Esquenazi, Marc, Esq.

Schein & Esquenazi, LLP

14651 Dallas Parkay, Suite 123
Dallas, TX 75254
lrS Department of Justice
Executive Ofce fr Immigrtion Review
Board of Immigration Appeals
Ojfice of the Clerk
5 J 07 Leesburg Pike. Suite 2000
Fals Church. Virginia 2:041
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fw, Ste. 500
Irving, TX 75062-2324
Name: NYABWARI, EVERLINE GESARE A 097-683-208
Date of this notice: 9/26/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Manuel, Elise
Adkins-Blanch, Charles K.
Sincerely,
DO Cw
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Sept. 26, 2013)
,
U.S. Deparment of Justice
Executive Ofce fr Imigation Review
Deision of te Board of Imigation Apeals
Falls Church, Virginia 22041
File: A097 683 208 - Dallas, T
In re: EVERLINE GESARE NY ABW A
I REMOVAL PROCEEDINGS
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: Mac Esquenai, Esquire
ON BEHALF OF OHS: Dawita J. Wilson Grimes
Assistant Chief Counsel
APPLICATION: Continuace; remand
SEP 2 6 2013
The respondent, a native and citizen of Kenya, appeals the Immigation Judge's decision
datd June 23, 2011. The respondent contests the Immigration Judge's determination that she is
subject to removal under setion 237(a)(3)(D) of the Act. She also agues that te Irnigation
Judge erred in denying her reuest fr a continuance to apply fr adjustment of st. During te
pendency of this appeal, the respondent fled a motion to remad and supporting doumentation
indicating that the pending vs petition, file on her behalf by her United States citizen spouse
in January 2010, wa approved on September I, 2011. The Depament of Homeland Security
("OHS") fled a motion fr su ary afrmace of the Immigation Judge's decision and a
response opposing the respondent's motion to remad. The respondent's appeal will b
sustained in part and dismisse in part ad the motion to remad will be denie.
We review Immigaton Judges' fndings of fact for clear error, but questions of law,
discretion, and judgent, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(J)(i),
(ii).
The initial issue is whether the OHS met its burden of proof t show by clea and convincing
evidence that the respondent is subject to removal under section 237(a)(3)(D) of the Act fr
havig flsely represented herself to be a United States citizen fr ay purose or benefit under
the Act. The Immigaton Judge reviewed the evidence of record, including a For I-9, dated
July 25, 2002, and aother For I-9, dated Jue 3, 2008. Both frms indicate that the respondent
represented to a prospective employer that she was a United States citien or national. However,
the respondent testfe that she did not mak that box, and indicates that her employer marke it
(Tr. at 54-64). The Immigration Judge determined that this testimony, in light of the
documentary evidence, wa not credible (I.J. at 12-15).
The respondent contends that she did not check the box that she was "a citizen or national of
the United States" in either For I-9 at issue, indicating that the hiring personnel flle in the box
afer she had siged the frm (Tr. at 59-60, 67-70). The respondent fer argues that the
laguage in these Form I-9s is "disjunctive" i that the box at issue notes "a citizen or national of
te United States." She testifed tat she understood she w not a citizen of the United States,
but that she did not know the meaning of a "national" (Tr. at 63).
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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Sept. 26, 2013)
A097 683 208
The Immigration Judge fund some aspects of the respondent's testimony not credible. In
paticula he fund unconvincing the respondent's testimony that her employers maked the
"citizen or national" box on the Form I-9s afer she siged the frms ad provided her driver's
license ad social security card to her employers. As to te ter "national," however, the
Immigration Judge accepted the respondent's explaation that she did not know the meaning of
that ter. IJ Decision at I 0. Even accepting the Immigation Judge's partial adverse credibility
determination, given the disjunctive "citizen or natonal" language in the Form I-9s, ad the
possibility that the respondent may not have unded the meaning or scope of the ter
"national," we do not fi nd that the OHS met its buden to show by clear and convincing evidence
that the respondent flsely represented herself to be a citizen of the United States fr a bnefit or
purpose under the Act. The Immigation Judge reasoned that "it may be inferred from the
respondent's written statement of 'yes,' she is legally eligible for employment in the Unite
States ... that she was attempting to represent herself as a citizen of the United States to gain
employment in the United States" U Deision at 16. However, more t a reaonable
inference from the evidence is reuired to demonstate removability under the clear and
convincing evidence stadard. Therefre, we fnd that the respondent has not been shown to be
subject to removal under section 237(a)(3)(D) of the Act and this porton of her appeal will be
sustained a to burden of proof.
The respondent neverteless remains deprtable based on two other grounds consisting of
overstaying her student vis without authoriztion, pursuant to section 237(a)(l )(B) of the Act,
and failing t maintain her legal immigration status, pursuant to secton 237(aXl)(C)(i).
We now t to the question of the respondent's eligbility fr adjustent of status and her
request fr a continuance in order to seek that fr of relief. The Immigaton Judge fund that
the respondent failed to establish good cause to frther continue her case beause, even asuming
that the For I-130 visa petition would be approved, the respondent would be ineligible fr
adjustment of status under section 24S(a) in that she is inadmissible under section 212(a)(6)(C)(ii)
of the Act. Section 212(a)(6)(C)(ii)(I) of the Act provides that "[a]ny alien who falsely
represents, or h falsely represented himself or herself to be a citizen of the United States fr
any purpose or beneft under this Act (including section 274A) or any other Feeral or State law
is inadmissible."
The Immigation Judge denied the respondent's motion fr a contuace based on the
pending visa petition, fnding that she wa not prir fcie eligible to adjust her status uder
section 24S(a) of the Act because she was inadmissible under section 212(a)(6)(C)(ii)(I) of the
Act for having falsely represented herself to be a United States citizen. Although this
determination involves the same issue as the 237(a)(3)(D) gound fr removal, the burden of
proof shifs to the respondent t show that she is not inadmissible under section
212(a)(6)(C)(ii)(I) of the Act in the context of demonstating eligibility fr rlief fom removal.
See section 240(c)(4)(A) of the Act, 8 U.S.C. l 229a(c)(4)(A).
The respondent h not shown that she qualifes for the exception to inadmissibility fr false
representation of citizenship contained in sublause (II) of setion 212(a)(6)(C)(ii)(I). Nor does
she qualif fr the waiver under section 212(i) of the Act which pertains to admission of
immigants inadmissible for faud or willfl misrepresentation under section 212(a)(6)(C)(i).
2
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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Sept. 26, 2013)
A097 683 208
Finally, the gndfthering provisions of setion 245(i) do no provide a exception to the ba to
inadmissibility under secton 212(a)(6)(C)(ii).
The hnmigation Judge correctly dened tat the respondent w reuesting no frms of
relief befre the Immigation Court other than an opportuity to apply for adjustment of status
through a motion fr a continuance. The OHS opposed a continuance ad the Immigation Judge
correctly denied it.
The fcts here a distinguished fom those in Mater of Hahmi, 24 I&N Dec. 785 (BIA
2009). In that case, the Board held that an alien's unopposed motion to continue ongoing
removal proceedings to await the adjudication of a pnding family-based visa petition should
generally be gted if approval of the visa petition would render him or her prima facie eligible
fr adjustment of status. I the cur t case, the OHS oppose the motion fr a continuace and
there was insufcient evidence that even if a family-based visa petition were approved, the
respondent would be prima fcie eligble fr adjustent of status.
For the same reasons, the Board denies the respondent's motion to remand baed on the
approval of the visa petition duing the pendency of this appeal. A remand is not waranted a
the respondent is not prima fcie eligible fr adjustent of status. The OHS correctly agues in
opposition to the motion to remand that the respondent is ba ed fom seeking adjustent of
status a a matter of law. We find no error in the Immigation Judge's refsal to grant a
continuance. The decision to grant or deny a continuce is wthin the discretion of the
Immigation Judge if good cause is shown. See 8 C.F.R. 1003.29; see also Mater of W-F-,
21 I&N Dec. 503 (BIA 1996); Mater of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992); Mater
ofSibrun, 18 I&N Dec. 354 (BIA 1983).
Accordingly, the following orders will be entere.
ORDER: The respondent's motion to remand is denied.
FURTHER ORDER: Te respondent's appeal is sustained insofar as she is not deportable
under section 237(a)(3)(D) of the Act; however, her appeal is dismissed as she is deportable
under sections 237(a)(l)(B) and 237(a)(l)(C)(i) of the Act and she has not demonstrated
eligibility for relief fom removal.
3
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Cite as: Everline Gesare Nyabwari, A097 683 208 (BIA Sept. 26, 2013)
U.S. Deparment of Justice
Executive Ofice for Immigration Review
Board of Immigration Appeals, Ofice of the Clerk
P.O. Box 8530
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041
CORRECTION MEMORANDUM TO THE FILE
Name: NYABWARI, EVERLINE GESARE
A#:097-683-208
Date: September 27. 2013
PLEASE NOTE:
O The Immigration Judge's decision in this case is complete; however, it is
incorrectly paginated. Explanation:
0 The Immigration Judge's I DD's visa decision in this case is missing a page.
Explanation:
he A# number on page (s) of the Immigration Judge's decision is incorrect.
he correct A# is 097-683-208
O The name of the beneficiary reflected in the first paragraph of the DD's Visa
decision dated is incorrect. The correct name is
0 The respondent's name as reflected in the Immigration Judge's decision is
incorrect. The correct name is

0 The date on the Immigration Judge's decision should be correctly reflected as

O The date in the footer of the Immigration Judge's decision is incorrect. The
correct date is
0 The undated Immigration Judge's decision was rendered on
O Other:
----------
Q J. l4 1 amela . Atkinson, Superisory Case Management Specialist
Docket Team
Rev. 2-06 I 3 paa
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Dallas, Texas
File No. : A 097 683 201 June 23, 2011
In the Matter of
EVERLINE GESARE NYABWARI IN REMOVAL PROCEEDINGS
CHARGES:
Respondent
Section 237 (a) (1) (B) of the Imigration and
Nationality Act (the Act) , as amended, in that
after admission as a nonimmigrant under Section
101 (a) (15) of the Act, you have remained in the
United States for a longer time than permitted in
violation of this Act or any other law of the
United States.
Section 237 (a) (1) (C) (i) of the Immigration and
Nationality Act, as amended, in that after
admission as a nonimmigrant under Section
101 (a) (15) of the Act, you failed to maintain or
comply with conditions of the nonimmigrant status
under which you were admitted.
Section 237 (a) (3) (D) of the Immigration and
Nationality Act, as amended, in that you are an
alien who has falsely represented yourself to be a
citizen of the United States for any purpose or
benefit under the Act (including Section 274(a) )
or a federal or state law.
APPLICATIONS: Request for continuance for adj udication of an I-
130 petition.
ON BEHALF OF RESPONDENT:
Mark Escanazi, Esquire
14651 Dallas Parkway, Suite 123
Dallas, Texas 75254
1
ON BEHALF OF OHS:
Dawnita J. Grimes, Esquire
Assistant Chief Counsel
Dallas, Texas
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I
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a native and citizen of Kenya.
She was
admitted to the United States at Dallas, Texas, on or about
August 1, 2000, as a nonimmigrant F-1 student to attend Texas
Southern University in Houston, Texas. Her F-1 student visa
expired on May 9, 2005, and she remained in the United States
beyond that date without authorization from the Department of
Homeland Secur
ity, hereafter referred to as the U. S. Government.
On July 2, 2002, respondent was employed for wages or other
compensation at Easy Mart stores without authorization from the
Government.
On June 3, 2008, the respondent was employed for wages or
other compensation at Techco 411 (Chevron), 1920 North Collins
Street, Arlington, Texas, without authorization from the
Government.
May 2, 2010, the Government issued to the respondent a
Notice to Appear charging her with removability pursuant to
Section 237(a) (1) (B) of the Imigration and Nationality Act
(Act), as amended, and that after admission as a nonimigrant in
Section lOl(a) (15) of the Act, she remained in the United States
for a longer time than permitted, in violation of this Act or any
other law of the United States; Section 237 (a) (1) (C) (i) of the
Act, as amended, in that her permission as a nonimigrant under
Section 101 (a) (15) of the Act, she failed to maintain or comply
with conditions of the nonimigrant status under which she was
A 097 683 208
2
June 23, 2011
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admitted; and Section 235 (a) (3) (D) of the Act, as amended, in
that she is an alien who falsely represented herself to be a
citizen of the United States for any purpose or benefit under the
Act (including Section 274(a) or federal or state law) . See
Exhibit No. 1.
At a Master Calendar proceeding on May 16, 2011, the
respondent appeared before the Court with counsel, and pled,
admitted to the following factual allegations and charge.
Respondent, via counsel, admitted that she is not a citizen or
national of the United States; that she is a native and citizen
of Kenya; that she was admitted to the United States at Dallas,
Texas, on or about August 1, 2000, as a nonimmigrant F-1 student
to attend Texas Southern University in Houston, Texas; that she
remained in the United States beyond the expiration of her F-1
student visa on May 9, 2005, without authorization from the
Immigration and Naturalization Service, or its successor, the
Department of Homeland Security; that she was employed for wages
or other compensation on July 2, 2002, at EZ Mart Stores and
Company without authorization from the Imigration and
Naturalization Service, or its successor, the Department of
Homeland Security; that she was employed for wages or other
compensation on June 3, 2008, at Techco; and, 4011 Chevron, 1920
North College, Arlington, Texas, without authorization of the
Department of Horeland Security.
The respondent, via counsel, admitted to the charge of
A 097 683 208 3 June 23, 2011
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removal pursuant to Section 237(a) (1) (B) of the Act in that after
admission as a nonimmigrant under Section lOl(a) (15) of the Act,
she remained in the United States for a longer time than
permitted in violation of this Act or any other law of the United
States. Respondent, via counsel, also admitted to the charge of
removal pursuant to Section 237 (a) (1) (C) (i) of the Act, as
amended, in that after admission as a nonimmigrant under
101(a) (15) of the Act, she failed to maintain or comply with the
conditions of the nonimmigrant status under which she was
admitted.
Based on the respondent's admissions to factual allegations
and her concessions to the two charges of removal under Section
237 (a) (1) (B) of the Act and Section 237 (a) (1) (C) (i) of the Act,
the Court finds that removal has been established by clear and
convincing evidence on these two charges. See Section
240(c) (3) (A) of the Act; see also 8 C. F. R. Section 1240. 8(a) .
The respondent denied factual allegation 6 in that on or
about July 25, 2002, she represented herself to be a citizen of
the United States by falsely marking employment eligibility
verification Form I-9 to indicate that she is a United States
citizen for the purpose of securing unauthorized employment at EZ
Mart Stores and Company. And respondent, via counsel, denied
allegation number 9 that on or about June 3, 2008, she
represented herself to be a citizen of the United States by
falsely marking employment eligibility verification Form I-9 to
A 097 683 208 4 June 23, 2011
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indicate that she is a United States citizen for purposes of
securing unauthorized employment at Techco. Respondent, via
counsel, also denied the corresponding charge pursuant to Section
237(a) (3) (D) of the Act.
The burden is on the Government to establish the
respondent's removal pursuant to Section 237(a) (3) (D) of the Act
as well as allegations 6 and 9 by clear and convincing evidence.
See Section 240(c) (3) (A) of the Act and 8 C.F.R. Section
1240. 8 (a).
At a hearing on June 23, 2011, after hearing the
respondent's testimony and the legal arguments presented by the
respondent through counsel and the Government, the Court
considered whether the respondent whether the respondent is
subject to removal pursuant to Section 237 (a) (3) (D) of the Act.
The Court concludes the respondent is removable under Section
237 (a) (3) (D) of the Act for the reasons stated here.
Documentary Evidence
Exhibit 1, the Notice to Appear.
Exhibit 2, the Government's submission of employment
verification form (the Form I-9) original version for the
respondent's employment at Techco 411. (The Government moved to
admit the original Form I-9 into the record without objection
from respondent. The Court admitted the original Form I-9 into
the record as Exhibit No. 2. )
Exhibit 3, the Government's submission of employment
A 097 683 208 5 June 23, 2011
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verification form (the Form I-9) copy of original version for the
respondent's employment at EZ Market Stores.
Respondent was a sole witness at today's hearing.
At the hearing on June 23, 2011, the government called the
respondent to testify before the Court. The following is a
summary of her testimony.
Direct Examination
Respondent has a Kenyan passport. She came to the United
States as a college student in 2000. Respondent is married. Her
husband filed an I-130 petition on her behalf in January, 2010,
with United States Citizen and Immigration Service (hereafter
referred to as CIS) .
Referring to Exhibit 3, the Assistant Chief Counsel asked
which section of the document contained the respondent's writing.
Respondent stated that the section one contains her writing,
except the box that says, "Citizen or national of the United
States. "
Respondent applied for employment at EZ Mart Stores and she
worked with EZ Mart Stores. When she filled out the Form I-9,
she did not understand that the purpose of the form is to show
eligibility for work in the United States. When asked what she
believes the purpose of the form is, she stated that no
explanation was given to her by her employer.
Respondent reads and writes in English. She read the form
before she completed section one and before she signed the form
A 097 683 208 6 June 23, 2011
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I
I-9.
She knew that the Form I-9 pertained to her employment to
EZ Mart. She knew she needed to bring her driver's license and
Social Security card to complete the Form. When asked, referring
to Exhibit 3, if she sees that a person certifying the Form I-9
form certified that the employee is eligible to work in the
United States, respondent said yes.
Respondent had been in the United States for two years at
the time that she completed the form. Her college studies in the
United States were "general studies." Respondent reads and
writes in English, has been able to read and write in the English
language since she entered, and could fluently read and write in
the English language when she signed the form. She has never had
employment authorization in the United States. The respondent
stated that she signed the form. When asked if she read prior to
signing the form the section that states, "I attest under penalty
of perjury that I am a citizen or national of the United States,"
the respondent stated that she forgets whether she read that
section. Respondent testified that someone checked the "citizen
or national" box after she signed the document. Respondent
stated that she handed her employer copies of her driver's
license and Social Security card to complete the Form I-9.
Respondent stated that she was not in the presence of her
employer when her employer completed the form. The respondent
stated that she read that section she needed to sign. Respondent
testified that she saw the section above where she was required
A 097 683 208 7 June 23, 2011
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to sign the section stating I am (check on of the following): a
citizen or national of the United States, a lawful permanent
resident, and alien authorized to work. When asked, "You knew
that you had to be one of those three things to obtain employment
at EZ Mart Stores, correct?" She stated, "I didn't know what
national meant."
When asked, "Which box did you tell the employers she needed
to check, " respondent stated that she left all of the boxes
blank. When asked what she told her employer to show she was
eligible for work, she said she did not say anything of the sort
to her employer. When asked what she currently believes made her
eligible for employment, respondent stated that she was not sure
if she was eligible for employment. She stated that she knew she
was not supposed to work when she filled out the forms. When
asked how she believed she would be able to work, the respondent
stated that she "j ust wanted a job. " When as
k
ed why she believed
she needed to bring her driver's license and Social Security
card, she stated that her employer j ust told her to bring those
in.
After working at EZ Mart, she worked for Chevron.
Respondent supplied her driver's license and Social Security card
to work at Chevron. Respondent stated that her signature as
included in Exhibit 2 is hers and is genuine. She stated that
she "filled out everything except the box. " The respondent does
not remember what color ink she used to complete the form.
A 097 683 208
8 June 23, 2011
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Respondent was presented with the original version of a Form I-9
as included in Exhibit 2 and she noted that section one, which
she completed, was completed with blue ink. Respondent stated
that the remainder of the form is completed in black ink,
including the employer's name. She stated that the "citizen or
national" box is completed with blue ink. She testified that she
left the blue pen on the table and that she, herself, did not
check that box.
Respondent did not have employment authorization when she
worked for EZ Mart or Chevron and she was not a lawful permanent
resident then or now. Respondent is not a citizen of the United
States and she does not know what a national of the United States
is. She has never represented that she is a national of the
United States. Respondent did not inform her manager that she is
a citizen of Kenya, and she did not inform her that she
overstayed her student visa from the United States. She did not
want to volunteer that information and she did not volunteer the
information. Respondent stated that she knew if she had
volunteered that information, she would have been unable to work.
Respondent knew she was not supposed to work in the United
States.
Respondent is right-handed. Respondent was asked to refer
to employment authorization application included in Exhibit 3.
Respondent completed the entire application and its two pages on
her own in her own handwriting, aside from the handwriting on the
A 097 683 208 9 June 23, 2011
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side of the pages.
Her husband, a United States citizen, filed an I-130
petition on her behalf with the USCIS. Respondent knows what a
citizen is. In her own words "to be a citizen you have to be
here for a certain amount of time. You have to file papers to
become a citizen. And if you were born here. " Respondent
understands that if a person claims to be a citizen of the United
States, that person can work in the United States lawfully.
Respondent did not know what a national of the United States is.
She stated that she does not know how being a national would
benefit her in obtaining work. She stated that she knows that
being a citizen of the United States would allow someone to work
in the United States without a problem.
The respondent testified that when she signed both Form I-
9s, section one was not completed. Respondent stated that she
read a portion of section one of the Form I-9 before she signed
the document, but that she did not read the entire entirety of
section one.
Cross-examination
When referred to the Form I-9 contained in Exhibit 3,
respondent identified her signature. Respondent stated that her
employer at EZ Mart asked her to fill out her employment forms,
which she did, but that she and her employer never reviewed the
employment forms together. Respondent stated that she was only
told by the employer to sign the forms. Respondent did not read
A 097 683 208 10 June 23, 2011
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the Form I-9 thoroughly.
The respondent does not know what a
national is.
Respondent noted on her Form I-9 included in
Exhibit 3 that originally the date she entered next to her
signature was her birth date, but it was corrected to indicate
the day she signed the form.
When referred to Exhibit 2, she was asked to identify the
colors of ink used to complete the Form I-9. She stated that
blue ink is in the top portion and black ink is in the bottom
portion. She stated that she was asked to leave her driver's
license and Social Security card out on top of the paperwork and
then her employer asked her to perform some duties around the
store training center. When the respondent came back, she saw
that the employer had taken the papers and had left her driver's
license and Social Security card out on the desk. She and two
more employees were all training together.
Respondent is not currently working and her husband is the
primary breadwinner of the household.
Redirect Examination
Respondent testified that she was not terminated from EZ
Mart.
Credibilit
y
Under Section 240(c) (4) of the Act, a credibility
determination by an Irrnigration Judge concerning the application
for relief from removal is based on the following criteria.
Considering the totality of the circumstance
s
and all relevant
A 097 683 208 11 June 23, 2011
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factors, the Immigration Judge may base a credibility
determination on the demeanor, candor, or responsiveness of the
applicant or witness, inherent plausibility of the applicant's or
witness's account, the consistency between the applicant's or
witness's written and oral statements (whether made and whether
or not under oath and considering the circumstances under which
the statements were made) the internal consistencies of each such
statement, the consistencies of such statement with other
evidence or record (including the reports on the Department's
safe country conditions) and any inaccuracies or falsehoods, any
such statements without regard to whether an inaccuracy,
inconsistency or falsehood goes to the heart of the applicant's
claim or any other relevant factor. There is no presumption of
credibility. However, if no adverse credibility determination is
specifically made, the applicant or witness shall have a
presumption of credibility on appeal.
After considering the respondent's testimony and all the
evidence included in the record, the Court finds under the
totality of circumstances, respondent did not testify credibly
before the Court. First, respondent testified that she was not
terminated from her employment at EZ Mart. However, the
documents submitted by the Government and included in Exhibit 3
indicate that the respondent was terminated from her employment
at EZ Mart because of problems with her performance, namely,
multiple policy infractions, including participating in an
A 097 683 208 12 June 23, 2011
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altercation with another employee and falsifying her time sheets.
Respondent also testified that she knew she was not supposed
to work in the United States because of her Immigration status.
She stated she did not inform her employer that she is a Kenyan
citizen and overstayed her student visa because she wanted a job.
Her manager did not ask about her Imigration status and that she
did not want to volunteer that information. Notably, also when
the respondent was asked what she told her employer to show she
was eligible for employment, she said she did not say anything of
the sort to her employer. However, it appears the respondent was
asked by her manager at EZ Mart regarding her ability to lawfully
work in the United States. In her application for employment,
including Exhibit 3, which respondent testified that she
completed entirely on her own and in her own handwriting, the
respondent was asked whether she is legally eligible for
employment in the United States. Respondent wrote "yes." Her
testimony directly contradicts with the other evidence included
in the record.
Furthermore, respondent did not adequately explain why,
according to her testimony, she completed section one of both
Forms I-9 in their entirety, but left the "citizen or national"
section blank. Respondent stated that she could read and write
in English when she completed both the Forms I-9. Respondent
testified that she completed section one of both the Forms I-9
aside from the part included in section one asking the employee
A 097 683 208 13 June 23, 2011
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whether she is a citizen or national of the United States.
Respondent basically testified thus that she completed all of a
section of a form labeled "to be completed and signed by the
employee at the time employment begins" except the portion
included imediately between where she signed and where she
provided her basic demographical information. Respondent even
testified regarding the Form I-9, including Exhibit 3, that she
saw the section asking her to indicate whether she is a citizen
or national of the United States, but left it blank.
When asked
to explain her motivations in leaving the space blank, however,
respondent only stated that she "did not know what national
meant," which is insufficient.
Thus, under the totality of circumstances, the Court
concludes the respondent was not a credible witness.
Statement of Law
The Government must show by thorough and convincing evidence
that an alien who has been admitted to the United States is
removable. See Section 240(c) (3) of the Act. Additionally, no
decision on deportability shall be valid unless it is based on
reasonable, subjective and probative evidence. See Section
240(c) (3) of the Act. Here, if the Government shows by clear and
convincing evidence that respondent falsely represented herself
as a citizen of the United States for any purpose or benefit
under the Act (including Section 274(a) or a federal or state
law), then she is subject to removal under Section 237 (a) (3) (D)
A 097 683 208
14 June 23, 2011
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of the Act.
An alien may only adjust her status to that of a lawful
permanent resident if she is adissible. See Section 245(a) of
the Act. Section 212 (a) (6) (C) (i) of the law provides any alien
who falsely represents or has falsely represented herself to be a
citizen for any purpose or benefit under the Act (including
Section 274(a) or any other federal or state law) is
inadmissible. Thus, if the Court finds respondent falsely
represented herself as a citizen of the United States for any
purpose or benefit under the Act or any other federal or state
law, not only would she be removed on Section 237(a) (3) (D) of the
Act, but she would be prima facie ineligible to adjust her status
under Section 245(a) of the Act by virtue of her inadissibility
Under Section 212(a) (6) (C) (ii). The Court would be forced to
pretermit her application for adjustment of status due to her
prima facie ineligibility for that relief.
Analysis, Conclusions of Law
The Court finds, after considering all the testimony and
documentary evidence included in the record, the Government has
shown by clear and convincing evidence that respondent falsely
represented herself as a citizen of the United States for a
benefit or purpose under the Act, and thus is subject to removal
under Section 237(a) (3) (D) of the Act.
First, because the Court has found that respondent lacks
credibility, it cannot rely on her testimony that she did not
A 097 683 208 15
June 23, 2011
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complete the "citizen or national" portion of a Form I-9, and
that she did not indicate on the Form I-9 that she is a citizen
or national of the United States.
Furthermore, the evidence suggests that she did indicate she
was a citizen of the United States on the Forms I-9. Respondent
testified that she understands what a citizen is. "To be a
citizen, you have to be here for a certain amount of time, you
have to file papers to become a citizen, and if you were born
here. " Respondent testified citizens of the United States may
lawfully work in the United States without any hindrances.
Respondent testified that she does not know what a national of
the United States is. Respondent has testified that she never
received any work authorization from the Government and that she
never had any lawful permanent resident status in the United
States.
Thus, it may be inferred from the respondent's written
statement of "yes, " she is legally eligible for employment in the
United States to her EZ Mart employer that she was attempting to
represent herself as a citizen of the United States to gain
employment in the United States.
In addition, the Court is not persuaded by the respondent's
argument that her employer went in to the respondent's Form I-9
using a different colored pen left on the table by the respondent
to complete the "citizen or national" box, especially considering
respondent's lack of candor to the Court. See Exhibit 2.
Because the Court has found the respondent is removable
A 097 683 208
16
June 23, 2011
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under Section 237 (a) (3) (D) of the Act, it also finds that
respondent is inadmissible under Section 212 (a) (6) (C) (ii) of the
Act. It also flows that since the Court has found respondent is
removable under Section 237(a) (3) (D) of the Act, the Court has
also sustained allegations 6 and 9, that is the respondent on or
about July 25, 2002, also represented herself to be a citizen of
the United States on her employment eligibility, on the Form I-9
at EZ Mart to obtain her job.
The Court also finds on or about June 3, 2008, she also
represented herself to be a citizen of the United States by
falsely marking an employment verification form that she is a
citizen in order to gain employment at Techco for the purposes of
securing employment at that convenience store.
Since the Court has concluded that respondent is subject to
removal under Section 237(a) (3) (D) of the Act, the next issue is
whether or not the respondent should be granted a continuance to
allow an adjudication of an I-130 petition.
The Court relies on the Matter of Hussein Hashmi, 24 I&N
Dec 785 (BIA 2009). One of the factors that the Court must
consider is whether respondent is eligible for adjustment of
status. The Court finds that based on the finding that the
respondent has made a false claim of United States citizenship
when she went to obtain employment at EZ Mart and Techco for the
purpose of obtaining unauthorized employment in the United States
that she is now ineligible for adjustment of status because she
A 097 683 208 17 June 23, 2011
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is inadmissible under 212 (a) (6) (C) (ii) of the Act and that she
made a false claim to United States citizenship. A further
review of the Act also indicates the respondent is not eligible
for any waiver for this provision. In other words, because there
is no waiver of inadmissibility pursuant to Section
212 (a) (6) (C) (ii) of the Act, because there is no waiver of this
ground of inadmissibility, the Court finds that a continuance in
this case is not warranted because even assuming that the I-130
petition is approved, respondent will be ineligible for
adjustment of status in that she is inadmissible under Section
212(a) (6) (C) (ii) of the Act and there is no waiver for this
ground of inadmissibility.
Therefore, the Court finds the respondent has failed to
establish good cause to further continue this case.
Respondent is seeking no other relief from removal.
Accordingly, the following orders should be entered.
ORDER
IT IS HEREBY ORDERED respondent's request for a continuance
be denied.
IT IS FURTHER ORDERED that respondent shall be removed and
deported from the United States to Kenya based on the charges
A 097 683 208 18 June 23, 2011
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contained on the Notice to Appear pursuant to Section
237 (a) (1) (B), 237 (a) (1) (C) (i), and 237 (a) (3) (D) of the Act.
Dated this 23rd day of June, 2011.
DEITRICH H. SIMS
United States Imigration Judge
A 097 683 208 19 June 23, 2011
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'
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
JUDGE DEITRICH J. SIMS, in the matter of:
EVERLINE GESARE NYABWARI
A 097 683 208
Dallas, Texas
is an accurate, verbatim transcript of the recording as provided by
the Executive Office for Immigration Review and that this is the
original transcript thereof for the file of the Executive Office
for Imigration Review.
,
'/,
A
Ann E. Wallace, Transcr. er
Free State Reporting, Inc.
August 13, 2011
(completion date)
i
/
'
By submission of this CERTIFICATE PAGE, the Contractor certifies
that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or
CD, as described in Section c, paragraph C. 3. 3. 2 of the contract,
was used to transcribe the Record of Proceeding shown in the above
paragraph.
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