Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

U.S.
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals

Qffice of the Clerk
5107 leesburg P;ke, Suite 2000
Falls Church. Virgima 20530
OHS/ICE Office of Chief Counsel - BOS
Demissie & Church

929 Massachusetts Avenue, Suite 1
Cambridge, MA 02139
P.O. Box 8728

Boston, MA 02114
Name: JOSEPH SCARRY, DANIEL
A 012-129-154
Date of this notice: 2/18/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DO>VtL C!tlAA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Use rte am: Docket
For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)
Immigrant & Refugee Appellate Center | www.irac.net
Church, Susan, Esq.
U.S. D(\flartment of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 20530
File:
Date:
A012 129 154 - Boston, MA
FEB l 8 2015
In re: DANIEL JOSEPH SCARRY
APPEAL
ON BEHALF OF RESPONDENT:
Susan Church, Esquire
CHARGE:
Notice:
1182(a)(2)(A)(i)(II)] -
Sec.
212(a)(2)(A )(i )(II), l&N Act (8 U.S.C.

Controlled substance violation
Sec.
212(a)(7)(A)(i)(I), l&N Act (8 U.S.C. l 182(a )(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document
APPLICATION: Termination of proceedings
The respondent appeals the Immigration Judge's January 3, 2013, decision finding him
removable as charged and ineligible for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. 1255(a). The record will be remanded to the
Immigration Judge for further proceedings consistent with this opinion and for entry of a new
decision.
Upon review of the record, we find that a remand is necessary because there are indicia in the
record that require consideration as to whether the respondent has a claim to United States
citizenship. See section 30l(g) of the Act, 8 U.S.C. 1401 (g). In particular, the information in
the record indicates the respondent's father was a naturalized United States citizen who served in
the United States Air Force for over 20 years (Exhs. 5 and 6).1 The evidence also indicates that
the respondent and his parents lived on various United States Air Force bases in and outside of
the United States and that the respondent himself served in the United States Air Force.2 See id.
The record does not contain any specific information as to when the respondent's father
Notably, during the proceedings, the respondent's attorney stated that the respondent's father
never became a naturalized United States citizen (Tr. at 42). This is in contradiction to the other
1
evidence in the record (Tr. at 42; Exhs. 5 and 6).
2 Because the respondent was born in 1960, the required period of residence for a United States
citizen parent under section 301 (g) of the Act is a total of ten years, five of which were after the
age of 14 years. Because this issue was not explored below, the record does not include
evidence establishing when or where the respondent's father lived in the United States and/or on
United States' Air Force bases outside the United States.
IN REMOVAL PROCEEDINGS
A012 1'29 154
. naturalized. 3 Based on these indicia, and the fact that neither the Board nor the Immigration
Judge has jurisdiction over a United States citizen, we find it provident to remand the record in
order for the Immigration Judge to gather all of the necessary facts to determine whether the
respondent has a valid claim to United States citizenship under section 301 (g) of the Act. See
Holder, 720 F.3d 228 (5th Cir. 2013 ) (The issue of citizenship is
an "essential jurisdictional fact" which is never waived and may be raised at any point in the
id.; see also generally Joseph
v.
ORDER:
roistent
The record is remanded to the Immigration Judge for further proceedings
Mili ilis opinio
t:r f::
FOR TH BOARD
"
The record shows that the respondent became a lawful permanent resident when he was
approximately 1 year old in 1961 (Exh. 1 ). Thus, it would appear that the respondent's father
and/or mother had some type of status when the respondent was born. Additionally, the record
contains evidence showing that the respondent does not know whether his mother ever became a
naturalized citizen; this issue should also be explored on remand (Exhs. 5 and 6).
proceedings ).
File:
January 3,
A012-129-154
2013
In the Matter of
IN REMOVAL PROCEEDINGS
DANIEL JOSEPH SCARRY

RESPONDENT
CHARGES:
Section 212 ( a) ( 2) ( A) ( i) ( II) of the Immigration

and Nationality Act - convicted of controlled
substance violation.
Section 212 ( a) (7) ( A) ( i) ( I) of the Immigration and
Nationality Act - no valid immigrant visa.
A P PL ICATION:
( 1) Termination of proceedings.
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:
SUSAN B. CHURCH, E SQUIRE

929 Massachusetts Avenue,
Cambridge, Mass 02139
Suite 01
HELEN E. MOORE, ESQUIRE

Assistant Chief Counsel
JFK Federal Building - Room 425
Government Center
Boston, Mass 02203
ORAL DECIS ION OF THE IMMIGRATION JUDGE

The respondent in this case is
53-year-old,
native and citizen of the United Kingdom.
married,
Removal proceedings
were initiated against him when the Immigration Service of the
UN ITED STATES DEPARTMENT OF JUST ICE

EXECUTIVE OFFICE FOR IMMIGRAT ION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS
Department of Homeland Security issued a Notice to Appear on

March 9, 2010, charging him with being removable from the
( Exhibit 1) .
The respondent,
through counsel,
factual allegations 1,
2 and 3 in the Notice to Appear,
factual allegations 5 through 8,

removability,
admitted the truth of

denied
denied the charges of
designated England as the country for removal
purposes if necessary and sought to have the proceedings against

the respondent terminated.
( Exhibit 2).
( The respondent's
pleading also indicated alternate relief possibilities,
all of
which have been considered and found to be not applicable} .

Based upon the evidence of record,
I make the following
findings of fact:
On or about May 16,
1961,
the respondent was granted lawful
permanent resident status in the United States.

On or about March 24,
1991,
the respondent relinquished his
status as a lawful permanent resident by completing and

executing Form I-407 in front of an Immigration Officer of the
United States Department of Justice.
( Exhibit 4).
I find that
document to have been knowingly and willingly executed by the

respondent without coercion.
That document reflects that the respondent had resided in
Great Britain since 1986 and had been working there since that
date.
The last time the respondent had paid income taxes in the
A012-129-154
January 3,
2013
United States on the basis of the charges set forth above.
United States was in 1987.
The respondent stated to the
Irrunigration inspector that he did not intend to resume residency
his permanent resident status.

On or about March 9,
2010,
the respondent attempted to
enter the United States at the Boston Logan International

Airport as a lawful permanent resident of the United States.
did not have a valid unexpired immigrant visa,
He
reentry permit,
border crossing card or other valid entry document required by

the Immigration and Nationality Act.
On or about April 7,
1993,
the respondent was convicted in
the Los Angeles County Court at Pomona for the offense of

possession of a narcotic controlled substance,
to wit:
cocaine.
(Exhibit 8).
On or about April 7,
1993,
the respondent was convicted in
the Los Angeles County Court at Pomona for the offense of use
under the influence of a controlled substance,
( Exhibit 9)
to wit:
cocaine.
Based upon my fact finding,
I do find that removability has
been established by clear and convincing evidence.
The
respondent is ineligible for adjustment of status and

cancellation of removal as a nonpermanent resident based upon
his conviction record.
Accordingly,
A012-129-15 4
then,
the following order will be entered:
January 3,
2013
in the United States and thereby chose to voluntarily surrender
ORDER
IT IS HEREBY ORDERED that the respondent be removed from
contained in the Notice to Appear.
P1ease see the next paqe for e1ectronic signature
LEONARD I. SHA P IRO

U. S. Immigration Judge
A012-129-154
January 3,
the United States to United Kingdom on the basis of the charges
2013
{'!!... -
"
A012-1 29-154
Janua.ry 3,
2013
\.
..
//s//
LEONARD I.
shapirol on April
23,
A012-129-154
SHAPIRO
2013 at 7:54
PM GMT
Immigration Judge
January 3,
2013

Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

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Daniel Joseph Scarry, A012 129 154 (BIA Feb. 18, 2015)

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U.S.

Board ofImmigration Appeals

OHS/ICE Office of Chief Counsel - BOS

Demissie & Church

P.O. Box 8728

Name: JOSEPH SCARRY, DANIEL

Date of this notice: 2/18/2015

Use rte am: Docket

For more unpublished BIA decisions, visit

Immigrant & Refugee Appellate Center | www.irac.net

Church, Susan, Esq.

U.S. D(\flartment of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

A012 129 154 - Boston, MA

In re: DANIEL JOSEPH SCARRY

Susan Church, Esquire

212(a)(2)(A )(i )(II), l&N Act (8 U.S.C.

APPLICATION: Termination of proceedings

evidence in the record (Tr. at 42; Exhs. 5 and 6).

United States' Air Force bases outside the United States.

Immigrant & Refugee Appellate Center | www.irac.net

A012 1'29 154

The record is remanded to the Immigration Judge for further proceedings

Mili ilis opinio

Immigrant & Refugee Appellate Center | www.irac.net

DANIEL JOSEPH SCARRY

Section 212 ( a) ( 2) ( A) ( i) ( II) of the Immigration

SUSAN B. CHURCH, E SQUIRE

HELEN E. MOORE, ESQUIRE

ORAL DECIS ION OF THE IMMIGRATION JUDGE

native and citizen of the United Kingdom.

were initiated against him when the Immigration Service of the

Immigrant & Refugee Appellate Center | www.irac.net

UN ITED STATES DEPARTMENT OF JUST ICE

Department of Homeland Security issued a Notice to Appear on

2 and 3 in the Notice to Appear,

factual allegations 5 through 8,

admitted the truth of

denied the charges of

designated England as the country for removal

purposes if necessary and sought to have the proceedings against

pleading also indicated alternate relief possibilities,

which have been considered and found to be not applicable} .

I make the following

the respondent was granted lawful

permanent resident status in the United States.

the respondent relinquished his

status as a lawful permanent resident by completing and

document to have been knowingly and willingly executed by the

Immigrant & Refugee Appellate Center | www.irac.net

United States on the basis of the charges set forth above.

United States was in 1987.

The respondent stated to the

Irrunigration inspector that he did not intend to resume residency

his permanent resident status.

the respondent attempted to

enter the United States at the Boston Logan International

border crossing card or other valid entry document required by

the respondent was convicted in

the Los Angeles County Court at Pomona for the offense of

the respondent was convicted in

Based upon my fact finding,

I do find that removability has