Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

8/9/2019 Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)

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Farabee, Allen W EsqP.O Box 139Bualo NY 4213

Name: PERSAUD MTILAL

of

Executve Oce r Immigration Review

oard �mmigrton ppeasOc of h Crk

5 /07 Leesburg Pike, Sue 2000Fll Cuc Vn 0530

HS/ ICE Office of Chief Counsel - BUF130 Delawae Avenu, Room 203Buffalo NY 1202

A 03909797

Date of this notic: 2/6/ 205

closed is a copy of the Board's deisio and order in the above-rerenced ase.

cose

Mb: P A

Sceely,

Dona Ca

Cef lerk

k

For our Index of Unpublished BIA DecisionsVisit www.irac.net/unpublished/index

Cite as: Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)



partmnt of Jutic Deision of he Boad of Immigation AppeasExecutive Oce r Immigation Review

Falls Chrc, Virgna 20530

ile: A09 091 797 - Bualo NY

In re MOTILALL PERSAD

MAL PROCEEDNGS

PAL

O BHALF O SPOD Aen W. arabe squre

O BEAL OF HS

C

Denis C ocSnior Atoy

Dae:

oice e 2 2a)7)( A))(, I& N Ac 8 UC 82a)7) A)((] -Imigran - o valid imigan vsa or etr docuent

FEB 6 25

e respodet a native and citize of yana timey apeals an Immigration Judg'sOoer 1S, 2012 decision ng te respond o adissle as cargd Te recor wilbe remaded to e Immgaon udge r ter poceedings and r entry of a ne

decision

e responden was amied to te nited States as a lawl pemanent resident onanuar 22 195 In 2005, t respondent aried a Canadian citien Tr at 35 Wen terespoden attemptd to rtu to t nted Stats o aada at te S/Canadian order

crossing at Buao ew ork on Frry 1 0 a rview o te rspondents gratione sowed tat e ad copted ad sged a or -40 andont o aw ranntesident Status on Spemer 15 009 we previousy atptd to ross t ordr oCanada nto t nted States aer visiting s E 2 a D otic to Appear wasissued on ebruary 11 2011 arging t responden wt inadissiit under setion 2a7)AiI) of te Act SC § 12a7iI an immigan not in te

possession of a vaid igan visa or enty docment (x. 1) In a decision dated October 18202 e Iigraio udge ud at e Deame of Holn Secui "DS) ad cie is urde of provig b cear ad convincing evec te responent was inadmssieas carged ndng tat te respoent ad aandoned is prior aw pemaent resdent status

n ain a admitted r pannt rsdenc n e nited States is not regarded asseing admission ness among oter tngs t aien as aadoned or rlnqised tat status ee section 01a3C of t Imigration and ationaliy At SC l 10a3C Were an appicant r admission to t nited States as a colorae caim toretig residen status, te burdn s on te Depme of Hoeand Securit HS to sowy clear unequivoca and convicng viden ta te applan soud e deprived of er LP




A039 91 797

stas. Matadin v Muksey 546 F3d 85, 9 (2d Cir. 200); Mater of Huang 19 I&N Dec49 (B 98) n deeining whehe he DHS has me i brden of proof, we look towehe he aen reuning o an unenquhed lawl ermanent resdene aer a emporayvsit abroad d a 753 Te nenon of he aen, when an be aserned, l cono Id;atter ofKane 15 &N Dec 258 (B 975) Suh nen may e deened by exang e

ocaon of famy es, propery hodngs, jo, and wheher he aen inended o re o theUned Saes as a place of empoyen or busines or as an aual ome Id. We hae asoconidered he appican's prpose n depng om he Unied Sate, wheher he vs abroadcan be expeced o einae wihin a reavey sho period of me, and wheher e ermnaondae c be xed by some ey even ate of Kane, supra aien's proed nen ore o he Uied Sae wou more no uen o uppor he aens e. Matter ofHuang supa a 7 55

In ndng ha e respondent aadoned hs R satu, e mmigraon Judge eed on e-47 sgned by he respondent nd rejeced e reonden aim ha e execued he n a er ha wa kowng, negen, and vounay (J a 67) However, even assumng,

whou decding, ha e mgraon dge was corre n s anayss as to e 407, thsdoumen, aone, s no dposive of the abndoen ie n order o determne wether anLR has abandoned su aus, he totali of the cicumstances inudng e ors lsedabove, mus be onidered See eg, Hana v Goales 40 3d 472, 476 (6th 2005)(saing ha, at eas n the conex of excluson oceedng, a cou houd consder he "oatyof he rcumsce in deenng whether a py has abandoned R au) oinv Ashco 335 3d 415, 41 (5 Cir 23) ng Reno 13 3d 1512 (9h . 99).

n s cae there ae a number of cor hat, f rue, woud ape o spo hereondens aeron at, deie e gnng o he 407, e dd no nend o abandon hisLR saus, but rahe inended to reu o a einquied domie n e ned Sae aer

a shor p o Canada oaby, e heng ranscpt n atemens om e resondensousel accompyng evdeniy submssons ndicae not oy ta he responden has eena LR snce 95, but ha he ha away mantaned a resdence n te Uned Sae, a heow ropery n he Ued Saes, incudng a ome in lorda, land n New Yok, da bnes n New or, at e as aiy n he Uned Sae, and a he te aped oecome a naurazed Uned Sae cien, ncudng n 2006 (Tr a 113, 2122, 3 Uaredevdenty bmission daed May 22, 22) He also asser hat he wa smpy ving hsCanadian wfe r a w day at her home n 2009, d away nended o e o h oe norda hory ereaer ( a 35)

s conderaon of he veracy and mor of these serion nvolve tnding, we nd aroprae o remand ths maer to the graon Judge o asess hese cors, d oreevauae he ue of whether, under he oa of he crcmaes, the eponden hadoned s LR saus ee CFR § 3 (d)3 )(v) povdng , ube ernexcepons no appcabe o he resen cae, the Board w no engage n facndng n hecouse of decidng apeas) so dong, te graton Judge shoud consder the addonaevdence e reonden a sbed on aeal, ad shod alow he es o oe addonaargment and evdene




.

A039 091 797

ordingl, e llowing order will e enered

ER e rerd remanded o e mmigraion dge r rer roeedngoien wih he regong oinon and r e enr of a ne deiion

3




UNITED STATES DEPARTENT OF JUSTCE

EXECUTIVE OFFICE FOR IGRATON REIEW

UNITE STATES RATION CORT

BUFFAO, E YORK

Fle: A039-091-797 October 18, 202

n the atte of

OTILALL PERSAU REOVAL PROCEEIS

RESPONDENT

CHARGES:

APPCATIOS:

(a) 7 A i of te mgaton and

Natonalty Act as aended nasuch as te

respondent s chaged as an mgant who at the

te of appcato fo adsson was not n

possesson of a vald unexpred gant vsa

eenty pemt borde cossng card o other

vad enty docuent equed by the Act and a

vad unexped passport o othe sutabe tave docuent o docuent of dentity and natonaty

as equed unde te eguatons ssued by the

Attoney enea unde Secton 21a of the Act

ON BEAF OF RESPONDENT: AE FARABEE

ON BEHALF OF HS: DENISE C. OCU

ORA DCSO O TE IRATION UDGE

The espondent s a 66-yea-old ale natve and

ctzen of uyana who as adtted paagaphs 2 and 3 of the



Noice o Appea Februar 20 and dened paagaph 4 a d

. 5 wa ef bland a d theefore the Cou will preue ha

he alo dened ha a wel bu even gve he o favorable

consrucion o he eonde t he Cou wou fnd ha he ha

abandoned h lawful pea e eie tau and he Cou

will explan reao wh

The respondent eiie aong ohe hing on

dec exainaon ha i 995 he becae a awful peanen

esent and ved n Quee s New York fo a few ear wih hi

US cien aughe accordin o what he eifed o He

ha been maed four o ve ear accodng o h emon

and i aed to a Canadia ce ha woked in he uckng

bue o d wok in he ucking bui es according o h

eon and a o had a furniure oe wou d be hard o

iagne a peron being a busiea and o be g abe o read

o wte o undesand he docuen ha one is called uon

fro me o e o gn bu aside o hat he espode

connued wh hi eion and tated ha he wen back and

forh o Canada and afe aring n Canaa he obane

au hee a a eden a d ad a eidence n Ca ada as

wel. He ao clai to have ed U S coe tax reu bu

he Cour obeved ha none are sgned and all appea o have

been ackdated. a s te ones a e respndent has

ube o he Cour The repo en alo caed he gned a

form a he ime of being a he borde which becae known a

A039-09797 2 Ocobe 8 202



an I4 0, and dd so on September 15, 009, at Detrot,

Mhgan Respondent lams that he dd not gve up hs

resdene, hoever, and sates he told he offers tha he

ved n era, no Canada He also ams he dd no no

ha he as sgnng, tha he dd no gve up hs rghs, and he

ams he dd so thnng he as gong o a funeral He further

saed tha t as no hs nenton o renqush hs

resdeny, and he lams he got the ax returns, as se forth

heren above n hs tesmony referred o by the Cour earer,

from hs aountan, bt does no have he orgnals or e

opes of them.

The Court nqured at ths paruar jnture or a

abot hat tme hether or no frther nqury as made to the

Interna Revenue Serve, gven the fa ha hey do keep

reords gong bak ha far, b he or has no been favored

h them. He also lams hat he as ataras, and had

srgery earer ths year, and has famy n Guyana, and hat he

e fled an applaon for naurazaton, and fed he

frst one sx years ago, and dd so aferard as el, b as

no suessfu He ams he ould not read, but he dd ae

ou a naralzaon appaton. He managed to do tha

On frher nqry n rossexamnaon, he testfed

ha i 2006 he applied fo aualizaio, bu "did'

reember" ha dae th referene to he dae of hs marrage

n 005 He also saed on ross-examnaon he beame a landed

039091797 3 Otober 18, 01



immigant 00, but says e nt emember. " gan, those

ors int remember hen he fe out a aturalaton

appiation He aso testifie that e has been marie te

an is st maie to a oma n Caaa, a laims he i not

o e a given up is ights, eve thoug he sgne te fom

n questo hih as eeive as Governments xhbit 2, an in

partular, the -4 0, an he ent o to state that he not

unestan hat te Immgatio offie as saing He aso

testifie an sai tat the offe put an "X on the fom hee

he as to sign Cose examnation of te I-4 0 iiates tee

is no X Thee is a X ext to te sgnatue on te NT, but

tere is no X on te I-4 07. The Cout fis tat testimon to

be omplete isingenuous an fase n aso, he put his

iitias on te I4 07 He amits that So there is onfting

testimony That oes not ome o i favo of te esponent

in terms of is eibiity, te Cout paenthetially as, but

ontnuing on th his testimony, he as st mare to hs

ife in Caaa, an as bee marie for seven ears, an as

ot even state ivore poeeings. If he ere living i te

Unite States of meia, a in partuar, i Kissimmee,

lora, all one nees is six monts of ontinuous resien

there to file a petton fo issolution of maiage He has

n e . h s e ore t tha s nvine he

Court that te respoents estmoy s not genue, a e s

being sngenuous, an is not reible He oul have file

03909197 4 Otober 18, 01



tat dvore petton n e or o Florda, ad f he as een

lvng lorda for as long as he says he has een, tat tme

ould have ome and gone a long tme ago, t e dd not, so te

presmpton s that he s stll marred to a oman n Canada and

stll retans sustantal ontats and onnetons th Canada,

addton to many oter tngs.

rthermore, on s natralzaton applaton n 06

he as ased f he as marred, and e sad, sngle " Well,

that as a false statement hat fators to the overal

elevalt of the respondent as el. t s st one more

pee to determe ether or not te totalty of the

rmstanes lead to a onluson, h n ts ase sos

that he s not redle or elevale Furtemore, e agan

lamed e as marred, t en son the natralzaton

applaton, he fnall admtted he as not sngle, t agan,

only after vgoros rossexamnaton ad repeated qestons dd

the respondent, and ten ontned t dssemle and as evasve

and nresponsve hen ased questons regardng hs status

On anoter form, he sed the ord, none, hen ased

f marred, and n effet, stated e ne he as requred to

tell te trut and dd not Puttng togeter on tng after

anoter, tat leads to one logal onlso, and that s, te

esponden ws no cedile n is esmony

e dd testfy on redret examnaton aot s

eyesght, t tere s no evdene at the tme tat he sgned

A39-091797 5 Otoer 8 1



this particular document that he was uabe to read or write or

uderstand the cotets of what it was he siged. Now going

back to te I- and tere was a record of sworn statement by

the way that te resondet aso gave it states o there at

paragrah 6A I o onger lie ere ad have ot for the last

two years ad there is a iitia MP. e resondet said

those were his iitials. Tere is o testioy that an oficer

force hi to o tis. fid it was knowingly signe

iteligenty siged a voutariy siged and I do ot see

aywhere I see te sigature of te aie ad the date 5-

Tere is no X ext to is sigature were the officer woud

have suggested that tat is wat he ha to sig or was comele

o sig it. On te next page I o ot see a X ether next to

is signature e says we tere is a itte dot We I

do not see a itte dot there An if you ook at te curicue

on the way he signs his ame tat is orma a atural

especiay we you ook at te NTA ad ake a sie-by-sie

anaysis an compariso betwee te two. There there was

ceary an X You can see that X But he has a oop at the

eginning of the M in sigig his nae. That is exacty what

aears on te I-. There was o dot there was no X tere

was o suggestion that e sig tis or was mise into sigig

Te Cot no eard an onvnng eence o f that.

Now the esones estimony here today ad the

ourt must make a tresod iding as to credibility and te

A9-79 6 October 22



ou also has to dtmin on's dmano, cado, o

sosiss and h ih ausibilit of th aican's

account h consisncy btwn h alica's win and

oal stams, wihot ad o whth a iconsistcy os

to th ha of an aican's caim bu aso, do no want to

a ou h fact ha h is a cod of swo samnt

h wo knowinly sid ha n mad an amn

hat i was focd uon him o ha h did not kowin

inllny, and ounaiy i tha swo samn

On of h his Juds und th REAL I Act a

mid o do is o dtmi a son's dmao duin th

hain in assssin cdibiliy Vaunss and asinss of

on in oidin simon is a faco. Th ou os back

also o h cod of swo samnt tha h sondn a,

ad cal h was askd as h Gonmnt cocy oind

ou qstion, whn did ou mo to Canada? Asw abot th

as ao whn I ot n cad fo aada ll th ou

finds ha h sondn's tsimoy was no cdib and

in h umous incosiscis in his stimony ha ha

no bn saisfactoiy concid, no o mnio his

conficin and asi simon th ot cocuds hat th

sodnt's ax tns aso w backdad o mak i aa

tat wa wokn a ica snt i ntd

Sats, which cod ha bn usd as a indicia hat was i

h Unitd Stats and wokin and doin so coninuousl ad

A039-091-9 Octob 18 202





residen staus. heefoe the Cor fids a e is

iadmissibe acodig o 2a { (A} {i) ). he Co finds

that the Govenet has cared is brden of poof b cea,

conicin, an eqivocal eviece ccordi, e

espode is hereby fond o be inadmissible i to the Unied

Saes pursa to 1(a) 7 {)(i and ins ha he has

abadone is awf peae esidet saus

039-0997

PHILP J. MONTANE JR

Imigation dge

9 October 18, 202



/Isl

Imigraton Judge PHILP J. MONTANTE JR

onanp on Janary 14, 203 a 3:04 PM GMT

A09-09-77 0 Ocobr 8 202

Documents

Motilall Persaud, A039 091 797 (BIA Feb. 6, 2015)