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Singh, Gar G., Esq.

U.S. Department of Justice


Executive Ofce fr Immigration Review
8cardcfImm|grat|cnaeals
ucecf/heclerk
5107 leesburg Pike. Suite 2000
Flls Church, Vrginia 20530
Topa Financial Center, Bishop St. Tower
700 Bishop Street, Ste 2100
OHS
/
ICE Ofice of Chief Counsel - HON
595 Ala Moana Boulevard
Honolulu, HI 96813-4999
Honolulu, HI 96813
Name: PUMARAS, BRENDA DUMLAO A 044-943-630
Date of this notice:
3
/
10
/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Hofman, Sharon
Sincerely,
Dt c t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Brenda Dumlao Pumaras, A044 943 630 (BIA Mar. 10, 2014)
U.s Department of Justice
Executive Ofce fr Imigration Review
Decision of te Board of Imigation Appeals
Falls Church, Virginia 20530
File: A044 943 630 - Honolulu, HI Date:
MAR 1 ( 2014
In re: BRENDA DUMLAO PUMAAS a.k.a. Magaita Reyes Feradez
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONENT: Gay G. Singh, Esquire
ON BEHALF OF DHS: Chadu Latey
Assistat Chief Counsel
APLICATION: Remand
The respondent's appeal is pending befre te Board. The respondent has now moved to
remad fr consideration of her application fr a waiver under section 237(a)(l)(H) of the
Immigation ad Nationality Act, 8 U.S.C. 1227(a)( l )(H). The Depaent of Homelad
Securty (DHS) fled a reply stating it is not opposed to a remand. Therefre, as the motion is
unopposed, we will gant the respondent's motion ad remad the case fr frther proceedings.
ORDER: The record is remanded to the Immigation Court fr frter proceedings consistent
with the fregoing opinion and fr the entry of a new decision.
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Cite as: Brenda Dumlao Pumaras, A044 943 630 (BIA Mar. 10, 2014)
\'
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UITED STATES IMMIGRTION COURT
HONOLULU, HAWAII
File: A044-943-630
In the Matter of
June 29, 2012
BRENDA DULAO PUS IN REMOVAL PROCEEDINGS
RESPONDENT
CHGES: Section 237(a) (1) (A) (i), Immigration and
Nationality Act - immigrant inadmissible, not in
possession of valid immigration documents;
Section 237(a) (1) (A), Immigration and Nationality
Act - alien procured admission by fraud or
willful misrepresentation.
APPLICATIONS: Oral motion for continuance.
ON BEHALF OF RESPONDENT: GARY SINGH
ON BEHLF OF DHS: CHANDU LATEY
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 40-year-old, married native and
citizen of Philippines. She states that her legal name is
Brenda Dumlao Pumaras, and now that she has married she has
added the last name of
.
her husband, Cabading. The Department
alleges in the Notice to Appear that respondent was admitted at
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\.
Honolulu on May 17, 1995 as an F-2 immigrant, but that she
procured that admission by presenting a Philippine passport in
the name of Margarita Reyes Fernandez.
Proceedings were commenced with the filing of the
Notice to Appear with the Immigration Court at Honolulu on May
28, 2010. See Exhibit 1. The respondent with the assistance of
counsel admitted all the allegations and conceded removability,
designating the Philippines should that become necessary.
On June 1, 2010 the Department of Homeland Security
filed Exhibit 2 which contained respondent's immigrant visa and
alien registration face page, her visa application and
supporting documents, and a judgment in the United States
District Court, District of Hawaii, in case number 1:08CR00470-
001. The judgment of February 5, 2009 found respondent guilty
fo' r scheme to defraud the United States by wire fraud under 18
United States Code Section 1343; and/or aggravated identity
theft, 18 United States Code 1028A. Respondent had no objection
to the exhibit. Based upon respondent's pleadings and this
exhibit, the Court finds that removability has been established
by clear and convincing evidence on both charges. In essence,
the respondent used someone else's identity to immigrate to the
United States. The respondent is not Margarita Reyes Fernandez.
Respondent's husband, Romeo Cabading, filed a visa
petition for the respondent. That visa petition was denied by
users on June 19, 2012. see Exhibit 7.
A044-943-630 2 Jue 29, 2012
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/-
The individual hearing was conducted on June 29, 2012.
Exhibits 1 through and included 7 were received into the record
without any objections. The respondent withdrew her application
for a waiver under Section 237(a) (1) (H) of the Act. Because the
respondent entered the United States as a lawful permanent
resident under a completely false identity, she was not
"otherwise admissible11 and therefore was not qualified for this
particular waiver. With that waiver withdrawn, there was no
other application before the Court and the respondent also
waived voluntary departure. Counsel for the respondent
explained that respondent's sp

use who was present in the


courtroom, will appeal the visa petition denial and he
speculates that there will be a likely remand with the visa
petition being approved at the Board of Immigration Appeals.
The Department of Homeland Security opposed any further
continuance in the case and argued that respondent would not be
statutorily eligible for any other relief application and that
it was not likely that the visa petition wo

ld be approved.
Thus, the Court must consider whether under the full facts and
circumstances of this case whether a further continuance should
be granted to allow respondent to prepare a cancellation of
removal for certain non-permanent resident application, EOIR-
42B. This is because the respondent came to Court for her
individual without having that document prepared even though the
denial of the visa petition was issued 10 days prior to the
A044-943-630 3 June 29, 2012
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individual hearing and there was no written motion for a timely
continuance.
A Immigration Judge may grant a continuance for good
cause show. 8 C.F. R. Sections 1003. 29, 1240.6; Matter of
Hashmi, 24 I&N Dec. 785 (BIA 2009) . A decision to grant or deny
a continuance is within the "sound discretion of the Judge and
will not be overturned except on a showing of clear abuse. " See
Sandoval-Luna v. Mukasey, 526 F. 3d 1243, 1247 (9th Cir. 2008).
In deciding a motion to continue, the Court should consider:
(1) the nature of the evidence that would be excluded as a
result of denial of the continuance; (2) the reasonableness of
the immigrant's conduct; (3) inconvenience to the Court; and (4)
the number of continuances previously granted. Moreover, the
Board of Immigration Appeals has explained that in considering a
motion to continue for a pending visa petition, the Court should
also consider the DHS's response to the motion and whether the
uderlying visa petition is prima facie approvable. See Matter
of Hashmi, at 790.
The Court finds that respondent has failed to
demonstrate good cause for her oral motion to continue and
denies the request for the continuance. First, the Court notes
that this case is distinguishable from Ahmed v. Holder, 569 F. 3d
at 1012. Notably, in Ahmed, the Ninth Circuit noted that the
regulations provide visa applicants with the right to appeal the
denial of an immigrant visa petition to the AO, and it found
A044-943-630 4 June 29, 2012
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that the Immigration Judge erred in denying the respondent's
motion to continue when his Form I-140 visa petition was pending
before the AO. In this case, respondent had a Form I-130 visa
petition filed on her behalf, not an employment related visa,
Form I-140. Importantly, respondent's marriage, upon which the
I-130 is based, is subject to a presumption that it was entered
into in bad faith. See Malilia v. Holder, 632 F. 3d 598, 604
(9th Cir. 2011) (finding that the Immigration Judge did not make
an error of law in characterizing the respondent's marriage as
presumptively fraudulent and that he was not entitled to
adjustment of status because he married after being placed in
removal proceedings) . No such presumption existed in the
employment related case of Ahmed v. Holder.
It is also important to note that the other reason for
the continuance was for the respondent to file an application
for cancellation of removal for certain non-permanent residents.
Respondent has no application filed, nor was it even indicated
that she had filled out such an application. This is not a
situation where it is just a matter of a continuance to gather
information for an application that has been filed. There is no
application. Moreover, considering the respondent's conviction
records, it appears that the respondent would not be statutorily
eligible to apply for cancellation of removal for certain non-
permanent residents. She is precluded from showing good moral
character and the conviction for at least one of them does
A044-943-630 5 June 29, 2012
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appear to be a crime involving moral turpitude based upon the
conviction record. Respondent was not able to articulate why
she would not be precluded as a threshold matter of law for
applying for this sort of application. The Court has reviewed
the judgment in the criminal case, the memorandum of plea
agreement and the indictment, and the criminal complaint all set
forth at Exhibit 2. The conviction for count 8 relating to a
scheme to defraud the United States by wire fraud does appear to
be a crime involving moral turpitude. See United States v.
McNeil, 320 F. 3d 1034 {9th Cir. 2003) and cases cited therein.
The offenses ended within the last 10 years. For the scheme to
defraud the United States by wire fraud, the offense ended in
2007 and for the aggravated identity theft the offense is shown
as ending in 2004, all within the last 10 years. The judgment
was entered on February 2, 2009 and respondent was sentenced to
26 months incarceration. The appellate courts have long held
that convictions similar to the respondent's involving
misrepresentations and elements of theft are crimes involving
moral turpitude. Distinguish, Beltran-Triado v. INS, 213 F. 3d
1179 (9th Cir. 2000) ; see, Matter of Barcenas-Barrera, 25 I&N
Dec. 40 (BIA 1009) ; In re Cervantes, 22 I&N Dec. 560 (BIA 1999);
Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) ; Matter of Correa
Garces, 20 I&N Dec. 451 (BIA 1992) ; Matter of Namio, 14 I& Dec.
412 (BIA 1973) ; Matter of Ngan, 10 I&N Dec. 725 (BIA 1964) .
Thus, the Court comes to the conclusion that even if a
A044-943-630
6 June 29, 2012
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continuance was granted for the filing of the EOIR-42B
application it would be have to pretermitted and denied because
of respondent's recent conviction record.
Inasmuch as the Court has no other application before
it and because the motion to continue is denied, the following
order shall be entered:
ORDER
IT IS HEREBY ORDERED that the respondent be removed
from the United States to the Philippines on the two charges
contained in the Notice to Appear.
*I
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.
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A044-943-630 7 June 29, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUGE
DAYNA BEAER, in the matter of:
BRENDA DUMLAO PURAS
A044-943-630
HONOLULU, HAWAII
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 Immigration Review.
-
EVALENA E. CLARK (Transcriber)
DEPOSITION SERVICES, Inc.
AUGUST 10, 2012
(Completion Date)
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