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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Pickering, Lisa Diane Law Office of Roni P. Deutsch 16255 Ventura Blvd Suite 1120 Encino, CA 91436

Name: M

16255 Ventura Blvd Suite 1120 Encino, CA 91436 Name: M , N 5107 Leesburg Pike, Suite

, N

16255 Ventura Blvd Suite 1120 Encino, CA 91436 Name: M , N 5107 Leesburg Pike, Suite

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014 -196 Date of t h

-196LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014 Date of t h i

Date of this notice: 12/1/2017

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

Enclosure

Panel Members:

Greer, Anne J. Wendtland, Linda S. Pauley, Roger

Sincerely,

Greer, Anne J. Wendtland, Linda S. Pauley, Roger Sincerely, Donna Carr Chief Clerk Userteam: Docket For

Donna Carr

Chief Clerk

Userteam: Docket
Userteam: Docket
Roger Sincerely, Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions, visit

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)

For more unpublished BIA decisions, visit www.irac.net/unpublished/index Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1,

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U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

File: 196 - Los Angeles, CA Date:

196 - Los Angeles, CA

Date:

In re:

N

N

M

   

IN REMOVAL P ROCEEDINGS

APPEAL

ON BEHAL F OF

APPLICATION:

RE SPONDENT:

Lisa Pickering, Esquire

Adjustment of status

DEC -

1 2017

The respondent, a native of Yugoslavia and a citizen of Serbia, appeals from an Immigration Judge's November 15, 2016, decision denying her application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C.§ 1255. The appeal will be sustained and the record will be remanded for further proceedings consistent with this order.

We review an Immigration Judge's factual determinations, including credibility determinations, for clear error. See 8 C.F.R. § 1003.l(d)(3)(i) (2017). The Board uses a de novo standard of review for questions of law, discretion, judgment, and all other issues in appeals from decisions of Immigration Judges. See 8 C.F.R.§ 1003.l(d)(3)(ii) (2017).

The respondent, as an applicant for relief, bears the burden to show, for purposes of her adjustment of status application, that she is eligible for relief, and merits it in the exercise of discretion. 8 C.F.R. § 1240.8. An adjustment application is usually granted in the absence of adverse factors. Factors such as family ties, hardship, and length of residence in the United States are considered positive factors meriting a favorable exercise of administrative discretion. Matter ofArai, 13 l&N Dec.494 (BIA 1970). Where negative factors exist, the alien may be required to show unusual or even outstanding offsetting equities. Id.

The respondent applied for adjustment of status pursuant to the approved visa petition filed on her behalf by her son, who is a naturalized citizen of the United States (U at 2). The respondent has family ties in the United States, has no criminal record, and has multiple letters of recommendation in the record attesting to her honesty, kindness, and fitness for a positive exercise of discretion (U at 2; Exh. R-2). Although she was found by the Immigration Judge to be statutorily eligible for the relief of adjustment of status, this relief was denied in the exercise of discretion because of the actions of the respondent's former husband, a Serbian national who was indicted for war crimes by the International Criminal Tribunal for the Fonner Yugoslavia (ICTY).

Specifically, the Immigration Judge found that the ex-husband enriched himself through a brutal campaign of ethnic cleansing, including murder, rape, robbery, and looting, and that the respondent, in tum, "profited directly" from her husband's crimes (U at 3). Due to these actions,

the respondent enjoyed an "unchanged

could "procure whatever foods she desired, including organic meat and vegetables" (U at 3). In contrast, the Immigration Judge found that "average Serbs had great difficulty purchasing food" (/d). Additionally, the Immigration Judge found that the respondent allowed herself to accept

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)

during the war in the former Yugoslavia, and

lifestyle"

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Pl.
Pl.

196

support from her ex-husband even after she left him in 1994, in the form of housing and child support "(U at 4). Furthermore, the hnmigration Judge noted that the respondent sued to contest

her ex-husband's will so that she could "continue[]

to

profit from [his] misdeeds" (U at 4).

The respondent challenges the hnmigration Judge's conclusions that she was living a lavish lifestyle because of her husband's misdeeds, and contends that the hnmigration Judge mischaracterized the evidence of record and was not an impartial trier-of-fact (Respondent's Br. at 12-14). The respondent also argues that she was unaware until many years later that her ex­ husband was guilty of such deplorable crimes since he was portrayed in the Serbian media as a hero while she lived there (Respondent's Br.at 14-15).

We are persuaded by the respondent's appellate contentions, and will sustain the appeal and grant relief as a matter of discretion. First, the weight of the evidence does not support the Immigration Judge's finding that the respondent leveraged her ex-husband's ill-gotten gains to live a lavish lifestyle during the war in the former Yugoslavia Rather, she testified that she had no money for anything other than food while she lived in Belgrade during the war years from 1991-

1993 (Tr. at 96). She testified that after her brother was killed in the war in 1991, she rarely went

out and used an employee of the family's cafe to procure food for her (Tr. at 87). While it is true that the respondent was able to obtain fresh food during the war, this does not appear to differ significantly from the experience of the average resident of Belgrade, given that the evidence reflects that citizens of this city did not experience hunger during the war and were generally able

to obtain food grown in nearby agricultural areas (Tr.at 37; Exh.R-4).

The respondent's standard of living in Greece, where she moved after leaving her husband in 1994, also appears to have been modest. While she did accept financial support from her ex­ husband, she testified that it went to the children and for their living expenses (Tr. at 94). Furthermore, the respondent and her four children shared a three-bedroom apartment in Greece, and she worked part-time and studied to learn the language (Tr. at 93-95). Her children attended a private American school because they did not speak Greek, but had learned English in Belgrade (Tr.at 111-12). In sum, we find that the record lacks support for the Immigration Judge's factual finding that the respondent lived a lavish lifestyle and knowingly profited from her ex-husband's misdeeds. The record also lacks support for a conclusion that the respondent was aware of her husband's crimes, as witnesses testified that he was depicted in local media as a hero and a defender of Serbian rights (Tr. at 33-34, 41, 51).

The record is unclear about why the respondent contested her ex-husband's will and when she became aware of the full extent of his extensive war crimes. She experienced a severe illness in

1999 and her recovery extended for several months including to the time of the release of the

indictment against her ex-husband in April 1999 (Tr.at 102-03). She stated that she had difficulty accepting that he had perpetrated the heinous acts that he was accused of, and that in any case, she

was not in regular contact with him (except for discussing their children) since leaving Serbia in

1994 (Tr.at 101-05). Even if she were aware of his past at the time she contested his will, that,

standing alone, does not provide support for a discretionary denial of relief in our view. Furthermore, our review of the record does not reflect that she was an uncooperative or hostile witness (U at 5). At the same time, we decline to address the respondent's due process arguments

or her contention that the hearing below was not impartial, given the result reached herein.

2

the hearing below was not impartial, given the result reached herein. 2 Cite as: N-M-, AXXX

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net 196 Considering the record as a whole, we

196

Considering the record as a whole, we are persuaded by the respondent's appellate argument that the record reflects adequate positive equities to offset any negative considerations arising due to her association with her ex-husband. Matter ofArai, 13 I&N Dec. at 494.

We will therefore enter an order vacating the Immigration Judge's denial of relief, and remanding this record to the Immigration Court to grant the respondent's application for relief upon successful completion of background checks and other relevant investigations. The following orders are hereby entered.

ORDER:

The respondent's appeal is sustained and the November 15, 2016, order is vacated.

FURTHER ORDER: Pursuant to 8 C.F . R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the

opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by

8 C.F.R. § 1003.47(h).

&rv FORTHEB� '
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order as provided by 8 C.F.R. § 1003.47(h). &rv FORTHEB� ' 3 Cite as: N-M-, AXXX

3

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)

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

(

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA& Refugee Appellate Center, LLC | www.irac.net ( File No.:   )   ) In the

File No.:

 

)

 

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In the Matter of:

)

IN REMOVAL PROCEEDINGS

)

M

 

)

N

N
 

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)

Respondent

 

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CHARGE:

Immigration and Nationality Act (INA) Section 237(a)(I)(C)(i)­

nonimmigrant alien who engaged in unauthorized employment

APPLICATIONS: Adjustment of Status ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:
APPLICATIONS:
Adjustment of Status
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:

Lisa Diane Pickering, Esquire Law Offices of Roni P. Deutsch 16255 Ventura Boulevard, Suite 1120 Encino, California 91436

Ingrid Abrash, Senior Attorney U.S. Department of Homeland Security 606 South Olive Street, Eighth Floor Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

California 90014 DECISION AND ORDER OF THE IMMIGRATION JUDGE I. PROCEDURAL IDSTORY On March 7, 2014,

I. PROCEDURAL IDSTORY

On March 7, 2014, the Board of Immigration Appeals (Board) upheld the Court's determination that Respondent and her children are not eligible for asylum, withholding, or

protection under the Convention Against Torture.

Respondent's case, severed it from those of her children, and remanded to the Court to determine if Respondent is eligible for adjustment of status.

On August 29, 2014, the Board reopened

On February 6, 2015, Respondent filed a Form 1-485, Application to Register Permanent

Residence or Adjust Status (Form 1-485) with the Court.

Respondent's sponsor, Nikola Martinovic, testified on her behalf, as did her friends Sara Sedlick,

Donka Nemar, Daniela Aleksich, and Catherine Farfan.

July 27, 2016, Respondent testified in support of her application.

MacQueen, an expert on the former Yugoslavia, testified on behalf of the DHS.

Exh. RI at 2.

On February 29, 2016,

On March 14, 2016, June 2, 2016, and

On July 27, 2016, Michael

For the following reasons, the Court DENIES Respondent's application.

June 2, 2016, and On July 27, 2016, Michael For the following reasons, the Court DENIES
June 2, 2016, and On July 27, 2016, Michael For the following reasons, the Court DENIES

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net II. LAW, ANALYSIS AND FINDINGS OF THE COURT

II. LAW, ANALYSIS AND FINDINGS OF THE COURT

A. ·Statutory Eligibility for Adjustment of Status

An alien bears the burden of establishing her eligibility for relief.

See 8 C.F.R.

§ 1240.8(d); Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012) (en bane). The Attorney General may adjust the status of any alien who was inspected and admitted or paroled into the United States to that of a lawful permanent resident. INA§ 245(a). To be eligible for adjustment of status, an alien must: (1) file an application for adjustment of status, (2) be eligible

to receive an immigrant visa, (3) be admissible to the United States for permanent residence, and (4) have an immigrant visa immediately available to her at the time his application is approved. Id; 8 C.F.R.§ 1245.l (a).

his application is approved. Id; 8 C.F.R.§ 1245.l (a). Respondent has filed a Form 1-485 with
his application is approved. Id; 8 C.F.R.§ 1245.l (a). Respondent has filed a Form 1-485 with

Respondent has filed a Form 1-485 with the Court.

Exh. RI at 2.

She has been approved

for an immigrant visa as the parent of a United States citizen; as such, she is eligible for an

immigrant visa and there is one immediately available to her.

Department has identified no grounds on which Respondent would be inadmissible to the United

States for permanent residence, and the Court can find none in the record.

Department conceded on February 19, 2016, that Respondent is statutorily eligible for adjustment of status. As such, the Court concludes that Respondent is statutorily eligible for adjustment of status.

See INA§ 210(b).

Further, the

Finally, the

B.

Discretion

As well as meeting the statutory criteria for adjustment of status, an alien must demonstrate that she merits a favorable exercise of discretion. Matter ofArai, 13 l&N Dec. 494,

495 (BIA 1970); Matter ofBlas, 15 I&N Dec. 626, 629 (BIA 1974; AG 1976).

"extraordinary discretionary relief' of granting adjustment of status in removal proceedings,

which dispenses with the ordinary consular procedures for adjustment of status, "can only be

granted in meritorious cases."

such as family ties, hardship, and length of residence in the United States are considered

countervailing factors that may overcome adverse factors such that an alien merits the favorable

exercise of discretion.

The

Blas, 15 I&N Dec. at 630.

The existence of favorable factors

Id.

Respondent does have some positive equities.

She has lived in the United States for over

a decade, albeit mostly illegally.

citizen friends who have written letters and testified as to her honesty and kindness.

R3, Tabs 0, R; Exh. R2, Tab 6.

the United States.

She has a United States citizen son and many United States

See Exh.

Further, it does not appear that she has committed any crimes in

See Exh. R2, Tab 5.

that she has committed any crimes in See Exh. R2, Tab 5. Nevertheless, the Court finds

Nevertheless, the Court finds that Respondent does not merit discretionary relief, as she

directly profited from crimes against humanity.

Respondent was married to Zelkjo Raznatovic, commonly referred to as Arkan, a notorious

Serbian war

As discussed in the Court's prior decision,

criminal and organized crime leader. 1 Arkan was indicted by the International

1 The Court's prior analysis of Respondent's ties to Arkan and her unsuitability for discretionary relief is as relevant in the adjustment context as it was in the asylum decision, and is hereby incorporated by reference.

2

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net Criminal tribunal for the Former Yugoslavia (ICTY) for
Immigrant & Refugee Appellate Center, LLC | www.irac.net Criminal tribunal for the Former Yugoslavia (ICTY) for

Criminal tribunal for the Former Yugoslavia (ICTY) for the atrocities he committed in the

Balkans in the 1990s. Exh. 5A, Tab B at 6. Arkan took control of the Bosnian town of Sanski Most and detained non-Serbs, robbing them of valuables and expropriating their property. Id at

8. He and his soldiers abducted a large number of people, held them in squalid conditions,

beating them and depriving them of food and water. As a result, two of the prisoners died. Id at

9-10. Finally, Arkan and his men took the prisoners to a secluded area, raped the only woman in the group, and murdered them. Id.

Arkan and his men "tortured, mutilated, and killed" non-Serb civilians as part of a

campaign of ethnic cleansing, and extorted money from the survivors who tried to flee. Id, Tab

C at 22.

Tab H at 34.

belongings of his non-Serb victims. Id at 38.

He and his soldiers removed Croat patients from a hospital and slaughtered them. Id.,

Arkan profited handsomely from his war crimes, expropriating the money and

At this time, the economic situation in Serbia was dire.

Both expert testimony and

situation in Serbia was dire. Both expert testimony and documentary evidence shows that Serbia was in

documentary evidence shows that Serbia was in the midst of massive hyperinflation, such that average Serbs had great difficulty purchasing food. See Exh. R4, Tab A2. Ordinary Serbs were reduced to preindustrial foodstuffs and recipes from the Second World War. Id. at 13-15. "Even though fruit and vegetables were available to buy at green markets, most people could not afford the cost unless they had foreign currency savings to spend on food." Id at 18. While many Serbs had family in the countryside they could turn to for food, gasoline was extremely expensive, and the bus system was greatly reduced. Id According to Mr. MacQueen, Serbs experienced a level of privation not seen since the Second World War.

Respondent benefitted from Arkan's plundering and war profiteering to avoid the suffering of her fellow countrymen. Respondent testified that her lifestyle was unchanged by the war, and that she was able to procure whatever foods she desired, including organic meat and vegetables. She would tell the chef of the restaurant she and Arkan owned what she wanted, and he would purchase it for her. She would occasionally go to the market to purchase food, and always had enough money to purchase what she wanted. Farmers also came to her home to deliver food to her. Mr. MacQueen opined that this was only possible due to the hard currency income produced by Arkan's criminal activity.

currency income produced by Arkan's criminal activity. The Court is not persuaded otherwise by Respondent's

The Court is not persuaded otherwise by Respondent's evidence.

In particular,

Respondent's witnesses Ms. Farfan and Ms. Sedlick have no first-hand knowledge of conditions

in Serbia, and Ms. Nemar did not testify as to conditions in Serbia in the 1990s. Ms. Aleksich

testified that while her family did not starve, they did have to make sacrifices and adjust what

they ate during the war.

standard of living as before the war was unusual.

The evidence shows that Respondent's ability to maintain the same

Mr. MacQueen testified that the only way a

person could have maintained their prewar standard of living in the early 1990s would have been

to have a steady supply of foreign hard currency.

rather stayed home to care for her children; as such, her economic stability in the midst of the

greatest period of inflation in modem history was only possible due to her husband's income. Arkan made his money through robbery and looting his victims, Respondent profited directly from his war crimes.

Respondent testified that she did not work, but

As

3

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Immigrant & Refugee Appellate Center, LLC | www.irac.net Respondent's claim that she did not benefit from

Respondent's claim that she did not benefit from Arkan's misdeeds is even more implausible when her lifestyle after leaving Serbia is taken into account. Respondent admitted that Afkan purchased two apartments for her and the children in Greece, with a combined area of

Nor was his support limited to buying her

162 square meters, or approximately 1750 square feet.

a large residence; Arkan provided ongoing financial support for her and the children.

money paid for Respondent's children to attend an elite private school attended by the daughter of the Ambassador of the Uwted States. See Exh. R3 at 10. Respondent's insistence that Arkan only provided for the children, rather than for her, is belied by her testimony that she only worked part-time and earned little money. As such, the Court finds that Respondent lived for many years in Greece from the profits of Arkan's war crimes.

Arkan's

She

testified that her move to the United States was financed in large part by the rental and sale of the

apartment Arkan gave her.

humanity was instrumental in enabling Respondent to enter this country.

Respondent further relied on Arkan's wealth to establish herself in the United States.

As such, the money that Arkan obtained from crimes against

Respondent's attempts to contest Arkan's will and regain ownership of his mansion from

his new wife show a continued desire to profit from Arkan's misdeeds.

lawsuit in Serbian court to have Arkan's will declared invalid, with the aim of having her and her

children inherit some of Arkan's property.

after Respondent, by her own admission, was told by Arkan that he had been indicted for war crimes. Respondent testified that she never read the indictment and trusted Arkan when he said

it was all lies. Given that Respondent knew of Arkan's extensive prior violent criminal history,

her decision to ignore the indictment and assume that any new charges against him were false is

willful blindness.

continued his criminal career after they were married (and after he had sworn to mend his ways);

as such, her decision to blindly trust his assertion that the ICTY indictment was based on

untruths was entirely unreasonable.

Arkan's crimes, but she seemingly had no qualms about profiting from them.

Respondent filed a

See

Exh. 3A.

Importantly, this lawsuit was filed

Respondent testified that she knew that Respondent was a bank robber who

Respondent may not have wanted to know the details of

While Respondent testified on remand that she had no interest in the property, would

have given it away if she had won, and was only seeking to expose government corruption, this

is a novel assertion.

recover the property she believed was owed to her and her children, nor did she give any

indication that she would not have kept it, despite being extensively questioned on the matter. She testified that she hired a lawyer as soon as she heard that the will excluded her and her

children.

Respondent never testified at the original hearings that she did not want to

testified at the original hearings that she did not want to The Court finds that Respondent's

The Court finds that Respondent's shifting story lacks credibility, and concludes that

she sought to profit from Arkhan's war crimes by inheriting his property.

from Arkhan's war crimes by inheriting his property. Respondent argues that she consistently opposed Arkan's

Respondent argues that she consistently opposed Arkan's going to war and building a private army, and that this should prevent his activities being a ground for denying her relief.

See Resp't's Closing Statement.

See Exh. 8A, Tab Vat 12.

that she opposed the war for any but personal reasons.

to war because she wanted him to spend more time at home with her and her children.

not want her brother to go to war because she was worried he would be killed.

The record does show that she opposed Arkan's going to war.

However, there is no indication in either her testimony or the record

Respondent opposed her husband going

She did

Finally, she

4

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net Respondent did not oppose She did not oppose

Respondent did not oppose

She did not oppose

violations of human rights and war crimes; she wanted her husband to spend more time at home

and her brother to be safe.

Even after Arkan himself informed her that he had been indicted by the ICTY for war crimes, Respondent did not bother to read the indictment, relied on Arkan's statement that it was false, and continued accepting his money.

opposed the war because she blamed Arkan for her brother's death.

the invasion of Croatia and Bosnia; she opposed her family being involved.

Most importantly, she did not refuse to benefit from Arkan's crimes.

The Court also notes Respondent's dissembling and unwillingness to submit to cross­

examination.

repeatedly refusing to answer questions and telling the OHS (and at times the Court) to read the

evidence or listen to her witnesses.

unwelcome from an applicant seeking discretionary relief, especially one with significant

negative equities.

Respondent was hostile and uncooperative when questioned by the OHS,

This arrogance and disrespect for the judicial process is

The Court declines to exercise its jurisdiction on the behalf of an alien who benefitted for decades from horrendous crimes against humanity. While Respondent herself was not involved directly in Arkan's crimes, she stayed with and accepted money from a man involved in the mass murder, rape, torture, and robbery of civilians. The wealth that Arkan accumulated from his crimes allowed Respondent to weather a massive economic downturn unharmed, live in an expansive apartment in Greece, and send her children to an elite private school to hobnob with diplomats' children. Finally, Arkan's stolen money allowed Respondent to move to the United States and buy a house. Respondent's privileged lifestyle was built on the foundation of atrocious crimes against humanity. The Court will not reward this by granting her discretionary relief.

Accordingly, the following order will be entered:

ORDER

IT IS HEREBY ORDERED that Respondent's application for adjustment of status pursuant to INA§ 245(a) be DENIED.

IT IS FURTHER ORDERED that Respondent be removed from the United States to SERBIA on the charge contained in the Notice to Appear.

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is due at the Board of Immigration Appeals on or before thirty (30) calendar days from the date of service of this Order.

Dated: November 15, 2016

(30) calendar days from the date of service of this Order. Dated: November 15, 2016 TARA

TARA NASELOW-NAHAS

Immigration Judge

5