. .

Bodhl, Maya, Esq.

Reza Athari & Associates, PLLC
6235 S. Pecos Road, Suite 109
Las Vegas, NV 89120
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike. Suite 2000
Fals Church, Vrinia 22041
OHS/ICE Ofice of Chief Counsel - LVG
3373 Pepper Lane
Las Vegas, NV 89120
Name: VILLANA BANUELOS, ERNE .. A 037-837-474
Date of this notice: 6/25/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Donovan, Teresa L.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Do CW
Donna Carr
Chief Clerk
yungc
Userteam: Docket
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Cite as: Ernesto Villazana-Banuelos, A037 837 474 (BIA June 25, 2013)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A037 837 474 - Las Vegas, NV
In re: ERNESTO VILLAZANA-BANUELOS
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Maya Bodhi, Esquire
ON BEHALF OF DHS: Peter Eitel
Assistant Chief Counsel
CHARGE:
Date:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] -
Present without being admitted or paoled
Lodged: Sec. 2 I 2(a)(6)(C)(i), I&N Act [8 U.S.C. 1l 82(a)(6)(C)(i)] -
Fraud or willfl misrepresentation of a material fct
Sec. 237(a)( l )(A), I&N Act [8 U.S.C. 1227(a)(l)(A)] -
JUN 2 5 2013
Inadmissible at time of entry or adjustment of status under section
2 l 2(a)(7)(A)(i)(I), I&N Act [8 U .S.C. 1182(a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document
APPLICATION: Terination
In a decision dated April 27, 2011, an Immigration Judge fund the respondent removable
under section 237(a)(l )(A) of the Immigration ad Nationality Act, 8 U.S.C. 1227(a)(l)(A), as
an alien who was inadmissible at the time of entry, and ordered him removed to Mexico. The
respondent appealed. The appeal will be sustained. The record will be remaded fr frther
proceedings consistent with this decision and the entr of a new order.
We review an Immigration Judge's fctual fndings, including the deterination of
credibility, fr clear error. 8 C.F.R. I 003. l(d)(3)(i). We review all remaining issues, including
issues oflaw, discretion, and judgent, de novo. 8 C.F.R. 1003.l{d)(3)(ii).
The Immigration Judge fund that "the respondent has filed to demonstrate on the basis of
this record of the Court that he did anything other than abandon his status" as a lawfl permanent
resident within the meaning of sections 101(a)(l 3) ad (27) of the Act, 8 U.S.C. l 10l(a)( l 3),
(27). The Immigration Judge concluded that the respondent was removable pursuant to section
237(a)(l )(A) of the Act as an alien inadmissible as an immigrant not in possession of a
immigrant visa pursuant to section 2 l 2(a)(7)(A)(i)(I) of the Act, 8 U.S.C. 1 l 82(a)(7)(A)(i)(l).
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Cite as: Ernesto Villazana-Banuelos, A037 837 474 (BIA June 25, 2013)
A037 837 474
It is undisputed that the respondent was admitted as an immigrant on or about November 9,
1982, and that he signed a Form 1-407 when he applied fr admission in March 1997. It is also
undisputed that the respondent was charged with voluntary manslaughter in Tehama County,
Califria, on October 28, 1998, in regard to an incident which occured on or about August 13,
1995. Those criminal charges were dismissed on November 30, 1998. OHS denied his
naturalization application on or about September 24, 2008.
On appeal, the respondent argues the Immigration Judge erred in fnding that Department of
Homeland Security (OHS) established by clear and convincing evidence that he abandoned his
lawfl permanent resident (LPR) status. Specifcally, he challenges the Immigration Judge's
adverse credibility determination. He also argues that because he did not understand the contents
of the 1-407 Form, it cannot be relied upon as evidence that he abandoned his LPR status. He
also asserts that when OHS placed an 1-551 stamp in his passport it acknowledged his LPR status.
A alien seeking admission to the United States is inadmissible under section 212(a)(7)(A)
of the Act, if he does not possess a valid immigrant visa, re-entry permit, or other valid entry
document. Section 21 l(b) of the Act, 8 U.S.C. 118l{b), provides a waiver of those
documentary requirements, and hence the section 212(a)(7)(A) ground of inadmissibility, fr any
alien who is a returng lawfl permanent resident as defned in section 101(a)(27)(A) of the Act.
A returing resident is "an immigrant, lawflly admitted fr permanent residence, who is
retuing fom a temporary visit abroad." See section l 0l(a)(27)(A) of the Act. We have held
that in order to qualify as a retuing resident alien, an alien must have acquired lawfl
permanent resident status in accordance with our laws, must have retained that status fom the
time he or she acquired it, and must be reting to an unrelinquished lawfl permanent
residence afer a temporary visit abroad. See Khodagholian v. Ashcroft, 335 F.3d I 003, 1006
(9th Cir. 2003); Singh v. Reno, 113 F .3d 1512, 1514 (9th Cir. 1997); Matter of Huang, 19 l&N
Dec. 749, 754 (BIA 1988); Matter of Kane, 15 l&N Dec. 258, 264 (BIA 1975).
Bot the Board and the courts have considered the issue of what constitutes a "temporary
visit abroad." The term is not defned by statute or regulation and varies in application
depending upon the fcts and circumstances of each particular case. Chavez-Ramirez v INS,
792 F.2d 932 (9th Cir. 1986). What is a temporary visit cannot be defned in terms of elapsed
time alone. Rather, the intention of the alien, when it can be ascertained, will control. We have
in the past ascertained an alien's intention by examining such fctors as the alien's purpose fr
departing the United States; the location of the alien's family, property, employment or actual
home; and the existence of a fxed termination date fr visit abroad. Matter of Huang, supra;
Singh v. Reno, supra.
It is well-established that once an alien has a colorable claim as a returing resident, as in this
case, the DHS bears the burden of establishing by "clear, unequivocal and convincing evidence"
that the alien's status has changed. See Khodagho/ian v
.
Ashcrof, supra; Singh v
.
Reno, supra;
Matter of Huang, supra; Matter of Kane, supra.
On de novo review, we disagree with the Immigration Judge's conclusion that the respondent
abandoned his LPR status ad is thus removable under section 237(a)(l)(A) of the Act. First, the
Immigation Judge improperly placed the burden of proof on the respondent to establish that he
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Cite as: Ernesto Villazana-Banuelos, A037 837 474 (BIA June 25, 2013)
A037 837 474
did not abandon his LPR status (l.J. at 14). As stated, the burden of proof is on the DHS to
establish by clea and convincing evidence that the respondent abandoned his LPR stats.
Second, the Immigration Judge's adverse credibility deterination is clearly erroneous. The
Immigation Judge fund the responent evasive because he repeatedly said he did not
understand. But as the respondent explains on appeal, he was responding to questions about his
1997 application fr admission which was conducted in English, a language he did not
understand. See Respondent's Brief at 11. The Immigration Judge fulted the respondent fr
repeatedly stating that he did not remember. However, the transcript reveals that he was
responding to the DHS attorey's questions asking him "do you remember ... " (Tr. at 82-83).
The Immigration Judge speculated about the timing of the fling of the respondent's
naturalization application (l.J. at 12). See Respondent's Bref at 12. Finally, the Immigation
Judge seemed to have determined the respondent abandoned his LPR status before the
respondent testifed (Tr. at 52-53). See Respondent's Brief at 11. Accordingly, we will credit
the respondent's testimony.
Third, we disagree with the Immigration Judge's determination that the respondent
abandoned his LPR status because the respondent siged the For 1-407. On remand, the
Immigration Judge should make fctual fndings regarding the respondent's allegation that he
was interiewed in English and the frm was written in English, a language he did not
understand.
Fourth, the Immigration Judge erred in fnding that the respondent was given ''temporary
admission as a permanent resident to the United States fom August 22, 2008 until
October 21, 2008 by USCIS," as alleged by DHS on Form I-261 (Additional Charges of
Inadmissibility/Deportability)(Exh. 5). A 1-551 stamp is not a temporary admission as an LPR
(Tr. at 48-49; Exh. 6). See Respondent's Brief at 14. On remand, the parties will have the
opportunity to address the efect, if any, of the DHS's 2008 issuance of the 1-551 stamp on the
respondent's status.
In sum, the record will be remanded fr frther fct-fnding including a determination as to
the signifcance of the I-551 stamp. The Immigration Judge shall deterine whether the DHS
established by clear and convincing evidence that the respondent abandoned his status as an LPR
and is removable under the Act. Accordingly, the fllowing orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded fr further proceedings consistent with the
above decision and the entry of a new decision.
FOR THE BOAR
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Cite as: Ernesto Villazana-Banuelos, A037 837 474 (BIA June 25, 2013)

l
.}
DEPARTMENT OF JUSfCE
EXECUTIVE OFFICE FOR
IMMIGRATION REIE
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRTION COURT
JUL 1 9 2011
US IMMIGRATION COURT
LS VEG, NV
Las Vegas, Nevada
File No. : A 037 837 474
In the Matter of
ERNESTO VILLAZANA-BANUELOS
Respondent
)
)
)
)
)
Date: April 27, 2011
IN REMOVAL PROCEEDINGS
CHARGE: Sections 237 {a) (1) {A) and 212 {a) (7) {A) {i) {I) of
the Immigration and Nationality Act of 1952, as
amended {the Act) .
APPLICATIONS:
ON BEHALF OF RESPONDENT:
Mya Bodhi, Esquire
6235 South Acres Road, Suite 109
Las Veg as, N 89120
ON BEHALF OF DHS:
Peter F. Eitel, Esquire
Assistant Chief Counsel - ICE
Las Veg as, N 89120
OR DECISION OF THE IMIGRTION JGE1
I. Background
The respondent is a 51-year-old married male, native and
citizen of Mexico. He was pl aced in removal proceedings on March
25, 2009, with the issuance of certified reg ular mail of a Notice
to Appear al l eging that he arrived in the United States at an
The Lionbridge Spanish interpreter for the merits hearing today was Victor
C. Evans. Neither party nor the Court questioned the gentleman's competency
or the accuracy of his interpretations.
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unknown place at an unknown date after March 23, 1997, without
being admitted or paroled after inspection by an Immigration
officer, in violation of Section 212(a} {6} (A} (i} of the Act. See
Exhibit 1.
At a Master Calendar hearing conducted on May 12, 2009,
throug h counsel, respondent denied factual allegations 3 and 4 in
that NTA and the charg e.
The Court then schedul ed a contested hearing for June 16,
2009.
At that hearing it was unnecessary to further reset the
merit because counsel of the respondent arg ued that in 2008 the
respondent was admitted to the United States as a returning
lawful permanent resident, whereas counsel for DHS stated that
the respondent was charged under removal proceedings and,
therefore, respondent is subject to these proceeding s.
It was ag reed that the l eg al issues initially were factual
issues reg arding the departures and returns on the respondent
from approximatel y 1995 to his most recent entry. Both counsels
requested that the Court set the matter out for additional fact
finding and legal research. The Court then set it to August 11,
2009 at 8: 30. There was no filing deadline, but counsel for DHS
indicated he was having probl ems g etting the conviction
documents, requested additional time, so it was reset at the
request of both counsel until September 16, 2010.
A 037 837 474
2 April 27, 2011
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September 16, 2010, counsel for DHS submitted reasons why
the respondent reportedly left the United States in approximately
1995 and returned then approximately 1997, apparently arguing
that respondent feared being accused of murdering someone in 1995
in California.
It was then noted that on March 23, 1997 the respondent
attempted to enter the United States, and he was found to have
abandoned his lawful permanent resident status based upon the I-
407 he executed and then he returned to Mexico. Counsel for the
respondent requested more time to further explore the matter. It
was then reset to October 6, 2010 at 1 p. m. for an I-261 which
removed the original entered without inspection charge and
substituted Section 212(a} (7) (A} and a 212(a} (6) (C} charge under
the Act. This was followed by a contested hearing on December
17, 2010 at 11: 00.
At that hearing on December 17, 2010, both counsel requested
that the Court reset the matter as counsel for OHS had just
learned of the existence of a passport issued to the respondent
showing that he was admitted as a returning lawful permanent
resident, and he requested time to investigate the matter for the
benefit of both parties.
The Court then reset the matter until April 27, 2011 at 1
p. m. for two hours to address the I-261 dated September 20, 2010,
Exhibit 1-A, and subsequent I-261 at Exhibit s dated April 20,
A 037 837 474 3
April 27, 2011
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2011 .
In any event, on April 27 , 201 1 additional exhibits were
produced and all the exhibits will be identified in Part II of
this oral decision. However, it should be noted that because of
the nature of this hearing it was necessary for the Court to
dictate an oral decision from which decision counsel for the
respondent has reserved appeal, whereas, DHS counsel has waived
appeal.
Again, the oral decision followed shortly after the hearing
entered this afternoon.
II. Testimony and Other Evidence
At the hearing today the Court addressed the admissibility
of a total of five and subsequently six exhibits, as follows:
Exhibit 1 , the original Notice to Appear issued on March 25,
2009, and served by regular mail on counsel for the respondent
and the respondent on that date, admitted; Exhibit No. 1 -A, an
I-261 dated September 22, 2010, in which a substituted list of
factual allegations 3 through 9 were provided and a
212(a} (6) (C) (i} charge, at which time when that was considered on
the record by the Court, counsel for the respondent denied the
charge while admitting factual allegations 3, 4, and 5, but
denying factual allegations 6 and 7 and 9, but again admitting
factual allegation 8. The Court will address explicitly
subsequently in this oral decision the final content of the
A 037 837 474
4
April 27, 2011
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charges and the factual allegations in these proceedings; Exhibit
2, proposed list of exhibits pertaining to respondent in the form
of his lawful permanent resident card, copy of his I-407 , and a
copy of interpretative releases of April 27, 1992, admitted;
Exhibit 3, an abandonment of permanent resident status Form
I-407 executed by the respondent, admitted; Group Exhibit 4,
supplemental DHS documents consisting of police report of 69
pages, one with the criminal information, 2 pages, one with
criminal court minutes, 2 pages, and finally a Form N-400
application for naturalization filed by the respondent, admitted;
Exhibit 5, an I-261 dated April 20, 2011, admitted; and Exhibit
6, portion of the passport of the respondent showing that he was
issued temporary LPR status on August 20, 2008, with employment
authorized through October 21, 2008, admitted.
Neither counsel objected to the inclusion in the record of
these exhibits.
The Court will attempt to simplify the process of
understanding the dynamics and history of this case by noting
that the first two factual allegations in Exhibit 1 , the NTA of
March 25, 2009 were admitted by counsel of the respondent the
first Master Calendar hearing on the issue of pleadings was
taken. Government on two occasions substituted new factual
allegations 3 through 10 and twice changed the charges.
The final set of documents regarding the same is at Exhibit
A 037 837 474 5
April 27 , 201 1
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s consisting of an I-261 dated April 20, 2011 in which counsel
for the respondent admitted or denied the following factual
allegations and charges: 3. " You were admitted as a lawful
permanent resident of the United States on November 9, 1992, "
admitted; factual allegation 4. "On March 23, 1997 you were
denied entry into the United States because it was found that you
had abandoned lawful permanent resident status while not having
entered or resided in the United States for over two years, "
admitted; factual allegation s, " You signed a Form I-407,
Abandonment of Lawful Permanent Residence Status, " admitted;
factual allegation 6, "This voided your lawful permanent
residence, " denied; factual allegation 7, " You later entered the
United States at an unknown date and an unknown location without
being admitted or inspected by an Immigration officer, " denied;
factual allegation 8, "On January 28, 2008 you filed a Form N-
400, Application for Naturalization with U. S. CIS claiming that
you were still a lawful permanent resident," admitted; factual
allegation 9, " You were given temporary admission as a permanent
resident to the United States from August 22, 2008 till October
21, 2008, U. S. CIS, 11 denied; and factual allegation 10, remained
in the United States beyond October 21, 2008, admitted. Further,
the I-261 of April 20, 2011 provided two charges, the
237(a) (1) (A) charge which incorporated or referenced the
212(a) (7) (A) (i) {I) charge which was denied by the respondent's
A 037 837 474 6
April 27 , 2011
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counsel.
However, to simplify, at the concl usion of the hearing
conducted on April 27, 2011, in regard to Exhibit 5, the I-261 of
April 20, 2011, the Court sustained factual allegations 6, 7 , and
9, as well as the 237 (a) (1) (A) of the 212 (a) (7) (A) {i) (I) charges.
Counsel for the respondent noted her objection. The Court
then indicated that it would dictate a separate oral decision,
but it would concl ude that the respondent abandoned his status as
a l awful permanent resident on the basis of his testimony and the
documentation in this Record of Proceeding (ROP) , and counsel for
the respondent, whil e reserving appeal, counsel for OHS waived
appeal .
This oral decision followed shortl y thereafter.
III. Testimony
At the hearing conducted by the Court on April 27 , 2011, the
Court took testimony. The only witness who testified was the
respondent. He was questioned at great length by both counsels.
It was during that hearing that the Court incl uded in the record
as Exhibit 5, the I-261 dated April 20, 2011 and as Exhibit 6,
the visa portion of the passport of the respondent at pages 6 and
7 showing he was given temporary I-551 status to October 21,
2008, admitted.
When the respondent testified he testified in Spanish with
the use of the Lionbridge Spanish interpreter. He was questioned
A 037 837 474
7
April 27, 2011
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at great length by his counsel. He was then subjected to very
lengthy questioning by Government counsel.
The court and counsel of the respondent waived additional
questioning of the witness.
The Court incorporates by reference in this oral decision
the testimony of the respondent as reflected in the transcript at
the hearing today.
In terms of closing statements, counsel for the respondent
asserted that the respondent disputes everything that DHS is
arguing as to why respondent is deemed to have abandoned his LPR
status and that he is still gained lawful permanent residence,
and, therefore, these proceedings should be terminated.
Counsel for the DHS asserts that it has met its burden of
proof, and that the Court should supine.
The Court incorporates by reference in this oral decision
remarks made by both parties at the conclusion of the hearing,
and, in addition, the Court cites a pretrial brief filed by DHS
counsel on June 28, 2010, in this case entitled "OHS Brief
Regarding Respondent's Contested Removability.
11
This oral decision followed within a short time after the
other hearing after this one concluded.
IV. Credibility Determination
The Court is required in these cases to make a careful
assessment as to both demeanor and testimony presented. Setting
A 037 837 474
8
. April 27, 2011
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aside the decision 'of the Board in Matter of Almanza, the Court
would prefer to rely on prior case law but is clear and explicit
as to the responsibility of the Court both before and after the
REAL ID Act vis-a-vis making credibility determinations. For
this purpose the Court cites the following authorities: Matter
of Almanza, 24 I& Dec. 771 (BIA 2009); Matter of A-S-, 21 I&N
Dec. 1106 {BIA 1 998) ; and Valderrama v. INS, 216 F. 3d 1093 (9th
Cir. 2001).
For purposes of making a credibility determination in this
case the Court must first consider demeanor. In evaluating
demeanor the Court must assess any effort on the part of the
respondent to be evasive and not respond to questions posed, as
well as his mental and physical capacity.
There is nothing that would sugg est to the Court that the
respondent was not physically and mentally competent to testify
that the Court so find.
However, with reg ard to the testimony presented during
questioning particularly by Government counsel the Court noted
that respondent was constantly evasive or denied answering
questions and denied having understood what occurred when he was
interviewed on March 23, 1997 at th f e port o entry when he sought
to reenter and at which time the d respon ent was g iven temporary
right to be in the United States, but it had been presumed and
found by DHS to set forth in the exhibits in this ROP the
A 037 837 474
9
AprJ] 1r 1
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respondent had abandoned his status as a lawful permanent
resident by being outside the United States for two years.
Further, respondent frequently responded that he did not remember
when asked questions by Government counsel. The respondent must
have said this between 25 and 30 or more times during his
testimony today. When asked why he signed the form abandoning
his status, he claimed that he did not understand it and that he
did not know what it meant, but he also claimed that it was
conducted in English and that he did not understand English, and,
therefore, he did not realize what he was signing, although he
did not at any point in time in his testimony today indicate that
he raised any issue as to that interview before he executed the
form which resulted in his loss of status as a lawful permanent
resident on an official basis, which document is part of this
record at Exhibit I-407 which the respondent executed on March
23, 1997.
Further, in observing the respondent when he testified today
the Court can only conclude that he was consistently evasive or
nonresponsive to questions posed to him by the Government or
would simply assert that he had not understood. He constantly
looked down or away from DHS counsel during that questioning and
answer, and at no point in time made a conscious eye contact with
DHS counsel. Being more explicit, the Court was seated right
across from the respondent who was in a chair next to the Bench,
A 037 837 474 10 April 27, 2011
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and at all times during questioning, particularly by Government
counsel he never looked up or looked over to Government counsel,
but rather looked down. He was hesitant or nonresponsive to
countless questions requiring Government counsel in many
instances to have to repeat the question.
Further, the evidence that the Government has produced as
part of this ROP through Exhibit 5 makes explicitly clear as far
as this Court is concerned that the respondent was originally
admitted to the United States as a lawful permanent resident in
1982, left the United States in 1995 because of the criminal case
in which someone was killed in California where he resided. Yet,
apparently he was in Mexico for two years and did not seek to
return until 1997. While respondent makes much of the fact that
he claims he lived in Juarez, Mexico between 1995 and 1997 but
that he worked regularly in El Paso, Texas, he was unable to
produce one document that either showed that he lived in Juarez,
Mexico or worked in El Paso, Texas. Indeed, when asked by
Government counsel for any information about the name of his
employer or employers in El Paso, Texas, he was unable to give an
answer other than to say it was individuals and could not
remember names. Indeed, the testimony of the respondent was
replete with similar lapses of memory, lack of knowledge, or
simply claiming no knowledge.
In the view of the Court having done thousands of these
A 037 837 474 11
April 27, 2011
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cases and indeed having done since 1994 many exclusion cases, the
Court can only conclude that this respondent did not testify
truthfully at all during this hearing today.
Rather, the Court concludes that the documentation provided
to the Government, as well as Exhibit 6 provided by counsel of
respondent today, makes abundantly clear that if respondent
remained outside of the United States for a period of nearly two
years that when he returned on August 22, 2008 he was issued a
document giving him temporary status and employment authorization
until October 21, 2008. It is further evident that the reason
that the N-400 filed by the respondent was denied is because the
respondent had abandoned his status based on the I-407 which is
part of this ROP as previously noted.
Moreover, the respondent repeated on more than one occasion
that the reason he delayed filing for an N-400 to naturalize
because he was waiting till he was old enough to avoid having to
do it in English. However, the Court pointed out to respondent
he was only 51 years of age now and would have been approximately
49 or 50 at the time he would have applied. He was too young to
be able to benefit from the waiver that is available for
individuals seeking to naturalize based on an interview in their
native language as opposed to English. Thus, respondent again
testified less than truthfully.
The Court can only conclude because of the sheer amount of I
A 037 837 474 12 April 27, 2011
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do not remember, I do not know, or I cannot recall responses by
the respondent to Government counsel questions that the
respondent was evasive, he was nonresponsive, he did not provide
truthful answers, and his demeanor clearly indicated that he was
unwilling to look eye to eye to the Government counsel, for that
matter, even the Court.
Therefore, the Court has no hesitancy in concluding that the
respondent was not a credible witness. Moreover, the
documentation in this ROP supports the assertion by the
Government that the respondent abandoned his status as a lawful
permanent resident when he departed the United States in 1995 in
Cal ifornia because he was considered a prime suspect in the
killing that occurred outside of a bar in California. When he
sought to be reentered in March of 1997 he was denied entry
because it was found that he had abandoned the status by not
having entered or resided in the United States for over two
years, again, information which is on the record and is also
demonstrated by the Form I-407, Abandonment of Lawful Permanent
Residence Status that he signed.
Therefore, the Court, on the basis of both demeanor and
testimony presented, did not find the respondent credible, and
the Court makes an adverse credibility finding consistent with
the case law cited above.
IV. Status in the United States
A 037 837 474 13 April 27, 2011
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The Court would simply point out pretrial brief provided by
Government counsel as opposed to the one filed by counsel for the
respondent makes clear that the Act defines lawfully admitted for
permanent residence as the status of being lawfully accorded the
privilege of permanently residing in the United States as an
Immigrant in accordance with the Immigration laws of the United
States set forth in Section lOl(a} (20} under the Act. See also
Matter of Huang, 19 I&N Dec. 749, 753 (BIA 1988}.
In determining the intent of the alien, an Immigration Judge
should rely more upon the actions of the respondent than his or
her stated intention. That is, the Immigration Judge should
examine such factors as the duration of the absence from the
United States of the alien, the location of his family ties,
property holdings and employment, and whatever evidence there is
of his intent to return to the United States. In this instance,
the Court believes that the respondent has failed to demonstrate
on the basis of the record of the Court that he did anything
other than abandon his status within the meaning of Section
lOl(a} (13} of the Act and lOl(a} (27}. The Court also cites for
this purpose Matter of Collado, 21 I& Dec. 1061 (BIA 1998} which
further clarifies BIA case law on this subject.
Thus, the Court concludes, as it would have in an exclusion
case, I made the determination as I was doing today, respondent
abandoned his status as a lawful permanent resident by departing
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. *
the United States in 1995 because of an effort on the part of the
police in Rosario, California to arrest him and charge him with
at a minimum manslaughter/homicide. The respondent was out of
the United States for a period of approximately two years.
Consistent with the language of Section lOl(a) (13) of the Act,
the Court concludes consistent with the case law cited,
respondent abandoned his status as a lawful permanent resident.
Therefore, the Court reiterates that it has sustained the
nine factual allegations 6, 7, and 9, and the
237 (a) (1) {A) /212 (a) (7) (A) (i) (I) charge.
Accordingly, the followings orders are entered in these
proceedings.
ORDERS
IT IS HEREBY ORDERED that the respondent has abandoned his
status as a lawful permanent resident under the Act.
IT IS FURTHER ORDERED because there is no other relief for
this Court's consideration today, the respondent is ordered
removed from the United States to Mexico.
Jefrey L. Romig
A 037 837 474 15 April 27, 2011
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~
r

CERTIFICATE PAGE
I hereby certify that the attached proceeding before
JUDGE HARRY L. GASTLEY, in the matter of:
ERNESTO VILLAZAA-BAELOS
A 037 837 474
Las Vegas, Nevada
is an accurate, verbatim transcript of the recording as provided by
the Executive Office for Immigration Review and that this is the
original transcript thereof for the file of the Executive Office
for Immigration Review.
July 9, 2011
{'completion date)
By submission of this CERTIFICATE PAGE, the Contractor certifies
that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or
CD, as described in Section C, paragraph C. 3. 3. 2 of the contract,
was used to transcribe the Record of Proceeding shown in the above
paragraph.
WG
77 ......W.U. .< H Mt
WP
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