RAHMAN, AKIM

4428 TRAILANE DRIVE

HILLIARD, OH 43026-0000
Name: RAHMAN, AKIM
U.S. Department of Justice
Executive Ofce fr Immigation Review
8oarofIootgrattooappeals
Oceof//ecler|
5107 Leesburg Pike. Suite 2000
Falls Cl111rcl1. Vrinia 12041
OHS/ICE Ofice of Chief Counsel CLE
1240 E. 9th St., Room 585
Cleveland, OH 44199
A079-687-751
Date of this notice: 12/6/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Akim Rahman, A079 687 751 (BIA Dec. 6, 2011)
4
u.s. Department of Justice
.Executive Ofce fr Imigation Review
Falls Church, Virginia 22041
File: A079 687 751 - Cleveland, OH
In re: AKM RAHMAN
IN REMOVAL PROCEEDINGS
APPEA
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Kris K. Stoker
Assistant Chief Counsel
APPLICATION: Terination of proceedings
Decision of the Board of Imigration Appeals
Date:
H 0lI
The respondent, a native and citizen of Bangladesh, appeals fom the Immigration Judge's
decision dated March 29, 2011, which ordered him removed fom the United States. The parties
have provided arguments on appeal. The appeal will be dismissed in pa and the record remanded.
We review Immigation Judges' fndings of fct fr clear eror, but we review questions of law,
discretion, and judgment, and all other issues i appeals de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The record shows that on April 15, 2003, the Department of Homeland Security (DHS)
personally served the respondent with a Notice to Appear (NT A), which alleged that he was admitted
to the United States on July 16, 1999, as a nonimmigrant student to attend Ohio State University and
that he did not attend that school fom June 2002 through April 15, 2003 and charged that he was
removable under section 237(a)(l)(C)(i) of the Immigration and Nationality Act,
8 U.S.C. 1227(a)(l)(C)(i) (nonimmigant - violated conditions of status) (Exh. 1). On
November 28, 2005, an Immigration Judge granted a joint motion to administratively close
proceedings to allow the United States Citizenship and Immigration Services (USCIS) the
opportunity to adjudicate a pending Form I-140, Petition fr Alien Worker. On April 26, 2010, the
case was recalendared pursuant to a DHS motion that indicated that the USCIS denied the
respondent's I-140 on January 23, 2007. Thereafer, the DHS withdrew the fu fctual allegation
fom the NT A and lodged a substitute allegation that the respondent failed to maintain the conditions
of his student status (Exh. 3; Tr. at 54-58). The respondent, through counsel, denied the allegations
and the charge (Tr. at 39-40, 55).1 He fled a motion to terminate proceedings. The Immigration
Judge fund that the respondent was removable as charged, denied the motion to terminate, and
deterined that the respondent was not eligible fr ay relief fom removal (l.J. at 5-9).
The record shows that the respondent was represented by counsel during the October 7, 2010,
contested hearing. Counsel subsequently fled a motion to withdraw, which the Immigration Judge
granted on January 25, 2011.
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Cite as: Akim Rahman, A079 687 751 (BIA Dec. 6, 2011)
A079 687 751
Upon de npvo review, we agree with the Immigration Judge's determination that the respondent
is removable a charged. A nonimmigant in the United States who has been accorded a
nonimmigant classifcation that authorizes employment or who has been peritted to engage i
employment may engage in only such employment as has been authorized. 8 C.F .R. 214.1 ( e ). Any
unauthorized employment by a nonmmigrant constitutes a filure to maintain status. Id. An F-1
student is generally admitted fr the duration of status. 8 C.F.R. 214.2(f(5)(i). Duration of status
is defned as the time during which an F-1 student is pursuing a fll course of study at an educational
institution approved by the Service fr attendance by freign students or engaging i authorized
practical training fllowing completion of studies. Id. See also 8 C.F.R. 214.2(f(l 0). For a
student with post-completion optional practical training (OPT), the duration of status is defned as
the period beginning when the student's application fr OPT was properly fled and pending
approval, including the authorized period of post-completion 0 PT, and ending 60 days afer the 0 PT
authorization expires. 8 C.F.R. 214.2(f(IO)(ii)(D). A student must apply to the USCIS fr
authorization fr temporay employment fr OPT. 8 C.F.R. 214.2(f(IO)(ii)(A), (f(l l)(i). See
8 C.F.R. 274a.12(c)(3) (when an F-1 student visa holder must apply fr employment
authorization). A student may not begin OPT until the date indicated on his or her employment
authorization document. 8 C.F.R. 214.2(f)(IO)(ii)(A), (f(l l)(i)(D).
I this case, the respondent had employment authoriztion fr OPT fr the periods fom
Febru 25, 1998, through Febrary 25, 1999; May 14, 1999, through April 30, 2000; and July 30,
2001, through June 1, 2002 (Exh. 2; Tr. at 64-70). He did not receive any other employment
authorztion cads (Tr. at 77-78, 85). The respondent testifed that he graduated fom Ohio State
University in December 2000 (Tr. at 64). From sometime afer gaduation until July 30, 2001, he
was working fll time fr the State of Ohio (75-76, 79, 82-84). He also had fll-time employment
with the State of Ohio afer June 1, 2002 (Tr. at 70). Notwithstanding the respondent's belief to the
contary, neither a pending employment-based visa petition nor an application fr adjustment of
status confrs work authoriztion fr purposes of maintaining the conditions of student visa status
(Tr. at 77-78, 83, 85, 103-104, 150-151). See 8 C.F.R. 274a.12(c)(9) (an alien who has fled an
application fr adjustment of status must apply fr employment authorization). Absent
coresponding employment authorization documents, we are not persuaded that the reference in the
July 29, 2005, letter fom the USCIS to termination of employment authorization requested or
granted pursuant to 8 C.F.R. 274a.12(c)(9) may be reasonably construed to mean that the
respondent had employment authorization fom the USCIS up to the date of that letter. Moreover,
the respondent testifed that he never applied fr employment authorization in connection with his
application fr adjustment of status (Tr. at 77-78, 85). Thus, we agree with the Immigration Judge
that the respondent admitted to engaging in employment not authorized by the USCIS and that such
unauthorized employment constitutes a filure to maintain status. See 8 C.F.R. 1240.IO(c)
(removabilit may be established by admission of the respondent). There is no documentation fom
te designated school ofcial to support a contrary conclusion. Accordingly, we agee with the
Immigration Judge that the respondent is removable as charged.
The respondent makes a number of due process arguents in his brief on appeal, which we fnd
are without merit. The decision to initiate removal proceedings against the respondent in 2003 is
a matter within the sole discretion of the DHS. See section 242(g) of the Act, 8 U.S.C. 1242(g).
Similaly, the alleged denial of the right to counsel at the special registation interview with the DHS,
which led to the issuance of the NT A, or denial of access to fles under DHS control is beyond the
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Cite as: Akim Rahman, A079 687 751 (BIA Dec. 6, 2011)
A079 687 751
scope of our jisdiction. See Matter of Herandez-Puente, 20 I&N Dec. 335, 339 (BIA 1991 ). The
respondent admitted, through counsel, the DHS' s allegation of the respondent's alienage in the NT A
(Tr. at 39). See Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986). The record does not
support the respondent's contention on appeal that the additional allegation lodged by the DHS was
never served on him or counsel (Exh. 3; Tr. at 54-55). We otherwise fnd no defect in the charging
documents (Exhs. 1, 3). 8 C.F.R. 239.1, 1003.30. We are not persuaded that the I-213, Record
of Deportable/nadmissible Alien (Exh. 1 ), was not served on the respondent or counsel or is
otherwise subject to suppression. See Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). In
addition, the record shows that respondent, through counsel, and the DHS jointly ageed to
administative closure of proceedings in 2005. See Matter of Velasquez, supra. The DHS's
April 2010 motion to recalendar proceedings indicates that it was served by mail on the respondent,
and the record does not indicate that he opposed such action. The respondent's assertions do not
persuade us to conclude that the DHS intentionally delayed te respondent's immigation
proceedings.
Although we agree that the respondent is removable as charged, we fnd that remand is required
with respect to the relief fr which the respondent is potentially eligible. The Immigration Judge
deterned that the respondent was not eligible fr adjustment of status because there was no
approved For I-140 and any pending I-140 was predicated on the same bases as visa petitions that
had been previously denied (l.J. at 8). During proceedings, the respondent submitted variou pieces
of evidence to demonstrate that he had filed several visa petitions on his own behalf. See 8 C.F .R.
204.5(h), (k) Our review of the record refects that the respondent fled at least thee visa
petitions on Januar 27, 1999 (receipt number LIN-99-082-51065); May 7, 2004 (receipt number
LIN-04-157-51079); and May 24, 2006 (receipt number SRC-06-185-51154) (Joint Motion fr
Administative Closure dated November 25, 2005, Tab A; Respondent's motion dated November
29, 2010). According to the USCIS online database, each of these thee visa petitions is curently
pending. There is no indication that any of these visa petitions has been denied in a fnal decision
by the USCIS (l.J. at 8). Under the circumstances, we fnd that it is appropriate fr the Immigration
Judge to ascertain more precisely the status of the respondent's visa petitions and determine what
fher proceedings are waranted with respect to the respondent's potential fr adjustment of status.
See Matter of Rajah, 25 l&N Dec 127 (BIA 2009) (enumerating a number of fctors to evaluate
when considering whether there is good cause to continue proceedings to await the adjudication of
a pending employment-based visa petition).
The Immigration Judge also deterined that the respondent was not eligible fr voluntary
departure because he did not present a current passport (l.J. at 9). Our review of the record does not
reveal any discussion during the fnal hearing concering the respondent's passport fr purposes of
The record indicates that a Form 1-140 (receipt number SRC-06-174-55307) is lined to the
respondent's name but is not associated with any alien number connected to the respondent (Exh. 6,
Request fr Evidence dated October 12, 2006). The USCIS online database shows that a denial
notice fr this visa petition was mailed on December 15, 2006. I is unclear whether the denial of
this visa petition was the basis fr the DHS's April 2010 motion to recalendar the respondent's
removal proceedings befre the Immigration Judge.
3
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Cite as: Akim Rahman, A079 687 751 (BIA Dec. 6, 2011)

A079 687 751
voluntary departe. With the Notice of Appeal, the respondent provided a copy of his renewed
passpQrt, which was valid until March 31, 2011. On remand, if the respondent still seeks voluntary
departure, the Immigation Judge should make a specifc inquir as to his eligibilit.
Finally, we note that the respondent asks on appeal that we grant him United States citizenship.
A person may acquire United States citizenship by birth or naturalization. The naturaliztion
application process is under the sole jurisdiction of the DHS; neither the Board nor the Immigation
Judge has any authority in such a matter. See Matter of Acosta-Hidalgo, 24 l&N Dec. 103
(BIA 2007). I any event, we note that the record does not indicate that the respondent can satisf
his burden of prove that he has been lawflly admitted to the United States fr permanent residence,
a prerequisite to naturaliztion. See section 318 of the Act, 8 U.S.C. 1429.
In conclusion, we agee with the Immigation Judge that the respondent is removable as charged.
However, a remand is required to evaluate the respondent's eligibility fr relief fom removal.
Accordingly, the fllowing orders will be entered.
ORER: The respondent's appeal of the Immigration Judge's decision fnding him removable
as charged is dismissed.
FURTHER ORER: The record is remanded to the Immigration Judge fr further proceedings
consistent with the fregoing opinion and fr the entry of a new decision.
There is a discussion during the October 7, 2010, hearing about the respondent's passport related
to cerifcation of his school enrollment (Tr. at 91-94, 97, 99).
4
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Cite as: Akim Rahman, A079 687 751 (BIA Dec. 6, 2011)
US DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
801 WEST SUPERIOR A VENUE, SUITE 13-100
CLEVELAND, OH 44113
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In The Mater Of: )
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Akim RAHMAN
.
In Removal Proceedings'
Respondent.
Docket: Cleveland Non-Detained (CEL)
File Number: A079 687 751
>
RE: Motion to Terminate or Dismiss Proceedings
CHARGE: Section 237(a)(I )(C)(i) of the Immigration and Nationality Act
ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DHS:
Pro se Amy Scheunan, Assistant Chief Counsel
Ofce of the Chief Counsel
U.S. Immigration & Customs Enfrcement
1240 E. 9th Street, Suite 519
Cleveland, Ohio 44199
MEMORANDUM AND ORDER
HISTORY OF CASE
Respondent is a native and citizen of Bangladesh who last entered the United States on July 16,
1999. These proceedings began when the Department of Homeland Security ("OHS") fled a
Notice to Appear (''NTA"
)
with the Court on June 12, 2003 having served the NT A on the
Respondent on April 15, 2003. See Exhibit I. The NTA charges that the R(spondent is
removable under Immigration and Nationality Act ( .. INA") 237(a)( 1 )(C)p)(meJ9.maintain
or comply with conditions of nonimmigrant status). Id. An 1-261 d fled the'<urt on
September 23, 20 l )
.
with a substitute allegation 4 however the charge .cf rem

lity remained
the same. See Exhibit 3.

@

Order A079 687 751 Page I

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The Court's order fom January 26, 201 I contains a detailed summary of the history of these
proceedings. In summar, the Respondent appeared at several master calendar hearings in 2004
and 2005, including one with a prior attorey in January 2005. Pleadings were not taken at any
of these prior hearings as continuances were granted either to allow Respondent to find counsel
or to allow time fr adjudication of Respondent's 1-140. On November 28, 2005, the Court
granted a joint motion to administratively close Respondent's removal proceedings submitted by
Respondent's new attorey and counsel fr DHS to allow time fr USCIS to adjudicate the I-
140. The Respondent's case remained administratively closed until a motion to recalendar was
fled by DHS in April 20 JO due to the denial of Respondent's 1-140. The next hearing was held
on August 2. 2010. At that hearing, pleadings were taken and the Respondent, through counsel,
denied allegation 4 as well as the underlying charge of removability. Respondent asserted he has
maintained his nonimmigrant student status since his last entry in July I 999. Following that
hearing, on September 23, 2010, OHS submitted the 1-261 fund at Exhibit 3. The 1-261 lists an
additional allegation however at the October 7, 2010 hearing, OHS moved to instead have the
allegation be a substitute allegation 4. Respondent continued to deny the alJegation as amended.
At the contested removability hearing held on October 7, 2010, OHS called the Respondent as a
witness and he testifed under oath regarding both his educational and work histor since last
entering the United States. Respondent's testimony is summarized below. Following that
hearing, Respondent's attorey withdrew fom his case and he has been appearing in court pro se
since that time.
Following the October 7, 2010 hearing, the Respondent fed three motions which were all
addressed and denied in an order issued by this Cour on January 26, 2011. Another master
calendar hearing was held on February 8, 201 I. The Respondent brought to that hearing an 1-
539 in response to the Court order of January 26, 2011. The application had not yet been fled
with USCIS and did not include supporting documents evidencing prima fcie eligibility fr
reinstatement of his student visa. The case was continued to March 22, 20 I 1 fr the Respondent
to bring evidence that he is prima fcie eligible fr reinstatement of his student visa.
Following the Febrary 8, 2011 hearing, the Court received additional filings including a Motion
to Terinate fled by the Respondent on Febrary 16, 201 1 and a Motion to Terminate and Grant
Relief on March 10, 201 1. On March 7, 201 I , OHS fled proposed exhibits and then on March
8, OHS fled their opposition to the Respondent's motion to terminate. At a master calendar
hearing on March 22, 2011, the Respondent fled an addendum to his Motion to Terinate,
entitled Motion fr Analysis as well as an additional Motion to Grant Relief The Court
indicated at the March 22, 2011 hearing that the record was closed.
At the March 22, 201 I hearing, the Respondent also testifed that he was unable to obtain any
type of letter fom Ohio State University regarding his maintenance of student status.
Respondent asserted, as he has assered befre, that OSU would not issue a new 1-20 because one
was not necessary. The Cour closed the record and indicated a written order would be issued to
address removability and the pending motions.
Order A079 687 751 Page 2
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EVIDENCE
The fllowing documents were marked and entered into evidence:
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Respondent's NTA, dated April 15, 2003.
Submission fom Respondent, received by the Court on October 7, 2010, group
exhibit consisting of 6 pages.
1 -261 fled by OHS, received by the Court on September 23, 2010.
Submission fom Respondent, received by the Court on July 16, 20 I 0.
Submission fom Respondent, Motion to Grant a Relief with supporting
documents, received by the Court on February 8, 2011.
Submission fom Respondent, Motion to Terminate with supporting documents,
received by the Court on February 16, 2011.
Submission fom OHS, received by the Court on March 7, 2011.
At the October 7, 2010 contested removability hearing the Respondent testifed as the sole
witness. Respondent was represented by counsel at this hearing. He testifed that he frst entered
the United States in September 1990 with an F-1 and an 1 -20 to attend the University of
Minnesota. He testifed that his most recent entr was on July 16g 1999 with an F-1 pursuant to
an 1 -20 to attend Ohio State University. Respondent testifed that he has received I-20s fom
three entities: University of Minnesota; Ohio State University and Columbus State Community
College.
Respondent testifed that when he reported to OHS fr his NSEERs registration in 2003 he was
working fr Ohio State University pursuant to his optional practical training ("OPT') and. he was
not attending school at that time. He testifed that he showed the OHS ofcials his diploma
indicating that he had graduated fom Ohio State University. Respondent frther testifed that he
had an 1 -20 fom Columbus State Community College.
Respondent testified that he received OPT in December 2000 and that 200 I was when he frst
received employment authorization. He testifed that he applied for his OPT and employment
authorization befre he graduated in December 2000. Respondent testifed that he received
employment authorization three times. Copies of all three employment authorization cards are
included in the record at Group Exhibit 2. All three appear to have been issued pursuant to OPT
Order A079 687 751
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status and Respondent testifed to the same. Respondent testifed that his last period of OPT
began on July I. 2001. Respondent acknowledged that the last employment authorization card
expired on June I. 2002. Respondent testifed that afer that card expired, he was attending
Columbus State Community College and working full time fr the state of Ohio. He testifed he
was doing this because he had a pending 1-140 and 1-485. Respondent testifed that he was
taking computer science courses fr his employer and was enrolled in an associate degree
program in computer science. He testifed he was not maintaining a course load of 12 hours or
more but was receiving credit fr research he was doing at Ohio State University.
Respondent testifed that fom December 2000 to July 31, 2001 he was working fll time fr the
state of Ohio and said he had OPT status. Respondent testifed that he began taking classes again
in June 2001. Respondent then testifed that he was hired because of the PHd he received in
December 2000. He testifed that he had previously been working on a project as a student that
he had completed within a few months of fnishing his thesis. He testifed that he was paid fr
his work by Public Utilities Commission of Ohio. Noting that he had no employment
authorization card fr the period of April 2000 to July 2001, Respondent was asked what
documents he had that authorized him to work during that time. Respondent testifed that his
employment based case was pending. He testifed that he did not receive employment
authorization pursuant to his I-485.
Respondent testifed that he maintained 12 hours of course credits fom December 2000 to July
2001 due to the research project he was working on. Respondent testifed that he is curently
again a student at Ohio State University seeking his masters in public health and submitted
evidence to that efect. See Group Exhibit 2.
Respondent presented two I-20s issued by Ohio State University with the more recent one dated
March 1, 2001 that indicated Respondent's expected graduation date was June 10, 2004. See
Group Exhibit 2. Respondent also submitted evidence that he is currently enrolled in another
graduate program at Ohio State University efective September 2010.
ANALYSIS
Removabilit
OHS has the burden to establish that the Respondent is removable as charged by clear and
convincing evidence. INA 240( c)(3 )(A). An 1-213, Record of Deportable Alien, was attached
to the Respondent's NTA. See Exhibit I. OHS also submitted documents showing the
Respondent is not in the SEVIS System however apparently his name does not appear to be in
the system. See Exhibit 7. OHS called the Respondent as a witness at the contested
removability hearing.
The issue befre the Court is whether the Respondent has maintained his student visa status since
his last entry in July 1999. Under the regulations, a student who transfrs to a diferent school
without permission or has committed any other violation of his student visa, such as
Order A079 687 751 Page 4
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unauthorized employment, has filed to maintain status and the Court must therefre fnd such a
respondent removable fr failing to comply with his visa. Matter of Yazdani, 17 l&N Dec. 626
(BIA 1981 ). The Court has no authority to reinstate a student visa or otherwise frgive even a
technical violation of a student visa status. Id. The Respondent's testimony raised several areas
of concers fr the Court in regard to violations of his status including whether he properly
transferred to Columbus State Community College; whether he engaged in unauthorized
employment and whether he has continued to maintain his status since his time at Columbus
State Community College.
At the contested removability hearing, the Respondent testified to attending several diferent
colleges and universities to pursue several diferent degrees. The Respondent claimed he was
issued an 1-20 to attend Columbus State Community College and properly transfrred to that
school. Respondent has now submitted to the Court a copy of his 1-20 fom Columbus
Community College indicating his anticipated date of completion of studies was June 10, 2004.
See Exhibit 6. This 1-20 does indicate that Respondent properly transfrred to Columbus State
College although it is not clear whether he then properly transfrred back to Ohio State
University or has otherwise maintained his F-1 student visa status at OSU. Respondent has
repeatedly submitted evidence that he is still enrolled at OSU however enrollment in school
alone does not mean Respondent has maintained compliance with the student visa since 1999.
Respondent testifed that his last employment authorization card expired on June 1, 2002. See
also Group Exhibit 2. Respondent frther acknowledged in his testimony that he did not have
employment authorization to work between April 30, 2000 to July 30, 2001 . Id. Respondent
testifed that he worked fr the state of Ohio fom sometime in 2000 until mid 2001. He furher
testifed that at the time he reported to OHS in compliance with the NSEERS program he was
working and not attending school and this would have occurred in April 2003. While he testifed
that he bega his work with the state of Ohio and Public Utilities Commission as a student
working on a research project, he testifed that the work continued after he fnished his thesis and
he was later paid by the Public Utilities Commission. In regard to his work between April 2000
and July 2001 , Respondent testifed that he believed he was authorized to do this work because
he has an 1-1 40 and 1-485 pending. Respondent testifed that he never received employment
authorization through his 1-485. He furher testifed that the only three employment
authorization cards that he received were pursuant to OPT, copies of which are included in
Group Exhibit 2. The cards refect and the Respondent testifed to a gap in the employment
authorization fom April 2000 to July 2001 . The cards frther refect and the Respondent
testifed that the last one expired in June 2002, however he testifed he was working in April
2003 when encountered by ICE. Respondent testifed again at subsequent hearings that he
believed he could work due to his pending 1-485 however he has also ackowledged that he
never applied fr or received employment authorization based on that pending 1-485.
Accordingly the employment the Respondent engaged in between April 2000 and July 2001 as
well as his employment afer June I, 2002, was unauthorized employment. Therefre, the Cour
fnds that the Respondent engaged in unauthorized employment which is a violation of student
visa status. 8 C.F.R. 2J4.2(f(9). Accordingly, the Court fnds that the Respondent has failed
to maintain or comply with the conditions of his student visa and therefore fnds that allegation
Order A079 687 751 Page 5
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4, as amended in the 1 -261 , has been established by clear and convincing evidence. At this time
the Cour fnds the Respondent is removable as charged under IA 237(a)(1 )(C)(i) due to his
filure to maintain or comply with the conditions of his nonimmigrant visa.
As has been explained to the Respondent, while he has repeatedly submitted documents showing
current enrollment in OSU, there is much more to compliance with the requirements of a student
visa than enrollment in school and the Respondent has not submitted anything fom the
Designated School Ofcial (''DSO
..
) at OSU verifying he is considered to be in valid F-1 status.
As discussed below, the Respondent has fled several motions in this case and in his motions, he
makes reference to having presented the Court with a letter fom a DSO regarding his continued
enrollment at OSU. See Exhibit 6. The documents included in Exhibit 6 are signed by a
graduate studies committee chair and a college secretary. The DSO is defned in the regulations
and while the Respondent has submitted evidence of continuing enrollment, none of his curent
documents have been issued by the DSO or by any individual authorized to address whether the
Respondent is currently maintaining his F-1 student visa status. See 8 C.F.R.
214.3(1)( 1 )(i)(defnition of DSO).
As indicated above, due to the Respondent's testimony regarding his period of unauthorized
employment, the Court fnds that OHS has met its burden of proof and is sustaining the charge of
removability. The Court continues to have questions about whether the Respondent has
otherwise maintained his status continually since 1 999 however with the curent record, the
Court is not in a position to address, nor does it need to determine, whether any other violations
have occured.
Motions to Terminate and Grant Relief
Since the Cour's last order dated January 26, 2011, the Respondent has filed approximately fve
additional motions. All of the motions are essentially requesting either that the Court terinate
these proceedings or grant the Respondent relief.
Respondent has asserted in several of his motions that these removal proceedings were
improvidently begun. He has argued that he was still in valid student status at the time
proceedings began in June 2003. He has alteratively argued that he should not have been
placed in proceedings because he had a pending 1 -140 and 1-485 at the time he was placed in
proceedings. Having a pending 1-140 does not confer any type of lawful status that protect
someone fom removal proceedings. In regard to whether the Respondent has been properly
placed in removal proceedings, once DHS chooses to initiate proceedings against an alien, it is
the role of the immigration court to determine whether that alien is removable as charged.
Matter of Yazdani, supra. at 630. In this case, the Court has now ruled that the Respondent is
removable as charged. Accordingly, the Cour must order the Respondent removed unless he
establishes eligibility for d frm of relief. Funher
.
the Cour has fund that the Respondent's
violation of his student visa status occurred prior to the issuance of the Notice to Appear.
Order A079 687 751 Page 6
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Respondent also cites Matter of G-N-C- fr the proposition that his proceedings should be
terminated. 22 I&N Dec. 366 (BIA 1998). In Matter of G-N-C-, the Board holds that the
Immigration Judge is not required to terminate proceedings upon motion by OHS but must
instead adjudicate motions to terminate on their merits according to the regulations. Id, citing 8
C.F.R. 239.2. The Court has thoroughly reviewed all of the Respondent's motions and
memoranda. The Court will address some of the specifc issues raised by the Respondent below
however
.
even if not addressed below, the Court has reviewed and considered all of the
Respondent's arguments and fnds there is no basis to terminate proceedings.
In regard to the Respondent's ongoing concern about the delay in his case, this issue was
thoroughly addressed in the Court's prior order. The Court understands that the Respondent now
wishes he had pied to the allegations and charges against him back in 2004 when he frst
appeared befre an immigration judge. However, as noted in the Court's prior order, the
Respondent's prior hearings were continued at his request or the request of his prior attoreys.
Further, as discussed above, the Court fnds that the Respondent had already violated the
conditions of his student visa by 2003 so while this case may have been resolved at an earlier
date if pleadings had been done earlier, the outcome would not have changed therefre the
Respondent was in no way prejudiced as he was essentially allowed an additional 5 or 6 years to
remain in the United States and to continue to pursue other avenues of relief such as the
adjudication of his 1-1 40. Following the denial of at least one of his I-1 40s, OHS properly
sought recalendaring of the Respondent's case.
In his February 16 motion to terminate, Respondent sets frth some constitutional and regulatory
violation arguments fr why his proceedings should be terminated. Respondent previously,
through counsel, acknowledged proper service of the NT A thereby making any allegation of a
regulatory violation in the issuance of the NT A moot or untimely. Further, none of the defcts in
the NTA appear to have prejudiced the Respondent in anyway. Finally, this Court is not the
proper frum to address any allegations of constitutional violations unless they are egregious
Constitutional violations that may justify suppression of evidence. In this case, the Respondent,
through counsel, previously acknowledged proper service of the NTA and pied to the allegations.
No assertion was made at that time that the evidence submitted by OHS such as the 1-213 was
subject to suppression. Therefre the Court fnds the Respondent cannot now argue fr
suppression of evidence. See Matter of Velasquez 1 9 I& N Dec. 377, 382-3 (BIA 1986){a
respondent is bound by attorey's pleadings and admissions absent a showing of egregious
circumstances). At the contested removability hearing, no objections were raised to the 1-21 3
and the Respondent voluntarily testifed at the contested removability hearing which was the
evidence presented by OHS in support of the allegations against him.
The Respondent further asserts that DHS is abusing its power and taking willful actions against
him however the Court does not see that these allegations are accurate or relevant in these
proceedings. In his March 10, 2011 Motion to Terminate, the Respondent requests termination
based on an allegation that OHS has violated fderal civil rights laws. This is not the proper
frum fr such an allegation and is not a basis fr this Court to terminate removal proceedings
Order A079 687 751 Page 7
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The Court fnds there is no basis to terminate these proceedings and will accordingly deny the
Respondent's Motions to Tcninate. 8 C.F.R. 239.2.
Respondent fled Motions to Grant a Relief at his master calendar hearings on February 8, 2011
and March 22, 2011. In both of these motions. the Respondent indicates that he would like the
Cour to grant him relief so he can serve the United States, including the fderal goverment. In
the more recent motion. Respondent also asserts humanitarian issues based on the pending
freclosure of his house. In his motions, the Respondent appears to be asserting that due to his
skills, lengthy residence in the United States and other fctors, the Cour should simply grant him
some frm of relief. Immigration Judges only have the authority to consider matters that are
delegated to them by the Attorey General and the Immigration and Nationality Act. Matter of
Werer, 25 I&N Dec. 45, 46 (BIA 2009); see also 8 C.F.R. 1003.lO(b). The Court is not
authorized to simply grant relief to a Respondent. The Respondent has the burden of proof to
establish eligibility fr some fr of lawfl status or defnse to removal. 8 C .F.R. 1240.8( d).
As discussed in its January 26, 2011 order, the Court has engaged in a lengthy inquiry at several
hearings to deterine whether the Respondent is eligible fr any frm of relief The Cour has
detenined that the Respondent does not have any family based immigration options at this time
and is not eligible fr Cancellation of Removal fr Certain Non Permanent Resident (EOIR-428)
as he does not have a qualifying relative as required under INA 240A(b)( I). While the
Respondent has pursued immigration options through the fling of various I- l 40s as an alien of
extraordinary ability, no 1-140 has been approved at this time. The Respondent is not eligible fr
lawfl status until an 1-140 has been approved. The Respondent is assering that based on the
online system. one of his l-140s is still pending however he does not deny that several have been
previously denied and this 1-140 is similarly one based on a national interest waiver which is
only granted to a small percentage of individuals. In his motions, the Respondent has continued
to asser that he has not receive proper review of his 1-140 however the Court does not have
jurisdiction to review an 1-140. At this point as there is no evidence that Respondent has a
pending 1-140 that is prima fcie approvable, the Court fnds there is no basis to grant frher
continuances in this case to allow fr adjudication of any additional l-l 40s.
The Cour had previously suggested to the Respondent that he consider trying to have his student
visa reinstated. At the time this issue initially arose, Respondent was represented by counsel
who would have been able to flly evaluate and determine if in fct Respondent was eligible to
seek reinstatement. Since Respondent is again pro se, the Cour gave him additional time to
pursue this option. Due to the Cour now fnding that the Respondent engaged in unauthorized
employment and the fct the respondent has indicated immigrant intent through the fling of his
I-l 40s and 1-485, the Court does not believe he is likely to succeed in seeking reinstatement.
Further, the Respondent has not submitted any documents fom the DSO fr Ohio State
University in suppor of a request fr reinstatement. Accordingly, as it does not appear the
Respondent is prima fcie eligible fr reinstatement of his student vis' based OD the record.
Therefre the Court will not grant the Respondent further continuances r this'pu
1
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At the hearing held on August 2, 2010, Respondent indicated he had no fear of being persecuted
if retured to Bangladesh. Further, at the time of his hearings, the Respondent did not possess or
present a valid passport that would allow him to be granted voluntary deparure. Therefre, the
Court fnds that at this point the Respondent has not established eligibility fr any fn of relief
or lawfl status in the United States.
As discussed above, the Cour fnds that DHS has met its burden of proof in establishing
allegation 4, as amended by the I-261, by clear and convincing evidence. The Court frther fnds
that OHS properly amended the allegations as they are allowed to do so at any time during
proceedings. See 8 C.F.R. 1003.30 and 8 C.F.R. 1240.IO(e). The allegations are the basis
fr, and are consistent with, the sole charge of removability fled against the Respondent under
INA 237(a)( 1 ){C){i). The Cour therefre fnds that the Respondent is removable as charged
due to his admission that he engaged in unauthorized employment. As the Cour frther fnds
that the Respondent has not established eligibility fr any frm of relief, the Cour has no choice
but to order the Respondent removed to Bangladesh.
ORDERS
Accordingly it is hereby order that:
I . Respondent's Motions to Terminate and Grant a Relief are DENIED.
2. Factual a1Jegation #4 as stated on the 1-261 is SUSTAINED as it has been established by
clear and convincing evidence.
3. The Respondent is REMOVABLE as charged under INA 237(a)( l )(C)(i).
4. Respondent is ordered removed to Bangladesh based on the sole charge on the NT A.
Alison M. Brown
Immigration Judge
APPEAL RIGHTS
Respondent is hereby infrmed that he has the right to appeal the Court's decision to the Board
of Immigration Appeals. To do so, he must fle Form EOIR-26 within 30 calendar days which
would be April 28, 2011. If the time period expires and no appeal

P Jed and received by

the Board oflmmigration Appeals, the decision of this Court becomes fnal.'he.Board of
Immigration Appeals must receive the Form EOIR-26 on or befre thatte Ahed to this
order is a copy of the Respondent's appeal rights and instructions
.R. 1003.38,
1003.39, 1240.10(a)(3).


Order A079 687 751
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