U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5/07 leesb11rg Pike, S11ile 2000

Falls Ch11rch, Virginia 220./l

Caruso, Aaron R., Esq. OHS/ICE Office of Chief Counsel - BAL

Abod & Caruso, LLC 31 Hopkins Plaza, Room 1600
3105 Mt Pleasant Street, NW Baltimore, MD 21201
Washington, DC 20010

Immigrant & Refugee Appellate Center | www.irac.net

Name: AMAYA-PORTILLO, JOSE A 094-216-651

Date of this notice: 7/16/2013

Enclosed is a copy of the Board1s decision and order in the above-referenced case.

Sincerely,

Don.nL ca.AA.)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Lulseges
Userteam: Docket

Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)
 .

U.S. Department of Justice Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A094 216 651 - Baltimore, MD Date: JUL 16 2013

In re: JOSE AMAYA-PORTILLO

IN REMOVAL PROCEEDINGS

APPEAL

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ON BEHALF OF RESPONDENT: Aaron R. Caruso, Esquire

APPLICATION: Temporary protected status

The respondent has appealed from the Immigration Judge's decision dated April 26, 2012.
The Immigration Judge denied the respondent's application for temporary protected status
(11 TPS11) under section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a, for failure
to demonstrate that he has continuously resided in the United States since February 13, 2001, and
that he has been continuously physically present in the United States since March 9, 2001. On
appeal, the respondent argues that his credible testimony and that of his witness are sufficient to
meet his burden of proof. The respondent's appeal will be dismissed.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de nova. 8 C.F.R. § 1003.1(d)(3)(ii).

We agree with the Immigration Judge that the respondent has not met his burden of proof to
demonstrate continuous residence in the United States since February 13, 200l, and that he has
been continuously physically present in the United States since March 9, 2001, pursuant to
sections 244(c)(l)(A){i) and (ii) of the Act, 8 U.S.C. §§ 1254a(c)(l)(A)(i) and (ii). At his
hearing before the Immigration Judge, the respondent provided his own personal testimony and
that of a witness regarding his residence and physical presence in the United States. However,
the respondent did not submit any documentary evidence supporting the witness testimony. The
regulation at 8 C.F.R. § 1244.9(b) provides that in order to meet his or her burden of proof "the
applicant must provide supporting documentary evidence of eligibility apart from his or her own
statements." Inasmuch as the respondent did not submit any documentary evidence to support
the witness testimony, we agree with the Immigration Judge that the respondent did not meet his
burden of proof to establish eligibility for TPS. See Matter of Barrientos, 24 I&N Dec. 100 (BIA
2007).

Effective January 20, 2009, an Immigration Judge who grants an alien voluntary departure
must advise the alien that proof of posting of a bond with the Department of Homeland Security
must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal, and
that the Board will not reinstate a period of voluntary departure in its final order unless the alien
has timely submitted sufficient proof that the required bond has been posted. 8 C.F.R.
§ 1240.26(c)(3). See Matter a/Gamero, 25 l&N Dec. 164 (BIA 2010). The Immigration Judge
Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)
A094 216 651

provided the respondent with the required advisals and granted the respondent a 60-day
voluntary departure period, conditioned upon the posting of a $500.00 bond. The record before
the Board, however, does not reflect that the respondent submitted timely proof of having paid
that bond. Therefore, the voluntary departure period will not be reinstated, and the respondent
will be removed from the United States pursuant to the Immigration Judge's alternate order.
Accordingly, the following orders will be entered.

ORDER: The appeal is dismissed.

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FURTHER ORDER: The respondent is ordered removed from the United States
pursuant to the Immigration Judge's alternate order.

2
Cite as: Jose Amaya-Portillo, A094 216 651 (BIA July 16, 2013)
 \

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFF ICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND

Immigrant & Refugee Appellate Center | www.irac.net

File: A094-216-651 April 26, 2012

In the Matter of

JOSE AMAYA-PORTILLO IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES: Immigration and Nationality Act Section

212 (a) (6) (A) (i) as one who is present in the
United States without being admitted or paroled
or who arrived in the United States at any time
or place other than as designated by the Attorney
General.

APPLICATIONS: De nova review of denial o f temporary protected

status, Form I-821; voluntary departure.

ON BEHALF OF RESPONDENT: JULIO HERNANDEZ

ON BEHALF OF DHS: AMY POLLOCK

ORAL DEC ISION OF THE IMMIGRATION JUDGE

The respondent has been placed in removal proceedings

by the lodging of a Notice to Appear dated November 6, 2009.

The Notice to Appear is a part of this record as Exhibit 1. It

indicates that the respondent is not a citizen or national of

the United States, but a native and citizen of El Salvador

[Exhibit l] . The Notice to Appear indicates that the respondent

arrived in the United States at or near an unknown place at an

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unknown date and that he was not then admitted or paroled after

inspection by an Immigration Officer. Based thereon, the

Department of Homeland Security indicates the respondent is

removable from the United States under Section 212 (a} (6} (A} (i}

as one who is present in this country without being admitted or

paroled or who arrived in the United States at any time or place

other than as designated by the Attorney General [Exhibit 1] .

Respondent appeared previously in Immigration Court

through counsel and admitted allegations 1, 2 and 4. As to

allegation 3, indicates an arrival through Arizona on or about

August 22, 1999. The respondent concedes removability as

charged. Based on respondent's admissions to allegations

contained in the charging document and his concession of

removability, the Court finds that the respondent's removability

has been established by evidence that is clear and convincing as

would be required at INA Section 240{c). See also Woodby v.

INS, 385 U.S. 276 (1966} decided in the context of deportation

proceedings. The Court next turns to the respondent's

application for relief in these proceedings.

The respondent has submitted a petition for temporary

protected status seeking de novo review by the Immigration Court

pursuant to 8 C.F.R. Section 1244.11, his application for

A094-216-651 2 April 26, 2012

 \

temporary protected status as a part of his record as Exhibit 2.

He has also enclosed invoices which are part of this record as

Exhibit 2B.

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The respondent has testified in these proceedings that

he is Jose Amaya-Portillo, that he is from El Salvador. He

stated on direct examination that he came to the United States

on August 25, 1999. He states that he has not made any

departures from the United States since that date.

On cross-examination, the respondent indicated that he

has paid rent since his arrival in the United States and that he

has receipts, however, he concedes that he not submitted such

receipts before the Immigration Court. He states that he has

not received any letters from anyone in the course of his time

here in the United States. Additionally, the respondent

testified that he has filed income taxes in the United States

since as early as 2004, but concedes that he does not have such

forms or that he has never filed any income taxes before that

date.

In addition to the respondent's testimony is called on

the testimony of one Maria Salmeron who has been granted

t emporary protected status in the United States according to her

testimony. She states that she came to the United States in

2000. She states that she knew respondent in El Salvador "since

1999." She states that they worked together in a restaurant for

a while in Virginia. She states that as far as she knows the

A094-216-651 3 April 26, 2012

 �
�

respondent has not left the United States since his arrival.

She indicated the respondent came to the United States in 1999

and that she knows that because they are from the same town in

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El Salvador.

The respondent indicates that he has sufficient funds

to pay for his departure from the United States and that he has

not been involved in any criminal conduct. The respondent

states that he has the appropriate travel document and that he

is willing to comply with an order of voluntary departure if

accorded.

I have had an opportunity to observe the respondent's

demeanor throughout these proceedings and to assess his

testimony in the context of the documents that he offered in

support of his claim. There is no outward signs of the

respondent making misrepresentations to the Court. The

respondent appears to have testified credibly, however, the

respondent has no documentary evidence to support his claim of

an arrival in the United States since as early as 1999. The

Department of Homeland Security has offered the notice of intent

to deny an application for temporary protected status, which is

a part of his record as Exhibit 3A and an outright denial of the

respondent's request for temporary protected status, which is a

part of his record as Exhibit 3 and 3B.

In the notice of intent to deny, which the Court is

reviewing in these proceedings, the Department of Homeland

A094-216-651 4 April 26, 2012

 \

Security indicated to the respondent that he "failed to

establish that you have continuously resided in the United

States since February 13, 2001 pursuant to 244 (c) (1) (A) (ii) of

Immigrant & Refugee Appellate Center | www.irac.net

the Act. " The notice from the Department o f Homeland Security

states as well that the respondent should submit evidence to

show that he has resided in the United States as o f February 13,

2001. It is also pointed out to the respondent that "it is not

enough to show that you are simply present in the United States.

You must show that you established a residence in the United

States as of February 13, 2001. Acceptable evidence might

include, but is not limited to employment or school records,

rent or medical receipts, bank accounts or insurance documents."

Additionally, the notice of intent indicated to the respondent

that he " failed to establish that you have been continuously

physically present in the United States since March 9, 2001 to

the date of filing o f your application pursuant to Section

244 (c) (1) (A) (i) of the Act."

The Department of Homeland Security urged the

respondent to both provide documents to show that you have been

physically present in the United States from March 9, 2001 to

the date o f the filing. [Exhibit 3A]. The notice of intent to

deny is dated April 28, 2003. On July 31, 2003, the Department

o f Homeland Security sent the respondent a notice indicating

that his application for temporary protected status was denied

because the respondent was unable to overcome the grounds stated

A094-216-651 5 April 26, 2012

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in the notice of intent to deny.

In order to qualify for temporary protected status as

a native and citizen of El Salvador, it is the respondent's

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burden to demonstrate that he is a native and citizen of El

Salvador and that he has continuously resided in the United

States since February 13, 2001 up to the date of filing the

application for temporary protected status benefits. It is also

the respondent's burden to establish that he has been

continuously physically present in the United States since March

9, 2001. 8 C.F.R. Section 1244.9 regarding evidence sufficient

to establish physical presence and residence and other

eligibility for temporary protec� ed status makes it clear that

as it relates to proof of residence (8 C.F.R. Section

1244.9 (a) (2)) such evidence may consist of documents such as

employment records, such as paystubs or W-2 forms,

certifications of filing of federal, state and local income tax

returns or if the applicant has been self-employed, letters from

banks and other firms with whom he or she has done business.

The Code of Federal Regulations is very specific in terms of the

information that should be contained in such documents.

The litany of documents referenced at 8 C.F.R. Section

1244.9 (a) (2) includes such things as well as proof of the

alien's residences, addresses at the time of employment, the

periods of employment, periods of layoffs, if any, and duties

with a particular company. An applicant can offer rent

A094-216-651 6 April 26, 2012

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(

receipts, utility bills, electric, telephone, or receipts or

letters from companies showing the dates during which the

applicant received service. Such an applicant may also enclose

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school records such as letters or report cards from the schools

if the applicant attended school.

There is also room to submit hospital or medical

records showing medical treatment or hospitalization or

attestations by churches or unions or other organizations o f the

applicant's residency with specific requirements therein as

well. It is made clear from 8 C.F.R. Section 1244.9 (a) (2) that

the litany re ferenced therein is not the limit to documentation

that the respondent may be able to offer. It is reasonable that

i f an individual has been in the United States for the length of

time that the respondent claims to have been here that the

documents referenced at 8 C.F.R. Section 1244.9 (a) (2) should be

available. The respondent has not o f fered any such documents

before the Court. The Court notes as well that the respondent's

testimony was quite sparse. The respondent does not me?tion

places where he worked, the length o f time working there, his

salaries at those places and has not enclosed any receipts to

that e ffect.

The respondent has not made any re ference to any

addresses where he may have lived in the United States and

simply states that he has receipts from places that he rents,

but he has not o f fered those receipts to the Court.

A094-216-651 7 April 26, 2012

 The respondent has not shown even in his testimony any

other activities showing the establishment of a residence as

well. as continuous physical presence in the United States for

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the period of time required for eligibility for temporary

protected status.

The Court has conducted a de novo review of the

respondent's eligibility for temporary protected status pursuant

to 8 C. F. R. Section 1244. 11. The Court finds on this record

that the reasons that the Vermont Service Center denied the

respondent's application for temporary protected status are

sufficient and valid and establish that the respondent has not

met his burden of demonstrating eligibility for temporary

protected status. He has � urther not overcome his inability to

establish that residence and continuous physical presence before

the Court and therefore his application for temporary protected

status will be denied.

The respondent has testified that he has sufficient

funds to pay for his departure from the United States, that he

has not been involved in any criminal conduct and that he can

acquire the appropriate travel document. He has stated as well

that he is willing to comply with an order of voluntary

departure. And based thereon the Court will find that the

respondent meets the threshold eligibility requirements for

voluntary departure and will grant that limited form of relief

through June 11, 2012 with an alternate order of removal from

A094-216-651 8 April 26, 2012

 ''·

the United States to El Salvador in the event that the

respondent fails to comply.

ORDER

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IT IS ORDERED the respondent's application for

temporary protected status .be and the same is hereby denied.

IT IS FURTHER ORDERED the respondent's request for

voluntary departure be granted through June 11, 2012 provided

the respondent places a voluntary departure bond in the amount

o f $500 with the Department of Homeland Security by May 3, 2012.

Failure to comply with the order of voluntary departure

including the posting o f the bond in the amount o f $500 will

result in an order o f voluntary departure� becom£ (?

automatically an order o f removal from the United States to El

S alvador.

A094-216-651 9 April 26, 2012

.
'

CERTIFICATE PAGE

I hereby certi fy that the attached proceeding be fore JUDGE

PHILLIP T. WILLIAMS, in the matter o f:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE AMAYA-PORTILLO

A094-216-651

BALTIMORE, MARYLAND

is an accurate, verbatim transcript of the recording as provided

by the Executive Of fice for Immigration Review and that this is

the original transcript thereof for the file of the Executive

O ffice for Immigration Review.

MICHAEL PERLMAN (Transcriber)

DEPOS ITION SERVICES, Inc.

JUNE 25, 2012

{Completion Date)