U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suue 2000

Falls Church, Virgm1a 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Koloko, Annick T. OHS/ICE Office of Chief Counsel BUF
Law ofiice of Annick Koloko 130 Delaware Avenue, Room 203
266 elmwood avenue Buffalo, NY 14202
suite 161
buffalo, NY 14222

Name: NORCILUS, WIDENS A 072-041-297

Date of this notice: 6/2/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
O'Connor, Blair
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Widens Norcilus, A072 041 927 (BIA June 2, 2017)
U!S. Depa'rtment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A072 041 297 - Buffalo, NY Date:

JUN 2 2017
In re: WIDENS NORCILUS
-

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Annick T. Koloko, Esquire

CHARGE:

Notice: Sec. 237(a)(l )(A), I&N Act [8 U.S.C. 1227(a)(l )(A)] -

Inadmissible at time of entryJ or adjustment of status under section
212(a)(7)(A)(i)(I),l&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document (sustained)

Lodged: Sec. 212(a)(7)(A)(i)(I),l&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -

Immigrant - no valid immigrant visa or entry document (sustained)

APPLICATION: Termination; adjustment of status

The respondent, a native and citizen of Haiti, appeals a November 10, 2015, decision in which
an Immigration Judge found him removable as charged and ineligible to adjust his status in
proceedings because he is an arriving alien. The appeal will be sustained in part and the record
will be remanded.

The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R.
1003. l (d)(3)(i). We review issues of law, discretion, or judgment de novo. 8 C.F.R.
1003. l (d)(3)(ii).

This case has a lengthy procedural history. On February 29, 2008, the Department of
Homeland Security ("OHS") issued a Notice to Appear ("NTA"), alleging that the respondent was
admitted to the United States on June 17, 1992, and charging that he is removable under section
237(a)( l )(A) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(l )(A), because he was
not then in possession of a valid immigrant visa or entry document (Exh. 1). See section
212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. 1182(a)(7)(A)(i)(I). Subsequently, on May 14, 2008, the
OHS issued Additional Charges oflnadmissibility/Deportability (Form 1-261) (Exh. l A). In lieu
of the factual allegation in the NTA that the respondent was admitted to the United States on June
17, 1992, the OHS alleged that the respondent was paroled into this country to seek asylum on that
date (Exh. l A). The OHS thus alleged that the respondent is an arriving alien (Exh. l A).
Moreover, the OHS charged that the respondent was removable under section 212(a)(7)(A)(i)(I)
of the Act because he did not possess a valid immigrant visa or entry document at the time of his
application for admission (Exh. l A).

Cite as: Widens Norcilus, A072 041 927 (BIA June 2, 2017)
..

. , ,

A072 041 297

An Immigration Judge in Hartford, Connecticut administratively closed the proceedings on

July 9, 2008. On April l , 2013, the respondent filed a motion to reopen and terminate so
United States Citizenship and Immigration Services ("USCIS") would have jurisdiction to
adjudicate his application for adjustment of status (Form 1-485), which was based on an approved
visa petition (Form 1-130) filed on his behalf by his United States citizen wife (Exh. 2). See
section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a); 8 C.F.R.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

1245.2(a)( l )(ii). The respondent also filed a motion to change venue to Buffalo, New York,
which was granted on May 13, 2013.

The respondent first appeared before the Immigration Judge who issued the decision under
review on December 11, 2013. The Immigration Judge granted a continuance and on
January 23, 2014, he granted the motion of the attorney who had filed the motion to terminate on
behalf of the respondent to withdraw as his representative (Exh. 3). The motion to terminate was
never adjudicated. The respondent appeared pro se on January 29, 2014, and the
Immigration Judge continued the proceedings until May 12, 2015, for a hearing on the
respondent's asylum application, which had been pending since 1992.

In the meantime, the respondent retained new counsel, who filed a second motion to terminate
(Exh. 4). The motion includes evidence that on June 22, 2012, USCIS administratively closed the
respondent's 1-485 on jurisdictional grounds because he is in removal proceedings (Exh. 4,
Tab E). See 8 C.F.R. 1245.2(a)( l )(i). The respondent requested termination of these proceedings
without prejudice so he could pursue adjustment of status before USCIS.

In the decision under review, the Immigration Judge held that he lacked jurisdiction to
determine the respondent's eligibility for adjustment of status because he is an arriving alien
(l.J. at 11). See 8 C.F.R. 1245.2(a)( l )(ii). The Immigration Judge concluded that in light of this
ruling, it was unnecessary to adjudicate the respondent's motion to terminate (I.J. at 11).

On appeal, the respondent argues that the Immigration Judge erroneously found him to be an
arriving alien, as alleged in the Form 1-261 (Exh. IA}. We disagree. The record reflects that the
respondent was paroled into the United States on June 17, 1992, to pursue asylum (I.J. at 11;
Exh. 1A; Exh. 4, Tab A). See section 212(d)( 5) of the Act. We affirm the ruling that the respondent
is thus an arriving alien pursuant to 8 C.F.R. 1001.1 (q) (I.J. at 11). As the respondent observes,
8 C.F.R. 1001.1 (q) exempts from the definition of "arriving alien" certain aliens who, like him,
were paroled into the United States before April 1, 1997. However, we agree with the
Immigration Judge that, by its plain language, this exception only applies to exempt such aliens
from the definition of "arriving alien" for purposes of not subjecting them to expedited removal
proceedings under section 235(b) of the Act, 8 U.S.C. 1225(b) (I.J. at 11). See Matter ofBriones,
24 l&N Dec. 355, 361 (BIA 2007) (holding that the "touchstone [of statutory interpretation] is the
plain language of the statute" and that the Board rarely looks "past the unambiguous meaning of
statutory language").

Concerning the respondent's removability, the Immigration Judge sustained the charges in
both the NTA and the Form 1-261 (l.J. at 10). In light of our affirmance of the determination that
the respondent is an arriving alien, we uphold the finding of removability pursuant to the
inadmissibility ground at section 212(a)(7)(A}(i)(I) of the Act (I.J. at 10; Exh. IA). On the other

2
Cite as: Widens Norcilus, A072 041 927 (BIA June 2, 2017)
A07 2 041 297

hand, since advance parole does not constitute an admission to the United States, we hold that the
Immigration Judge erroneously sustained the charge under the deportability ground at section
237(a)(l)(A) of the Act (I.I. at 10; Exh. 1). See lbragimov v. Gonzales, 476 F.3d 125
(2d Cir. 2007); Matter ofG-A-C-, 22 l&N Dec. 83 (BIA 1998).

With regard to relief from removal, we affirm the ruling that, as an arriving alien who does not

Immigrant & Refugee Appellate Center, LLC | www.irac.net

come within the limited exception of being an alien who was placed in removal proceedings after
returning to the United States pursuant to a grant of advance parole to pursue a previously filed
adjustment application, the respondent cannot apply for adjustment of status in these proceedings
(l.J. at 11). See 8 C.F.R. 1245.2(a)(ii); Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009).
Nevertheless, the respondent presented evidence in his second motion to terminate that he is prima
facie eligible to adjust status before USCIS (Exh. 4). Furthermore, as he notes on appeal, the OHS
expressed its non-opposition to his second motion to terminate (Exh. 5). We therefore agree with
the respondent that the Immigration Judge erred by not adjudicating his motions to terminate
(l.J. at 10-11). As a result, we will remand the record for the Immigration Judge to determine in
the first instance whether termination of these proceedings or administrative closure is warranted
so the respondent may pursue adjustment of status before USCIS. See Matter of Yauri, 25 I&N

Dec. 103, 11ln. 8 (BIA 2009).

On remand, the parties should be afforded the opportunity to present additional evidence and
argument. Also, if termination is not granted, the respondent must be permitted to apply for any
form of relief that may be available to him in these removal proceedings.

Accordingly, the following orders are entered.

ORDER: The appeal is sustained in part and the section 237(a)(l)(A) charge is dismissed.

FURTHER ORDER: The record is remanded for further proceedings and the entry of a new
decision consistent with this opinion.

3
Cite as: Widens Norcilus, A072 041 927 (BIA June 2, 2017)
 , ..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

In the Matter of:

Immigrant & Refugee Appellate Center, LLC | www.irac.net

NORCILUS, Widens
IN REMOVAL PROCEEDINGS
A# 072-041-297

Respondent

CHARGES: INA 237(a)(l)(A) Inadmissible at Time of Entry or of

Adjustment of Status or Violates Status

INA 212(a)(7)(A)(i)(I) Documentation Requirements

MOTIONS: Motion to Terminate Proceedings Without Prejudice

APPLICATIONS: INA 245(a) Adjustment of Status of Nonimmigrant

to That of Person Admitted for
Permanent Residence

ON BEHALF OF RESPONDENT ON BEHALF OF THE DHS

Julie Kruger, Esq. Brandi M. Lohr, Esq.
Richards & Kruger Assistant Chief Counsel
2731 South Park Avenue 130 Delaware Avenue, Suite 203
Lackawanna, NY 14218 Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The charges that Widens Norcilus ("Respondent") is subject to removal pursuant to INA
237(a)(l)(A) and INA 212(a)(7)(A)(i)(I) are SUSTAINED. Respondent's motion to

terminate proceedings without prejudice is DENIED. Respondent application for adjustment of
status is DENIED. Respondent is ordered removed to HAITI.

I. FACTS AND PROCEDURAL HISTORY

On April 4, 2008 the Department of Homeland Security ("DHS") served Respondent a

Notice to Appear ("NTA") alleging:

[l] You are not a citizen or national of the United States;

A# 088-741-127
 [2] You are a native of Haiti and a citizen of Haiti;

[3] You were admitted to the United States at Miami, FL on or

about June 17, 2002;

[4] You did not then possess or present a valid immigrant visa,

Immigrant & Refugee Appellate Center, LLC | www.irac.net

reentry permit, border crossing identification card, or other
valid entry document required by the Act.

Exh. 1. Based on these allegations, DHS charged Respondent subject to removal from the United
States pursuant to INA 237(a)( l )(A) and INA 212(a)(7)(A)(i)(I). Id.

On May 14, 2008, DHS served Respondent Additional Charges of

Inadmissibility/Deportability (Form I-261) alleging in lieu of the charges set forth in the original
charging document:

[ 3] You arrived in the United States at Miami on June 17, 1992 and
were paroled to seek asylum, which application has been referred
to the Immigration Court;

[ 4] You are an arriving alien who does not possess a valid immigrant
visa, reentry permit, border crossing identification card, or other
valid entry document.

Exh. IA. Based on these allegations, DHS charged Respondent subject to removal from the
United States pursuant to INA 212(a)(7)(A)(i)(I). Id.

Respondent first appeared before the Buffalo Immigration Court (''the Court") on
December 11, 2013. Respondent's counsel made an oral motion to withdraw as counsel. The
Court granted Respondent a continuance in order to allow Respondent to confer with his counsel
and to allow Respondent's counsel to make a written motion to withdraw if necessary.

Respondent again appeared before the Court pro se on January 29, 2014. The
government noted that Respondent had an asylum application pending.

Respondent filed a motion to terminate proceedings without prejudice on April 7, 2015 in

order to pursue adjustment of status.

Respondent again appeared before the Court on May 12, 2015 for a merits hearing. The
Court indicated its intent to deny Respondent's motion to terminate. Through counsel,
Respondent indicated that he previously failed to appear at a hearing because he did not have
notice of that hearing and Respondent's case was administratively closed. Respondent indicated
that the case was then reopened upon Respondent's motion. Respondent noted that his counsel
did not appear for his first hearing before the Court in 2013 and Respondent was granted a single
continuance at that time. Respondent indicated that his counsel withdrew two or three weeks

2
A# 088-741-127
 ------ ---- ------

before his hearing on January 29, 20 1 4 and Respondent appeared prose at that hearing and was
scheduled for a merits hearing at that time. Respondent indicated that he was granted a single
continuance when he appeared pro se before the Court. Respondent indicated that he was
scheduled for an individual hearing without counsel present, without pleadings being taken, and
without being advised of the relief that was available to him. Respondent indicated that a copy
of Respondent's Form I- 1 30, Petition for Alien Relative, had been received by both the Court
and the government. The Court indicated that it had already read over the entirety of

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Respondent's motion to terminate and denied it. The Court indicated that Respondent's case has
been pending for seven years and the Court would go forward with the individual hearing as
scheduled.

Respondent, through counsel, conceded proper service of the NTA. Respondent admitted
allegations 1 arid 2 in the NTA, denied allegations 3 and 4 in the NT A, and denied the charge of
removability. Respondent requested relief in the form of adjustment of status, cancellation of
removal, and Temporary Protected Status ("TPS") and requested a continuance in order to
prepare applications for the requested forms of relief. The Court denied Respondent's request
for a continuance and indicated that it would proceed with a hearing on Respondent's application
for asylum dated December 1 5, 1 992. Respondent moved to withdraw his application for
asylum. The Court refused to remand Respondent's asylum application to U.S. Citizenship and
Immigration Services ("USCIS"). Respondent reiterated his request for adjustment of status.
The Court inquired as to whether Respondent had previously requested adjustment of status.
Respondent indicated that the individual hearing was the first occasion on which pleadings were
taken in Respondent's case. Respondent indicated that in Respondent's motion to reopen and
Respondent's motion to terminate filed by his previous counsel, Respondent requested relief in
the form of adjustment of status, filed a copy of the approved Form I- 1 30 Petition for Alien
Relative, and the corresponding approval notice, and filed a copy of the Form I-485 Application
to Register Permanent Residence or Adjust Status, which was filed with USCIS and was
administratively closed because USCIS did not have jurisdiction. The Court reiterated that it did
not find good cause for any further continuance and the matter would go forward as scheduled.

The Court indicated that it had Form I-26 1 Additional Charges of

Inadrtlissibility/Deportability dated May 1 4, 2008 in its file. The government inquired whether
Respondent had denied allegations 3 and 4 in the NTA or the amended allegations 3 and 4 in
Form I-26 1 . Respondent indicated that he did not have a copy of Form I-26 1 . The government
indicated that Form I-26 1 was served on Respondent by regular mail at 1 730 State Street
Apartment 207 Camden, Connecticut 065 1 7. The government indicated that Form I-26 1 was not
returned to the OHS as undeliverable. Respondent indicated that he has a copy of Respondent's
file from USCIS and it does not appear to contain Form I-26 1 . Respondent indicated that he
does not have a copy of the NT A. Respondent indicated that he did not reside at the address that
the NTA and Form I-26 1 were mailed to at that time. The Court indicated that there is a
presumption of delivery upon mailing and determined that Respondent was served with the NT A
and Form I-26 1 upon mailing. Respondent indicated that he did have a copy of the NTA but did
not have a copy of Form I-26 1 . Respondent indicated that he did not request to see the Court's
file at the Court Clerk's office. He indicated that he requested a copy of the Court's file via
FOIA and did not see a copy of Form I-26 1 in the FOIA. The government indicated that a note

3
A# 088-741-127
 '

in the government's file stated that on March 4, 2014 the file was sent to the FOIA unit for a
response to a request.

Respondent indicated that he did not receive an evidence package from the government
on April 27, 2015. The Court indicated that it has a certificate of service for the government's
package in its file indicating that the evidence package was sent to Respondent. The Court stated
that the certificate of service indicates that the package was served by mail at 2731 South Park

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Avenue. Respondent indicated that that was the correct address for Respondent's counsel but
Respondent's counsel did not receive the government's evidence package. Respondent indicated
that Respondent's prior counsel did provide Respondent's current counsel with a copy of her file,
which contained the original NTA. Respondent reiterated that he conceded service of the
original NTA but denied receipt of Form 1-261.

The Court noted that Respondent's motion to terminate indicates that a number of
continuances were granted to Respondent. Respondent indicated that the case had only been
recently reopened on Respondent's own motion, his hearing in December was his first hearing,
he was granted a short continuance, and he clearly indicated on the record that he did not
understand the nature of the proceedings. Respondent indicated his belief that he should have
been granted an additional continuance at his most recent master calendar hearing. The Court
reiterated its intent to proceed with the merits hearing. Respondent noted for the record his
objection to proceeding with the merits hearing as scheduled on May 12, 2015. The Court
provided Respondent with a copy of the Form 1-261 in open court.

Respondent admitted amended allegation 3, denied amended allegation 4, and denied the
charge of removability in Form 1-261. Respondent reiterated his intent to withdraw his
application for asylum and to request adjustment of status, cancellation of removal, and
Temporary Protected Status. Respondent also reiterated his objection to proceeding with
Respondent's individual hearing as scheduled. Respondent indicated that he decided to
withdraw his application for asylum one day prior to the scheduled individual hearing.
Respondent requested a continuance in order to file an interlocutory appeal on Respondent's
motion to terminate. The Court denied Respondent's motion. The government noted that it did
not oppose Respondent's motion to terminate as Respondent is an arriving alien who is eligible
for adjustment of status. The government also indicated that it did not oppose Respondent's
motion for a continuance to allow the Respondent to pursue Temporary Protected Status ("TPS")
aQd cancellation of removal as it concluded that it appears he is also eligible for those forms of
relief. The Court inquired whether Respondent had previously filed an application for TPS and
Respondent indicated that he had not filed such an application. The Court stated that as
Respondent's asylum application was withdrawn, and Respondent has only filed ari application
for adjustment of status with the Court, Respondent's application for adjustment of status is the
only application before the Court.

The Court indicated that Respondent's counsel began representing Respondent in 2013.
Respondent's counsel stated that she was retained by Respondent in February of 2015 and was
retained for a consultation only in 2013. The Court indicated that Respondent's counsel had
some knowledge of the case since 2013 even though she was only retained in 2015. The Court
stated that the additional time Respondent's counsel was aware of the case lends support to the

4
A# 088-741-127
 Court's conclusion that Respondent has had sufficient time to prepare for his individual hearing.
Respondent's counsel stated that she does not begin preparing a case until an individual
affirmatively indicates that he or she would like her to begin working on the case. Respondent's
counsel indicated that she has a copy of Respondent's 1-485 application for adjustment and filed
it with her motion to terminate. Respondent's counsel indicated that she did not request to see
the Court's file at the Court Clerk's office because she had already obtained those documents via
a FOIA request.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The government indicated that it believes Respondent is not eligible to adjust status
before the immigration judge, because Respondent is an arriving alien, and per 8 C.F.R.
245.2(a)(ii) an immigration judge does not have jurisdiction over an adjustment of status
application for an arriving alien. The government moved to pretermit Respondent's application
for adjustment of status before the immigration judge. Respondent indicated that Respondent
was paroled into the United States and is not an arriving alien and is therefore eligible to adjust
status before the Court. Respondent proffered Respondent's wife's testimony and indicated that
Respondent's wife would corroborate Respondent's testimony. The Court indicated that the
government had raised a jurisdictional issue. The Court granted the government's motion to
pretermit and indicated that the Court does not have jurisdiction over Respondent's application
for adjustment of status. The Court found that removability was established by clear, convincing
and unequivocal evidence. Respondent testified in support of his application for adjustment of
status. At the conclusion of testimony, the Court closed the record and indicated that it would
memorialize its decision in this opinion.

II. DOCUMENTARYEVIDENCE

The following documents are included in the record of proceedings; however, not all
exhibits are admitted into evidence:

Group
Exhibit 1: Notice to Appear, dated May 9, 2008

Group
Exhibit 2: Respondent's Motion to Reopen and Terminate Removal Proceedings and
Remand to USCIS and Supporting Documents
2A: Order Administratively Closing Proceedings
28: Notice of Approval for Form 1-130, Petition for Alien Relative
2C: USCIS receipt for 1-485, application for adjustment
2D: Form 1-485, application for adjustment, filed with USCIS

Exhibit 3: Motion to Withdraw as Counsel filed by Shadia Tadros, Esq. (Jan. 9, 2014)

Group
Exhibit 4: Respondent's Motion to Terminate Proceedings Without Prejudice and
Supporting Documents

5
A# 088-741-127
 4A: Copy of Respondent's Form 1-94, Arrival/Departure Record, evidencing that
Respondent was lawfully paroled into the United States on June 17, 1992, at the
Miami, FL port of entry
48: Copy of Form 1-589, Request for Asylum in the United States (Dec. 16, 1992)
4C: Copy of Respondent's Certificate of Marriage Registration, evidencing his
marriage to his United States citizen spouse, Magalie Louis Charles Norcilus on
August 17, 1996 in Syracuse, New York

Immigrant & Refugee Appellate Center, LLC | www.irac.net

4D: Copy of Form 1-130, Petition for Alien Relative, filed by Respondent's U.S.
citizen wife on his behalf and approved on November 4, 1997
4E: Copy of Form I-797C, Notice of Action approving Form 1-130, Petition for Alien
Relative, filed by Respondent's U.S. citizen wife on June 26, 2012 and copy of
the Notice by USCIS, evidencing that Respondent's Form 1-485, application for
adjustment, was administratively closed on June 22, 2012
4F: Copy of State of New York, County of Onondaga, City of Syracuse, Certificate of
Disposition, evidencing that Respondent pied guilty to NYPL 240.26,
d
Harassment in the 2 Degree, and was sentenced to a conditional discharge of
one year and an order of protection for one year
4G: Copy of the Respondent's Form 1-485, application for adjustment, G-325 A,
Biographic Information, and 1-864, Affidavit of Support, signed by the
Respondent's U.S. citizen wife, and previously filed with USCIS

Group
Exhibit 5: DHS's Memorandum stating that DHS does not oppose Respondent's motion to
terminate and supporting documents
SA: Order oflmmigration Judge Michael W. Straus (Jul. 9, 2008)
58: Additional Charges oflnadmissibility/Deportability (Form 1-261) (May 14, 2008)

Group
Exhibit 6: Respondent's Proposed Evidence (Jul. 24, 2015)
6A: Copy of Freedom of Information Act request from the U.S. Department of Justice,
Executive Office for Immigration Review (Jan. 14, 2014)
68: Copy of Freedom of Information Act request from . the U.S. Department of
Homeland Security, U.S. Citizenship and Immigration Services (Mar. 18, 2014)
6C: Copy of Memorandum of DHS's non-opposition to Respondent's Motion to
Terminate, with exhibits including Form 1-261, Additional Charges of
Inadmissibility/Deportability
6D: Copy of final response to a Freedom of Information Act request from USCIS
6E: Copy of the telephone log of Julie Kruger, Esq. (May 12, 2015)
6F: Copy of the telephone log of the Legal Assistant of Julie Kruger, Esq., Ellen
Witoff (May 12, 2015)
6G: Copy of Transaction Receipt (Dec. 20, 2013)
6H: Copy of Transaction Receipt (Feb. 18, 2015)

III. TESTIMONIAL EVIDENCE

Testimony of Respondent on May 12, 2015

6
A# 088-741-127
 A. Direct Examination of Respondent

Respondent's Entry into the US.

Respondent testified that he was born in Haiti. He stated that he first came to the United
States on June 17, 1992. He stated he was a member of an organization and "when Aristide was
given a coup d'etat, they were after us to kill us." He stated that two people, including

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Respondent, were part of the organization. He stated that the other individual died, so he had to
"save himself." He stated that he escaped to the woods so that he would not be killed and spent
fifteen days there and then found one of his cousins in the woods. He stated that other men who
were part of other organizations were also escaping from Haiti, so he escaped with them.

Respondent testified that he escaped from Haiti and traveled in a boat for five days when
the U.S. Coast Guard rescued him and the other passengers and took them to "Guantanamo." He
stated that he spent about three months in "Guantanamo" and an immigration judge interviewed
"them." He testified that he entered the U.S. on "June 17" on a flight from "Guantanamo" to
Miami. He testified that when he arrived at the airport in Miami he was given a social security
number and an 1-94. He stated that he was permitted to enter the U.S. because he explained to
the U.S. the reasons he needed to enter the country. He stated that he was given documentation to
enter the U.S. in order to apply for asylum. He testified that he applied for asylum within three
months after he entered the U.S. He stated that he was in touch with individuals who were
involved in his political activities in Haiti for three years after his entry into the U.S., but he then
changed his phone number and lost touch with those individuals. He stated that he is not
involved in any political activities related to Haiti in the U.S. He stated that he has not departed
from the U.S. since his entry in 1992.

Respondent's Family in the US.

Respondent testified that he is currently married and has only been married once. He
stated that his wife's name is Magalie Natilus and she is 43 years old. He stated that he met his
wife at age 22 when he helped translate for her at medical appointments. He stated that he began
dating his wife in August of 1994 and dated his wife for two years before they were married. He
testified that he proposed to his wife on August 24, 1996. He stated that he married his wife at
City Hall on August 24, 1996. He stated that he began living with his wife in 1995, a year before
they were married because he "needed help." He stated that he and his wife lived at 797
Butternut Street. He stated that he did not know his wife's immigration status at that time, but he
knew she came from Haiti and was "dealing with the same things." He stated that his wife was
not a U.S. citizen at that time. He stated that when they were married at City Hall, his parents
did not attend because they wanted them to marry in a church, but at the time he did not have
enough money for a church wedding. He stated that he and his wife have two children, Nicolas
John Norcilus, age 8, and Wedlene Esther Norcilus, age 6. He stated that both of his children
attend a public school called Franklin. He stated that Nicolas is in third grade and Wedlene is in
first grade. He stated that both of his children speak only English.

B. Cross-Examination of Respondent

Respondent's Entry into the US.

7
A# 088-741-127
 Respondent testified that when he left Haiti by boat, his intent was to "save his life." He
testified that when he arrived in the U.S. in 1992, his intent was to live in the U.S. because it was
a "good country." He admitted that when he arrived in the U.S. in 1992, he had an 1-94 and
social security number, which allowed him to live in the U.S. He denied that when he arrived in
the U.S., his 1-94 had a thirty day expiration date. He stated that the document did not contain
any date. He stated that officials gave him an 1-94 and told him to apply for a "green card." He
admitted that he did not have any documentation that permitted him to live in the U.S. aside from

Immigrant & Refugee Appellate Center, LLC | www.irac.net

the 1-94. He stated that his lawyer, Betsy Stevens, applied for paperwork to allow him to stay in
the U.S. because ''things were really hard" at the time. He admitted that currently his intent is to
stay in the U.S. permanently because his wife and children live in the U.S. He admitted that he
does not have a "green card" or other documentation that would allow him to stay in the U.S.
permanently.
I

Questioning by the Immigration Judge

The Immigration Judge inquired when Respondent moved from 1730 State Street
Apartment 407 Camden, Connecticut. Respondent testified that he lived at that address for five
years and changed his address in August or September of 2005. He testified that he did not file a
change of address form with the Court when he moved. He denied living at the State Street
address in 2013. He admitted recalling his appearance at the Court in 2013. He denied recalling
that he informed the Court that he lived at 1730 State Street at his hearing in 2013. He stated
that he moved to Syracuse from West Haven, Connecticut in 2010 because his wife's mother was
ill. He stated that he informed the Court in West Haven of his address in 2010. He stated.that
there was an earthquake in Haiti and his child died. He testified that when he went to the court
in Hartford and told them he needed to go to the funeral, he gave the court his address, but he did
not go to the funeral. He stated that he did not fill out any paperwork at that time, but he did
speak with an immigration officer who gave him an appointment to come back with his passport
to get a stamp to go to Haiti.

C. Redirect Examination of Respondent

Respondent's Family

Respondent testified that his children are "God's gift," "they make [him] very happy,"
and they are "very smart kids at school." He stated that the only time that he and his wife have
lived apart during their marriage was when he lived in Connecticut for about six months for
work. He testified that he and his wife bought a house together in 1999, but they had tenants
who did not pay their rent on time, and since he did not have much work at the time, "things did
not go so well." He stated that he and his wife had a joint bank account in 2009 and they
currently have a joint account. He stated that he and his wife own a 1996 Nissan Pathfinder. He
stated that he and his wife only own one vehicle because his wife does not drive. He stated that
his wife is listed on his car insurance. He testified that on a typical day in his household he
wakes up at 5 a.m. to make breakfast for his children, then he gives his children a bath, helps
them with their homework, gets them ready for school, picks up his wife, and then goes to work.
He stated that his wife works a nightshift from 11 p.m. to 7 a.m. He stated that he works for
Family Energy, an electric company, and works from 9 a.m. to 10:30 p.m. because he is paid
based on commission. He testified that he earns $300 to $500 per week. He testified that when

8
A# 088-741-127
 (

he arrives home in the evening, his wife is home. He stated that he "rushes home" so that his
wife can get to work on time. He stated that his wife works for Upstate Hospital as a
housekeeper. He stated that his wife earns a salary of$29,000 per year.

Respondent testified that he is religious and attends a Baptist church every Sunday with
his wife and children. He stated that his family enjoys going to the mall and the movies. He
stated that he knows his wife's mother and step-father very well. He stated that his wife's

Immigrant & Refugee Appellate Center, LLC | www.irac.net

mother passed away two months ago and he attended her funeral. He testified that he had three
children in Haiti, who were born before his marriage to his wife, but two of his children died in
"the earthquake." He stated that his children in Haiti all have the same mother but he was not
married to their mother. He testified that his wife is aware that he had three children before their
marriage. He stated that his wife has never met his children in Haiti, but she has spoken to them
on the phone. He stated that his wife has been a U.S. citizen since 2000. He testified that he is a
member of the Mason organization in the U.S. He stated that he supported his children in Haiti
financially after arriving in the U.S. and sent them$500 to$1,000 every two weeks.

Respondent's Conviction

Respondent testified that he was arrested when he rented his home to handicapped
individuals. He testified that his wife had gone to work and one of his tenants asked Respondent
for Aspirin and he told the tenant that he did not have Aspirin. He stated that the police arrived
at his home about an hour later and questioned him. He stated that the police told him that "the
girl" said that he had "touched her." He testified that the police brought him to jail and he stayed
in jail overnight. He stated that he was represented by a lawyer who told him to plead guilty so
that he would be released from prison. He stated that at that time "(he] did not understand the
situation of the country." He stated that the court informed him that if he did not "have
problems" for a year, the court would "drop the case." He testified that he was not guilty and did
not touch 'the girl." He testified that aside from the one night that he slept in jail, he was not
sentenced to spend any additional time in prison. He testified that he was not arrested again after
that occasion.

Questioning by the Immigration Judge

Respondent indicated that he was arrested for harassment.

D. Continuation of Direct Examination of Respondent

Respondent indicated his intent to amend his Form I-485, application for adjustment,
which indicates that Respondent has never been arrested. Respondent indicated that he is not
aware of what he was originally charged with or what he pied guilty to on the occasion that he
was arr ested and convicted. He testified that he spoke limited English at that time. He stated
that his attorney, a public defender, told him to plead guilty. He testified that he met his attorney
on the morning of his hearing and the attorney did not speak Creole so he spoke to him in
English. He stated that he is not sure if the public defender was aware of his immigration status
in the U.S. Respondent testified that if he is granted relief from removal, he intends to continue
to reside with his wife and children in the U.S. He stated that he has been married for almost
twenty years.

9
A# 088-741-127
 (

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court has considered the entire record carefully. All evidence and testimony has
been considered, even if not specifically addressed in the decision below.

A. Charges of Removability

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The Court finds that Respondent is not in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other valid entry document or passport or
other suitable travel document. Therefore, the Court finds that Respondent is removable pursuant
to INA 237(a)(l)(A) (inadmissible at time of entry or of adjustment of status or violates status)
and INA 212(a)(7)(A)(i)(I) (documentation requirements).

B. Motion to Terminate

A party seeking termination of removal proceedings must demonstrate good cause for
such termination. Matter of Sanchez-Herbert, 26 l&N Dec. 43, 45 (BIA 2012) (citing Matter of
W-C-B-, 24 I&N Dec. 118, 122 (BIA 2007)) ("Once jurisdiction vests with the Immigration
Judge, neither party can compel the termination of proceedings without a proper reason for the
Immigration Judge to do so."); see also Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998)
(stating that the regulation pertaining to dismissal of removal proceedings "contemplates not just
the automatic grant of a motion to terminate but an informed adjudication by the Immigration
Judge . . . based on an evaluation of the factors underlying the .. .motion"). In the context of a
motion to terminate to allow the alien to pursue adjustment of status with USCIS, "good cause"
is usually established through proof that the alien's application is likely to be approved. In all
cases, such evidence includes an approved Form 1-130. See INA 245(a).

According to 8 C.F.R. 1245.2(a)(ii), "[i]n the case of any alien who has been placed in
removal proceedings, the immigration judge does not have jurisdiction to adjudicate any
application for adjustment of status filed by the arriving alien unless:

(A) The alien properly filed the application for adjustment of status with USCIS while
the arriving alien was in the United States;

(B) The alien departed from and returned to the United States pursuant to the terms of
a grant of advance parole to pursue the previously filed application for adjustment
of status;

(C) The application for adjustment of status was denied by USCIS; and

(D) OHS placed the arriving alien in removal proceedings either upon the arriving
alien's return to the United States pursuant to the grant of advance parole or after
USCIS denied the application." .

The exception to the jurisdictional rule stated in 8 C.F.R. 1245.2(a)(ii) applies only to certain
aliens who had applied for adjustment of status while in the United States, traveled abroad, and

10
A# 088-741-127
 returned pursuant to a grant of advance parole, and whose adjustment application had
subsequently been denied by the district director. Only aliens applying for adjustment in these
limited circumstances could renew an application in removal proceedings." Martinez-Montalvo,
24 l&N at 780-81 (internal citations omitted); see also Matter of Yauri, 2 5 l&N Dec. 103, 106
(BIA 2009) (citing 8 C. F.R. 245.2(a)( l ) , 1245.2(a)(l)(ii); 71 Fed. Reg. at 27,591 -92 ) .

In addition, per 8 C.F.R. 1000.l(q) , "[a]n arriving alien remains an arriving alien even

Immigrant & Refugee Appellate Center, LLC | www.irac.net

if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated
or revoked. However, an arriving alien who was paroled into the United States before April I,
1997, or who was paroled into the United States on or after April 1 , 1997, pursuant to a grant of
advance parole which the alien applied for and obtained in the United States prior to the alien's
departure from and return to the United States, will not be treated, solely by reason of that grant
of parole, as an arriving alien under section 235(b)( l )(A)(i) of the Act." INA 212(d)(5) states,
"[t]he Attorney Generai may ... in his discretion parole into the United States temporarily under
such conditions as he may prescribe only on a case-by- case basis for urgent humanitarian reasons
or significant public benefit any alien applying for admission to the United States, but such
parole of such alien shall not be regarded as an admission of the alien ... "

Although the definition of arriving alien in 8 C.F.R. 1000.l(q) makes an exception for
an alien who was paroled into the United States before April 1 , 1997, this exception only
exempts those aliens from the definition of "arriving alien" for the purpose of excluding them
from expedited removal proceedings under 8 U.S.C. 122 5(b) . See Clairence Nzelle Chambers,
A77 803 262 (BIA July 2 5, 2006); Angelina Codina, A76 496 932 (BIA April 20 , 2006); John
Kojo Shoetan, A78 21 8 794 {BIA December 2 8 , 200 5) .

In the instant case, Respondent was paroled into the United States on June 17, 1992 in
order to pursue an asylum claim. See (Exhs. 1 , 4A). He has not left the United States since that
time pursuant to a grant of parole by the U.S. government or in any other manner. Supra at 7.
Therefore, Respondent is an arriving alien who does not fall within the regulatory exception for
arriving aliens who may pursue an application for adjustment of status before an immigration
judge per 8 C.F.R. 1245.2(a)(ii) . Furthermore, Respondent fits the definition of "arriving
alien" found in 8 C.F.R. 1000.l(q) which states that "an arriving alien remains an arriving alien
even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is
terminated or revoked. " Although Respondent's 1-94 Departure Record expired on December
16, 1992, Respondent was paroled pursuant to section 212(d)(5) when he was granted parole in
order to enter the United States to pursue an asylum application on June 17, 1992 . See (Exhs. I,
4A). Therefore, the Court does not have jurisdiction over Respondent's application for
adjustment of status. Rather, USCIS has exclusive jurisdiction over the claim and Respondent
must pursue an application for adjustment of status independent of these removal proceedings.
Therefore, as the Court does not have jurisdiction over Respondent's application for adjustment
of status, the Court need not address whether Respondent has established "good cause" to
terminate proceedings.

The Court shall enter the following orders:

11
A# 088-741-127
 ORDERS

IT IS HEREBY ORDERED that the charge that Respondent is subject to removal

pursuant to INA 237(a)(l)(A) is SUSTAINED.

IT IS FURTHER ORDERED that the charge that Respondent is subject to removal

pursuant to INA 212(a)(7)(A)(i)(I) is SUSTAINED.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IT IS FURTHER ORDERED that Respondent's motion to terminate is DENIED
WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Respondent's application for adjustment of status is

DENIED.

IT IS FURTHER ORDERED that Respondent be removed from the United States to HAITI.

,,---

\ \- \\)-t$
Date Philip J. MQntan_te, Jr
_ _

U.S. Immigration Judge

12
A# 088-741-127