for adjustment of status is denied.
FURTHER ORDER: The motion to reopen to apply for cancellation of removal for certain
nonpermanent residents is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

2
Cite as: Manuel Victor Lucero, A074 912 171 (BIA Dec. 27, 2016)

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

We reconsider sua sponte that portion of our May 20, 2016, decision which indicated that the
respondent has not demonstrated eligibility for cancellation of removal under section 240A(b)(l)
of the Act, 8 U.S.C. 1229b(b)(l), and citing to section 240A(d)(l) of the Act (continuous
physical presence in the United States ends upon service of a Notice to Appear). On August 9,
2004, the Immigration Judge granted the respondent's motion to reopen the August 9, 2000, in
absentia order. The motion alleged that the respondent had not received the Notice to Appear
and notice of hearing. The DHS affirmatively did not oppose reopening (Exhs. R3, R4, RS).
Thus, it appears that service of the Notice to Appear (Form 1-862) [Exh. R6] issued on March 23,
2000, was not effective until the respondent, through former counsel, acknowledged proper
service of the Notice to Appear in 2004 (Exh. R9). Since the respondent arrived in the United
States in 1991 (Exh. R6), he had accumulated over 10 years continuous physical presence in the
United States prior to the 2004 service of the Notice to Appear. Under these circumstances, and
absent any opposition from the DHS, we will, in the exercise of our sua sponte authority, grant
his motion to reopen to apply for cancellation of removal for certain nonpermanent residents.