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8/20/2019 Tenisini Taufalele, A200 673 398 (BIA Feb. 5, 2016)
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Trupiano Kimberly JoTrupiano Law P.C. 5525 South 90 East, Suite 110Salt Lake City UT 84117
Nae: TAUFALELE TENISINI
U.S. Departmen of Justice
Executive Ofce r Imgaon Review
Board of Immig aton ApealsOce of h Clk
5107 leesburg Pik, St 000F'/ Chc Vna 204
DHS/ICE Office of Chief Counsel - SLC 2975 Decker Lake Dr Stop CWest Valle Cit, UT 8119
A 200673398
Date of this notice 2/5/2016
Enclosed s a copy o he Boad's decsio ad order in te above-eeeced case.
closue
Panel Membrs:uy, Rog
Sceely,
Dc C£Doa CarChe ek
Usetea Dck
For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/
I i g a t & e
u g e e A p p e a t e C e
t e , C
i
a c e t
Cite as: Tenisini Taufalele A200 673 398 (BIA Feb 5 2016)
8/20/2019 Tenisini Taufalele, A200 673 398 (BIA Feb. 5, 2016)
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U.S. Departmnt of JusticeExecutiveDce r Immgraton Reew
Fa Cuc, Vra 22041
Fie: A200 673 98 - Wes Vaey Ciy, T
ecson of the Boad of mmgaon Appeal
Date
n re ENI AALEE aka Haaoa Fakaouma aka aata Mana akuouma
N REMOVAL PROCEEING
APPEAL AN MOO
ON BEHAL O RPONN Kimbery J Trupia, Eqre
CHRGE
Nice ec 237(a)(l)(B), & A [8 § 127(a)()(B)] n he ted aes i voaton of aw (cceded)
PPLCATO djume f saus; vouy depaure; remad
he respode appeas m the mmigrao udge' eember 16, 204, deiso, deynghs appicaio r adusme of stas uder secti 245(a) he mmgrao ad aioay, 8 C § 55(a), r iure esabsh prma cie egibiy, ad deyig hisateave appato r vtry depaure uder sei 240B(b) of he Ac, 8 C§ 29(), bsed o nuet evdee f gd mra chracter Durig he pedecy of thisappea he respode ed a mti, syed as a mo t repe, aegg eectveassstace of cse and requetng remad he recrd he Deparme f Homeand
ecriy (H) h o responded he record wi be remaded r her prceedigsosise h his decisi
We revew dgs f t, udg crediby dig, r er eror See CR§ 3l(d)(3)(i) see also Mter of JY-C 4 &N Dec 60 (BA 20) Matter of SH-,2 & ec 46 (BA 002) We revie qests f aw, discreio, or jdgme, ad alther sued de v See 8 CFR § 00 l(d)(3)(i)
he wig s re t i dispue he respodent a nave d tze o Tga,eered he ned aes as a mmgra visir ad remaned nger ha auhrzed(J a 23 Tr a 4; xh ) He i he eery a apprved Aie Reaive Pe
(Fm 10) ed o his behaf by hs ied aes ize w (J a ; r a 4) a heighed i 2013, he respde diaed his ie o appy r adjusme of stats pursua ose 45a he ased e arve visa e (IJ. a r a emmgratio Jdge shedued a a earg he resde's adsmet appat reptemer 15, 04 (J a ; r a 45, 7)
At he respodes epember 15, 2014, hearig, hs hecuse requeed a ciucebecase he adjtme apato w impee he ngeprts and medca examnai ad expired a e adavt suppor r the spor nd ot pos wee deetJ a r a 0) See eos (a)(l), (2), d (4) f he ct, 8 §§ 52(a)(),(), (4 (ug heahrelaed, cmia, d pbc harge grunds admssib)
Cite as: Tenisini Taufalele, A200 673 398 (BIA Feb. 5, 2016)
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A00 67 398
Ovr th DHSs objctio, th Immigation Judg continud te rspondnt's cas utiDcmbr 16, 214 IJ at 4; Tr 19, 21). Howvr, at th ecmbr 2014 arng, problemspersistd with te sucincy o te davits o suppot (IJ t 4; Tr at 23-27). Themmigration Judg decind to tr cotinu proceedings a inst concludd tt trsponnt d not stablisd is stattoy eigibiity fr adustmnt o stus (.J. t 4;Tr. at 27) mmigration Judge aso dd the rspont's att requst r voluntryparr on good mora crctr grounds (J t 8) See sctio 240B(b()(B) o th Act see also sction ( o th Act, 8 USC. § ( (dng good mora chractr)
O appa, te rspodnt lgs tat hs ibiiy to dmonstrat prma ci igibiliy frdustment o status and voluntar dpartur was due to t ictiv ssistanc o his prioratoy (Rsp ri t 2; Resp. Motion to Ropen at 2-5). Tis is ssntiay rqust frrma, with requirmts simir to thos fr ropnig See 8 C.FR § 32(c);Mater of Coelho 20 & Dc. 464, 4 71-73 (I 992) Gnray, such motion w ot bgrat nless it stats w and mtrial cts, is suppod by adavits or otr videntiy
matr, d stabiss a prima ci cas o stautoy a discrtionay ligibiliy fr thundryig ri sougt See CF. § 323(b)(3); see also INS v. Doer 52 US 314(1992); aatougui v. Holder 73 F.3d 1230, 124-4 (1th Cir 23) corming tat amotion to ropn soul be suppod by nw vienc stbising a prima cie claim tori; Osei v. INS, 305 F .3d 1205, 1208-09 (10t Cir 2002) Matter of Coelho supra.
In suppo o remad, th rspont s complid wit th procdurlrequirmnts rticulatd in Mer of Lozaa 19 &N Dc 63 7 (B 1988); see also Ose v INS
supra at 129 2. Th respondnt d stte bar complaint aginst s frmr tey,advisd te frmr attoy o t agtios aginst im, nd submitd a motion supportd byan adavit dtiling how attoys prfrmac was dcint nd impactd t
respodnts cse
Spcical, t rspondnt egs tt his frmr counsel di ot prpe him fr thring, dd ot requst that is wi l er taxs, impropry recordd infrmtion o thdavit o suppor, nd did ot nsu that th joint sponsor's advit ws duy xcutd orsuppotd by proo o is Unite Stts citizeship, rsultig in e Immition Judgsconclusion tat th respondnt coud not ovrcom t pubic carg ground in quaiing frdjustment o sttus (Rsp Motion to Reopen at 7-8, Tabs 41-46; Tr at 17-18, 20, 2427).See sectio 22()(4) o t Act sction 213A o t Act, 8 U.S.C § 183a (outlning thstautory rquirments fr the adavit o suppor) 8 C.FR §§ 13.a))(i)), ii), (v),(b)), c))(i)C), c)(2), (ii) (fr the various rquirmnts rat to proper xcution t
advit o suppo wo may t davit o suppo, nd te vince requird todmostrt sucint incom i suppot o te advit) Wit is motio, t rspondnt asoincludd a tr om a accountat stating that th accoutant is working t te rspondnt's o r c s Rs oio o op b spot so as was preuicd whn is oy did ot prpar im fr qustionig about his 2 st, adtat umrous amily mmbrs woud av tstied o is bhal as to is good mora crctri ty ad be sed to do soctors rlevt to th mmigration Jug's denia o voluntarydpaur fr c o good morl charactr (Rsp oio to opn at Tbs 5, 6 7, , 2 1416, 8, 20, 22 J t 68; Tr. t 21) See sction 24b))(B) o t Act
2
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A00 67 398
We n that reman is arate the terests o ustice. The respoet hasemostrated tat he was prejuice by hs fmer counsels lack o prepaaio acommuncato th e respondet Se 8 F.R. §§ 103.102() (r) (requrg a attoeybefre the Immigration Cout to aequately prepare fr all proceegs a maitan
commucation ith the respoen); Maer of Assaad, 23 & Dec. 553 (BIA 2003)Maer of B-B 22 & Dec 309 311 (BA 1998) Maer of Lozaa supra, at 640ee alo Ochieng v. Mukaey 520 F.3 1110 1115 (10th Cr. 2008) (requrg the respoet toemostrate prejuce orer to estabish ieectie assisace o cousel arratig rema).Here fr istace the respoets por cousel: (1) i ot aequately frm hm o theocmets requre to preset a sucient aait o support een aer cen ececiesere iene b the Immaio Juge (2) i ot prepae hm fr questios he migh beaske about hs criminal history i qualyig fr volutar epatue; an (3) opelyackolege the aait o support was ecent {Tr. at 1721, 25-27; Resp Moton toReope at 3146). oreover pror cosel proere o persuasive evece o rebut theeectie assistace claim ee though the attoey as otie o the respoe's
allegatons Ma o the etie erors pror cousel's perormace hae been rectie bycuret cousel. Notthstag the regog we express o opio as to the ultimae mertso the respoet's applications fr relie. lght o o isposito o this matter we ecle toadress the respodet's assetos o appeal that the recor as t was costited befre emmigratio Juge suppote a grant o ajustmet o stus or oluay epartre.
Upo remand the pates will have an oppoty to supplement the recor ith yocumentao or testmoy the ma choose to peset relevt to the responetsapplcatos fr relie. Howeer we rem the respoet an his cousel tha he sresposble fr presenng a complete applicato fr rele supporte by te requsiteocumetry eece Failre to llow this stction a a recties issued by the
mmigratio Judge ay result i a dig that he is statutorily eligble r ay requeste frso relie See, e.g Maer of IteraoRos 25 &N Dec. 264 266 (BIA 2010).
Accorigly the fllowig orer is etere
ORDER The recor s remae fr ther proceeigs cosistent ith this decso anfr the etry o a e ecisio.
3
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UNITED SATES DEPARTMENT OF JUSTCEEXECUTVE OFFCE FOR MMGRATON REVEW
UNED SAES MMGRAON COUR
WES VALLEY CY, UTAH
Fie: A200-673398 December 16 2014
n the Matter of
TENSNI AUALELE
RESPONDENT
))))
N EMOVAL POCEEDNGS
CARGE Sectio 237(a)(1)() of the mmigratio ad Nationality Act (Act) asameded i that after admissio as a oimmigrat therespodet remaied the Uited States for a time oger thanpermitted i vioation of the Act or ay other law of the UitedStates.
APPLCATONS Section 25 of the Act - adjustment of status; Section 240 of the
Act - voluntary depature
ON BEHALF OF RESPONDEN GAGE HERBS Esquire660 South 200 ast Suite 402Salt Lake City Utah 84111
ON BEHAF OF HS MND E HOEPPNER Assistat Chief Couse295 South Decker Lake Drve West Vaey Cty Utah 84119
OAL DECSON AND ODER OF TE MMGAON UDGE
The respodet is a 35ear-od married mae ative ad ctize of oga he
Department of omelad Securty issued a Notce to Appear dated June 22 2010
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.�
aegng that the respondent was admtte to te Unted States at Honouu awai, on
or about March 30, 2007, as a nonmmgrant 2 vstor wth authorzaton to eman n
the Unte States for a temporar perod not to excee September 29 2007 Homeand
Securty further aege that te respondent remaned n the Unted States beond
September 29 2007 wtout authorzaton from the Immgraton an aturazaton
Servce or ts successor the Department of omeand Securty omean Securt
charged the respondent wth removabty under Secton 237(a)(1)() of the Act
The respondent through counse amtted a of the factua aegatons set orth
n the Notce to Appear He thereore agreed that he was permtted to reman n te
nted States fr just sx months as a vstor n awa Later the Court receved a copy
of the vsa tat the respondent used to enter the nte States an t specfca imited
the purpose of the responet's vst to the ted States for partcpato n a canoeng
event n Hawa Responent agreed tat he came to the Unted States to partcpate n
a canoe race, but ecded that he d not want to go back to Tonga and wante to sta
nse te Unted States e testfed that hs cousn was n Kona Hawa where the
race took pace. The responent ecded to reocate to Utah and transported hs
cousn's waet wth hm from Hawa to tah The waet ncuded the cousn's dentty
card When te respondent was ater arreste n 2010 poce found one and ony one,
dentt document on the respondent Years aer he took te entt ocument from
Hawa the poce un te cousn etty ocument on te responents person
Te respondent aserted that he accdentaly took te cousns waet when he e
Hawa n 2007 fr Utah e kept the waet for years and asseed that he use t to
ore own as and never reurned he deny car to hs cousn n Hawa because
he d not have s cousn's adress
The respondent was charged wt removabty under Secton 237(a)(1)() of the
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�-.
Ac Respode coceded ha charge herere, he Immigraio Judge susaied
he charge of removab he respode designaed oga as he cour of
remova ad oga was dreced
Aer he respode reocaed o ah he respode marred a cze of he
ied Saes. Befre marrig he ciize, respode had o have firs dvorced hs
oga wife Respode had lef behd Toga his wife ad wo chidren reocaed
o Uah sred a chd wih hs ewfoud reaionshp in ah ad was o abe o mar
hs secod wfe u he frs procured a dvorce from hs frs wfe. Aer he respode
acheved ha he respodes .S czen wfe fed a Form 130 peo whch was
aer approved
he respode was paced i Immigraio Cour remova proceedgs i 200
foowg his arres a a bar i Sa Lake C ah Respode was accused of
sexual assag a umber of wome a he bar hose charges were dsmssed i
Sae ourt bu he accusaos resued .S Immgraio dng he respode
side he ied Saes havig oversaed his ours vsa for ears.
I hese remova proceedgs he respode sough adjusme of saus uder
Secion 245 of he Ac ad voar deparre i he aeraive he respode
prepared hs adusme of saus appicao on Form -485 i 2011 ad se a cop of
o he exas Service Ceer pursua o he bomercs srucios he respodes
S cze sposes peo for he respode was approved March 30 20, over
hree ad a haf ears ago. O Sepember 8, 2013, he Cour schedued he maer fra hearig o he adjusme of saus applicaio Sepember 5 2014. herefore he
respodet ad over ree years o prepare ad submi a documes ecessar for
adusmen of saus sde he ed Saes folowg approva of e wifes 30
peio. hs wold cude he wfe's adav of sppor as se s he sponso fr the
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adjustment of status application ad, the stant matte a cosposo's adavit of
support. The respondent was given notce o oe yea that the appcation would be
adjudicated September 15 2014
Atough the respondent had years to prepare to preset his adjustment of status
appicatio the respondent was not prepared on September 15 2014 even though he
had a yeas otice that the Court would be hearg the case that aenoon Te
respondents fgepts ad exped he needed to submit new medicals the ada
o suppot was insuciet and te joit sposor did not ave the income tax returns
iled for the cosposors adat o suppot Te espondet requested a cotnuace
so that he could ave additional time to pepare At that point because the espodet's
case was our eas old and because the espodet had ampe oppounty to meet the
documentary requiements o adjustment of status Homelad Securty opposed any
uther continuances Nevertheless oer Homead Securts oppostion te Cou
gated te respodents motio to cotue ad gave the espodet an addtioal
three moths to pepare The matte was scheduled for adjustment of status merts
December 16 20
On that date espondent sti dd not have suicent documetatio o the wfes
aidait of suppot or fr the cosponsors aidavt o suppot Te rspodet
requested a continuance so that he could bing in documents that would be suicient for
the afidavits of support Homelad Secuity aga opposed a cotiuance and because
the espodet had bee gve yeas and multiple contiuancs to pepare the motion
was denied
Bcaus h aiav suor rom the sponsor ad cosposo are isuiciet
the Court is unable to grant adjustment of status.
Respondent applied fr voluntary depatue n te alteative More tha 30 da
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followg a Mate Calenda fo whch the mets date wa et has elaped Theefoe
we ae at the concluio of poceeding fo volutary depatue pupoe Pe
cocluio voluntay depatue i oly avalable at thi tage if the Depatmet of
Homelad Secuity tipulate to pecocluio volutay depaue The Departmet of
Homeland Secuity wa ot i a poitio to do that Theefoe at the coclusio of
thee poceedg oly cocluio volutay depatue wa available
To qualify fo voluntay depatue unde Secto 2408 of the Act epodet
mut etalih that he has been physcally peet i the Uited State fo a peiod of at
eat oe yea mmediately pecedg the date that the Notce to Appea was erved
Repodet mut ao etablish that he has bee a peo of good moal chaacte fo
at leat fve yea mmediately pecedng the applicaton e mut etabish with clea
ad covicg evdece that he has the means to depart the ited State ad ited
to do o e hall be equied to post a voluntay depaue bond e mut be
possesso of a tavel documet that wll aue his lawful eety ito h home
country.
Dcetionay codeation of a application fo volutay departue involves a
wegh of factos cluding the epondet' po Immgatio htory, the length of
h edecy inde the United State ad the extet of h faly buiess ad ocieta
ties to the ited State
the itat mate the epodet tetified peuaivel about his itetion to
depat the Uited State ad h ability to do o He alo pesuaded the Cou though
h tetimoy that he would be able to post a volutary depatue bod
GOOD OAL HAAE
Concluion volutay deparue equie that the epondet ha bee a peso
of good moal chaacte fo at leat five yea immedately pecedig the applica
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Theefoe the respondent must estabish good moal character fro ecember of 2009
to the pesent The Court is unable to fnd that the respondent has et that buden
The Cout refes the eade of this decision to Exhibts 2 3 5 and 8 in the Record
o Poceedngs These documents nclude police eports and conviction records n the
relatively sho tie that the espondent has been inside the nited States he has been
arrested more than once In 201O the espondent was a egular paton o a ba n Salt
Lake City. Respondent testified that he was a egula paton o this ba He was
accused of sexualy assaulting a numbe of women Those State Cout chages were
dropped
oweve, the Cou notes that when the espondent was arested at the bar he
was found to have one and only one identity document on his person a Hawaii
dentfcaton card nang someone ese he responent testifed that that peson is
his cousn He attempted to persuade the Cour that he obtane that identity docuent
by accdent when travelng fro Hawaii to tah in 2007 Respondent ist arived in the
United States in Kona awaii to participate in a canoe ace There was hs cousin in
Kona Respondent asseted that when he was about to trave fro Hawaii to Utah his
osns walet was fo soe eason on hs lggage and the responent accidentaly
took the wallet and taveled with the identity cad fom Hawaii to Utah years ago in
2007
The espondent has had years to retun that identity docuent to Hawaii and to
the beaer of that docuent Respondent asseed that he was unabe to do so fo
yeas because he dd not have hs cosn's aess he espondent asseted that he
not use te oument t persuae othes that that was hs ientity that he
happened to have the docuent on his peson when he was arrested at the bar The
Cout was not persuaded by this testimony Respondent had on hs person soe
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ee's detity document He possessed that documet for year at a time whe he dd
ot have permio from the US Goverment to be nide the United States
Respodets decson to keep someone ese docmet a docmet that was
geerated i Hawai, for year a negatve actor i aseng the repode t good
mora character from 2009 to the preset
Later n 2012 the respondet wa driving from the city of Murray Utah to the
respodets home a dferet cty i Utah The repodent had acoho in hs
ytem He panned to drive wthout a icese on a freeway from Murray Utah aer
vtng the bar to his home n Soth Jordan Utah Ths mconduct endangered the
ive ad property o other peope Fortuatey on thi occasion the Utah hghway patro
ecountered the repondent o a freeway onramp attempting to enter a highspeed
freeway He wa charged with drvng with acohol n hs ystem ad utimately
covcted by hi pea of guty to mpaired drving This mcoduct and convicton
another negative factor n asesing good mora character
Additioaly the repodent at a time when he wa married to a US citzen iedtaxes a a sige peron That way he woud ot be responibe fr the back taxes that
h wife owed to the US Government If he had ed marred fiing joity then he may
have been resposbe to the US Govern�et for those back taxes. Thi i another
negative factor
The Court dd conider positive factor The respodent abadoned his chidren
i Tonga to etabih a new ie in the United States wthout permsson from the US
Government Neveheess he tetied that he has sent money to his two chidren in
oga r thr educton ad ood h s a postve factor e ao curret y works
and upports his thrd chid that he ired inside the U ted State This is ao a poitive
actor Respode t aso currenty works and is abe to support his chidren with his
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cuent empoyment This is aso a positive facto
Consideing the positive and negatie actos and the totaity of cicumstances,
the Cout is unabe t in that the espondent is has been a peson of goo moa
chaacte inside the United States o the ast ive yeas. Theefoe the Court is unabe
to gant concusion voluntay depatue
ORDERS
T IS HEREBY ORDERED that the esponent's appication f adjustment o
status unde Section 245 of the Act be denie
IT IS HEREBY ORDERED that the espondents appication fo vountay
departue unde Section 240 of the Act be denied
IT IS HEREBY ORDERED that the espondent be emoved fom the nited
States and depoted to Tonga n the chage contained in the Notice to Appea
sgnature
A200673-398
Please ee the next page for electronic
DAVID C ANDERSONImmigation Judge
8 Decembe 16 2014
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/ I s l /
Imigrati on Judge DAV D C. NDERSON
andesda on Mach 2 0 , 20 15 at 2 : 37 PM GT
A200-673-398 9 December 1 6, 21 4
p p