Dalal, Suresh H. Esq.

Law Ofices of Suresh H. Dalal

200 Middlesex Essex Turnpike., Ste 106
lselin, NJ 08830-2033
Name: PATEL, HIMANSHU
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 2000
Fals Church, Vrginia 220. I
OHS/ICE Ofice of Chief Counsel - NEW
P .0. Box 1898
Newark, NJ 07101
A046-743-862
Date of this notice: 4/4/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Himanshu Patel, A046 743 862 (BIA April 4, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals

Falls Church, Virginia 22041
File: A046 743 862 - Newark, NJ Date:
APR -4 zon
In re: HIMANSHU PA TEL
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Suresh H. Dalal, Esquire
CHARGE:
Notice: Sec. 237(a)(l)(D)(i), l&N Act [8 U.S.C. 1227(a)(l )(D)(i)] -
Conditional resident status terinated
APPLICATION: Section 216(c)(4) waiver; remand
1
The respondent, a native and citizen of lndia, appeals the April 14, 2009, denial of his application
fr a waiver under section 216(c)(4) of the Immigation and Nationality Act, 8 U.S.C.

l l 86a(c)(4).
The record will be remanded fr frther proceedings.
The respondent became a conditional permanent resident of this countr on September 11, 1998,
by virue of his June 20, 1997, mariage to a United States citizen (l.J. at 3). The respondent and his
ex-wif divorced on March 30, 2001, leading him to fle an application fr a section 216(c)(4) waiver
with United States Citizenship and Immigration Serices ("USCIS") (l.J. at 3-4; Exh. 2). On
June 30, 2003, the District Director terinated his status, concluding that he married his ex-wife fr
the purpose of procuring entry into the United States (l.J. at 1-2; Exh. 3). The respondent
subsequently renewed his application befre the Immigration Court. The Immigration Judge
determined that the respondent's testimony, the testimony of his two supporing witnesses, and his
documentary evidence did not establish that he entered into his marriage in good fith (I.J. at 3-10).
See 8 C.F.R. 1216. 5(e)(2).
On appeal, the respondent alleges that his frmer attorey provided him inefective assistance
of counsel and requests a remand fr consideration of evidence that the attorey allegedly filed to
submit. Specifcally, the respondent asserts that he retained David K. Wenger, a attorey based in
Detroit, M, to seek reconsideration ofUSCIS's denial of his section 216(c)(4) waiver application,
and later to procure reopening afer the Immigration Judge entered an in absentia order on
October 19, 2006. He claims that Mr. Wenger lost the fllowing documents that were included with
his USCIS request fr reconsideration: (1) afdavits of his ex-wif; (2) afdavits of his ex-wif's
fther; (3) an afdavit of his ex-wif's uncle; (4) an afdavit fom another of his ex-wif's uncles;
(5) an afdavit of his fther; (6) an afdavit of his ex-wif stating that she maried the respondent
in good fith; (7) an affdavit of te respondent himself; (8) copies of leters sent to the respondent
by his ex-wif; and (9) copies of 1998 and 2000 joint t retus. Moreover, once reopening was
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Cite as: Himanshu Patel, A046 743 862 (BIA April 4, 2011)
A046 743 862
granted, Mr. Wenger engaged the services of Robert Frank, an attorey located in Newark, NJ, at
the last minute. Mr. Frank was not in possession of the abovementioned evidence while representing
the respondent during the fnal hearing.
In Matter of Lozada, 19 l&N Dec. 63 7 (BIA 1988), we held that a motion to reopen (or in this
case a motion to remand) based on inefective assistance of counsel requires: (1) that the motion be
supported by an afdavit of the allegedly aggrieved respondent setting frh in detail the agreement
that was entered into with counsel with respect to the actions to be taken and what representations
counsel did or did not make to the respondent in this regard; (2) that counsel whose integity or
competence is being impugned be infred of the allegations leveled against him and be given an
opportunity to respond; and (3) that the motion refect whether a complaint has been fled with
appropriate disciplinar authorities with respect to any violation of counsel's ethical or legal
responsibilities, and if not, why not. Id. at 639; see also Matter a/Compean, Banga/y, and J-E-C-,
25 l&N Dec. I (A.G. 2009); Lu v. Ashcrof, 259 F.3d 127, 133 (3d Cir. 2001). Here, te respondent
has flly complied with these requirements.
It is also required that the claimant establish that he sufered prejudice as a result of his attorey's
inefectiveness. Matter of Lozada, supra, at 640. In this regard, the respondent has submitted a copy
of a July 6, 2007, letter addressed to him, in which Mr. Wenger admits that he misplaced the
respondent's For I-751 (USCIS section 216( c )( 4) waiver application) fle. The record also contains
multiple leters fom Mr. Wenger to the respondent, in which frmer counsel calls attention to the
pretrial deadline fr submitting documentary evidence. The respondent fher includes copies of
emails that he sent to Mr. Wenger on March 6, 2008, July 2, 2008, and February 19, 2009, asking
him to make sure the documentation submitted to USCIS would be available at his
Immigration Court hearing. Finally, he provides copies of various pieces of evidence that were not
fled in a timely fashion.
In denying a section 216(c)(4) waiver, the Immigation Judge emphasized the absence of
documentary evidence of a bona fde marriage (l.J. at 8-10). Therefre, we conclude that the
respondent has shown prejudice fom M. Wenger's filure to produce the pieces of evidence noted
above. We will remand the record fr the parties to submit additional evidence and argument
regarding the bona fdes of the respondent's marriage to his ex-wife. The Immigation Judge should
then enter a new decision regarding the respondent's application fr a waiver under section 216( c )( 4)
of the Act.
Accordingly, the fllowing order is entered.
ORDER: The denial of a section 216(c)(4) waiver is vacated and the record is remanded fr
fher proceedings consistent with this decision.
FOR THE BOARD
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Cite as: Himanshu Patel, A046 743 862 (BIA April 4, 2011)
U. S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Newark, New Jersey
File A 046 743 862 April 14, 2009
In the Matter of
HIMANSHU PATEL, IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 237(a) (1) (D) (i) of the Immigration and
Nationality Act.
APPLICATION: Review of I-751 and voluntary departure.
ON BEHALF OF THE RESPONDENT:
Robert Frank, Esquire
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Janice Montana, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 33-year-old, remarried male, native
and citizen of India.
The Notice to Appear is marked into evidence as Exhibit
1. It's dated September 27, 2006. It alleges that the
respondent became a conditional permanent resident of the United
States on September 11, 1998, but that his conditional status was
terminated on June 30, 2003, because the District Director
determined that the marriage was entered into to procure entry
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into the United States. At a master calendar hearing on October
11, 2007, the respondent through counsel admitted the allegations
and conceded the charge. On that basis, his removability has
been established by clear and convincing evidence.
The Court has in evidence Exhibit 2 which is the I-751
that was denied and also Exhibit 3 which is the June 30, 2003,
denial letter. We also have in evidence Exhibit 4 which is the
so called administrative record.
rn order to be eligible for a waiver in this case, Mr.
Patel needs to demonstrate that he and his wife failed to comply
with the requirements of Section 216 of the Irigration and
Nationality Act, but that they have a good reason for failing to
comply, namely that they had been divorced. This is a waiver
under Section 216 ( c) ( 4) ( B) of the Irigrat ion and Nationality
Act. These waivers are available when a conditional permanent
resident and his petitioning spouse or her petitioning spouse are
unable to file a joint petition or, alternatively, are unable to
attend a joint interview with Irigration authorities to
determine the legitimacy of their marriage and the reason they
are unable to do those things is because they become divorced.
That is what we have had in this case.
The divorce waiver was denied by the District Director
and now this Court has the jurisdiction to review the denial of
that waiver ab initio and de novo and we can determine and must
determine whether or not this was a legitimate marriage. And,
A 046 743 862 2 April 14, 2009
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again, the burden of proof by a preponderance of the evidence is
on the respondent to demonstrate the bona f ides of this marriage.
The Court heard testimony from Mr. Patel. He testified
that he married Deta Patel. She is his first wife and the wife
who petitioned for him and got him his initial permanent resident
status. He testified that he became engaged to her on June 20,
1996. He later changed that testimony and said he was engaged to
her in August of 1996. He testified that he met her one week
before he became engaged to her. This marriage was an arranged
marriage. It was arranged by the parents of the bride and the
parents of the groom. Deta was about 20 years old at this time.
She was born April 5, 1996. He testified that she had come to
the United States at the age of 2. They were married on June 20,
1997. They honeymooned in an historic area of India for a week.
At that point, they spent about six weeks at a relative's house
in India and then his wife, Deta, returned to the United States
to resume her studies. Meanwhile, the respondent, Mr. Patel,
remained in India awaiting the processing of his imigrant visa.
He came to the United States on September 10, 1998, with that
visa.
Upon arriving in the United States, Mr. Patel went to
live in Portland, Oregon, with his wife. He lived with his wife
for two days. She was saying, "I think it's not going to work.n
Mr. Patel hung around for another couple of weeks, trying to
communicate with his wife, but he was unsuccessful. After about
A 046 743 862 3 April 14, 2009
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'<"
two weeks, he came to New Jersey where he
b
egan living with his
cousin. In total, he lived with his wife those two days and no
more.
Mr. Patel testified that he and her parents both tried
to persuade her to save the marriage. He testified that
sometimes his wife was very rude. Mr. Patel, however, did not
explain to this Court the reason why his wife decided that she no
longer wanted to be married to him.
Mr. Patel testified that he filed jointly with his wife
Federal Income Tax Returns for 1998, 1999, and 2000. The Court
would note it does not have 2000 returns.
Mr. Patel testified that he and his wife got divorced
in March of 2000. She has subsequently remarried and so has he.
He now has two United States citizen children.
Mr. Patel was asked why it might be that his ex-wife is
not here to testify on his behalf and he testified that it is
probably because her current husband does not want her to be
involved in the respondent's problem.
Mr. Patel testified that there were almost 1, 000 people
at his wedding in India and 600 or so at the reception.
Mr. Patel testified that he does not have any
documentation showing joint checking accounts or other joint
assets. He explained that his ex-wife, Deta, and he did not have
a lease together because she already was leasing the property in
Oregon when he arrived. He testified that he did not marry his
A 046 743 862 4 April 14, 2009
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--
(. .
. -
ex-wife for the green card, but he did acknowledge that his ex-
wife sent letters to Imigration in which she expressed her
belief that he did marry her simply for the green card.
Mr. Patel also testified on the question of voluntary
departure. It appears he is eligible for that relief.
The Court next heard from Arwin Patel. He is 50 years
old. He is the respondent's first cousin. He is a lawful
permanent resident. He came to the United States in 2008, and
lives in New Jersey. Arwin Patel testified that the respondent's
wedding was an arranged marriage, arranged by the parents. He
testified they were married in June of 1997, and it was either
the 27 or the 28. He testified that he attended the wedding and
there were about 150 people at the wedding. There was a dinner
party prior to that in the village where thousands of people
attended.
Mr. Arwin Patel testified that Deta probably had a
boyfriend and did not want to stay with the respondent. He
testified that Deta's parents were trying to save the marriage.
The Court next heard from Chetterland Patel. He is 38
years old. He is here on an H-1 visa. He has been in the United
States since 2002. He is the respondent's brother-in-law. He is
married to the respondent's sister. He lives in Edison, New
Jersey. He testified that he attended the wedding on June 28,
1997, in India. That is to say, of course, the wedding of the
respondent. He testified that it was an arranged marriage and
A 046 743 862 5 April 14, 2009
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there were about 500 people at the wedding.
The regulations at 8 C. F. R. Section 1216. S(e) (2) direct
the Imigration Judges in the consideration of these type of
waiver cases. The regulations specify that in considering
whether an alien entered into a qualifying marriage in good
faith, the Judge must look at a number of things including,
first, documentation relating to the degree to which the
financial assets and liabilities of the parties were combined.
Second, the documentation concerning the length of time during
which the parties cohabited after the marriage and after the
alien obtained permanent residence. We must also look at
evidence regarding birth of children during the marriage and we
must look at other evidence deemed pertinent. These items, of
course, are originally considered by the Director because the
Director of Citizenship and Imigration Service has original
jurisdiction and we as Imigration Judges then review the denials
of the District Director.
In the present case, there is no evidence of co-
mingling of assets because it is not alleged that there was any
co-mingling of assets. This Court does not have anything
reflecting a shared life together. Indeed, the marriage for all
practical purposes lasted two days. They only lived together for
two days. Remarkably enough, they seem to have joint tax returns
for two years even though they did not live together and
apparently did not have any comunication after the first two
A 046 743 862 6 April 14, 2009
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weeks that the respondent was in the United States. So the
things that we usually look for in these kinds of cases are
absent in this case. We look for things such as evidence of
utilities being used at the same address. It could be phone
bills. It could be cable television. It could be electricity,
things of that type. There is none of that here. We look for
evidence that the individuals shared credit cards or banking
accounts. There is no evidence of that here. We look for
evidence that car insurance, health insurance, life insurance
reflects the exis
i
ence of the husband and the wife in the
marriage either as beneficiaries or joint owners of the insurance
policy, but we, of course, have none of that here. We have no
leases. We have no evidence of property purchased together,
including real estate. There is really nothing here in terms of
this evidence of co-mingling of assets.
Moreover, in terms of birth of the children, well,
there were no children born of this marriage. So there is none
of that either. We have a remarkably scant documentary file in
this case and what that means is that Mr. Patel has to provide us
with very, very compelling, very persuasive testimony as to his
witnesses in order for him to win this case.
Probably the most important bit of evidence in support
of Mr. Patel's case is the evidence with regard to his marriage
ceremony and the number of people that were involved and the
elaborateness of that ceremony. That would seem to go to the
A 046 743 862 7 April 14, 2009
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question of authenticity of the marriage. It would appear that
at least one of the parties thought it was a real marriage if all
that expense and trouble was entered into for, for the sake of
the marriage. Of course, we can have a situation where an alien
respondent knows it is not a legitimate marriage, but the U. S.
citizen spouse bel ieves it is a legitimate marriage.
Alternatively, we could have a situation where both parties to
the marriage know it's fraudulent and, alternatively to that, is
the situation where both parties to the marriage know it is a
legitimate marriage.
With regard to the marriage ceremony, we have a few
photographs here, but that is about it. We also have the
testimony of two additional witnesses, two relatives of the
respondent that it was a large wedding, although the numbers do
not seem really to match together very well in terms of how many
people were actually at the wedding. The Court is not going to
make too much of that because most people, the Court believes,
are not very adept at trying to determine sizes of crowds and so
the Court is not going to make too much of that. Suffice it to
say, there may have been a large wedding here and to the extent
that we can believe that there was a large wedding, it may
provide evidence of bona fides of the marriage.
On the opposite side of the ledger, we have all of the
things that are absent here. We obviously do not have the
testimony of Deta Patel. We do not have anything from her other
A 046 743 862 8 April 14, 2009
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than a 2001 letter which says essentially nothing about her
marriage other than that she believes it was entered into in good
faith and that it was her fault that the marriage broke down.
But she is not here to testify and that is unfortunate because we
would have had, I am sure, questions for her about how it comes
to pass that she marries a man and then lives with him for two
days in the United States, and then not only does not want to see
him again, but does not even provide him with an explanation of
why it is that the marriage is falling apart. It is remarkable
in this case that throughout the testimony of Mr. Patel, he has
never ventured even a guess as to why it is that his wife decided
that she did not want to live with him any more. The Court finds
it remarkable that he does not apparently have the faintest idea
of what happened to his marriage. One would think someone would
have at least a curiosity that would demand some sort of answer
or at least some supposition, some hypothesis about what it was
that this woman was looking for that she did not get in this
marriage and why she would decide after two days that she had had
enough of Mr. Patel. But we did not get any of that.
One of our witnesses ventured forth the proposition
that she had a boyfriend, but where he got this information or
this supposition remains unexplained because Mr. Patel himself
never said anything about his wife having a boyfriend. So one
wonders whether the witness knows more about the respondent's
marriage than respondent himself does.
A 046 743 862 9 April 14, 2009
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Overall, the Court finds that the respondent's
testimony was not very compelling, nor was the testimony of the
two additional relative witnesses. It would have required very
long testimony, very detailed, very expository testimony to
overcome the dearth of information in documentary form in this
record. The Court finds that the respondent has not met that
burden of proof. All the things that we are told to look for in
the regulations we have looked for in this case and have been
unable to find and so the Court feels in this case that the
respondent has simply failed in his burden of proof.
The respondent has requested voluntary departure in the
alternative. That will be provided to him in the exercise of
discretion for the maximum period which is 60 days upon posting,
however, a $500 voluntary departure bond within the next five
business days.
The Court will enter the following orders.
ORDER
IT IS HEREBY ORDERED the respondent's application for
waiver under Section 216(c) (4) (B) of the Imigration and
Nationality Act is denied.
IT IS FURTHER ORDERED the respondent's application for
voluntary departure is granted until June 15, 2009, upon,
however, the posting within the next five business days of a $500
voluntary departure bond. In the event the respondent fails to
post the bond or fails to leave the United States when required,
A 046 743 862 10 April 14, 2009
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the respondent shall be deported to India pursuant to the charge
in the charging document.
A 046 743 862 11
/EUG
r
Imigration Judge
April 14, 2009
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I
CERTIFICATE PAGE
I hereby certify that the attached proceeding
before EUGENE PUGLIESE in the matter of:
HIMANSHU PATEL
A 046 743 862
Newark, New Jersey
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Imigration Review.
Maria Kimball (Transcriber)
Deposition Services, Inc.
6245 Executive Boulevard
Rockville, Maryland 20852
(301) 881-3344
June 10. 2009
(Completion Date)
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