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Department of Justice
A 096-419-142
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
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Donna Carr Chief Clerk
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Cite as: Mohamad Mahmoud Abdul Karim, A096 419 142 (BIA July 23, 2013)
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U.S.
Departmeof Justice
File:
Date:
JUL 2 8 2013
In re: MOHAMAD MAHMOUD ABDUL KARIM IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law George P. Mann, Esquire
APPLICATION: Adjustment
The respondent, a native and citizen of Lebanon, appeals from an Immigration Judge's decision dated October 17, 2011, finding that he abandoned his application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. respondent's appeal will be sustained. We review for clear error the findings of fact, including the determination of credibility,
1255.
The
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(J)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R.
1003.l(d)(J)(ii).
Matter ofAlmanza,
The respondent timely filed an application to adjust status (Form 1-485) based on an approved visa petition (Form 1-130) submitted by his current wife (Exh. 2). Based upon the respondent's failure to file certain corroborating medical and tax records by the deadline set by the Immigration Judge (Tr. at 247), the Immigration Judge held "that respondent has abandoned the application of adjustment" and ordered him removed to Lebanon (l.J. at I). We have held that where an application for relief is timely filed but supporting documents to file such documents to be waived, but may not deem the application itself abandoned. See Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010). Although the respondent's corroborating documents were not submitted and his opportunity to file the documents is waived, his adjustment application should not be deemed abandoned. See Matter of Interiano-Rosa, In a footnote, the Immigration Judge cites Matter of Interiano-Rosa in support of his are not submitted within the time established, the Immigration Judge may deem the opportunity
supra.
conclusion that abandonment is appropriate where respondent agreed to provide certain documents but failed to do so. Matter of Interiano-Rosa permits an Immigration Judge to adjudicate the merits - taking into account the absence of certain documents - but it does not
Cite as: Mohamad Mahmoud Abdul Karim, A096 419 142 (BIA July 23, 2013)
allow an Immigration Judge conclude the application was abandoned as the Immigration Judge did here. Under the circumstances, we will vacate the Immigration Judge's decision. The record will be remanded for further proceedings, including a continued hearing on the merits of the respondent's application for adjustment of status and any other form of relief for which he may be eligible. We express no opinion regarding the merits of the respondent's application. Accordingly, the following order will be issued.
ORDER:
We find no support for the respondent's argument that the Immigration Judge showed
prejudice. 2
Cite as: Mohamad Mahmoud Abdul Karim, A096 419 142 (BIA July 23, 2013)
A:
096-419-142
Detroit REMOVAL
Proceedings
amended tax returns to correct previous returns that appeared to have been fraudulent. Additionally, respondent agreed to submit medical records demonstrating that his spouse had had a miscarriage after the individual hearing conducted on September
26, 2007.
Respondent agreed to submit these matters discussed above as without those matters the Court was going to deny respondent's adjustment application as a matter of discretion at the time set for the decision on December 8,
2011. 20,
As respondent has not filed the agreed upon matters by the agreed upon date of September
2011, the Court finds that respondent has abandoned the application of adjustment. 1
As respondent has never requested voluntary departure or any other relief, the Court orders respondent removed to Lebanon on the charge in his Notice to Appear.
RRY
Immigration Judge
10-17-11
DATE cc: Attorney Maze OHS/BICE/Attorney Dobson
As respondent agreed to provide these matters to get discretionary relief from the
Court, respondent cannot meet his burden to show he merits a favorable exercise of discretion. Thus, the Court's finding that respondent has abandoned the application is appropriate. See Matter of Interiano-Rosa I&N Dec.
25 I&N Dec. 264, 266 (BIA 2010); Matter of Almanza-Arenas. 24 771, 775 (BIA 2009). See also Hassan v. Gonzales. 403 F.3d 429, 436 (61h. Cir. 2005).