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Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
O'Connor, Blair
.
t1 i I)
Userteam: Docket
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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APPEAL
CHARGE:
APPLICATION: Adjustment of status; waiver of inadmissibility under section 212(i) of the Act
In a decision dated February 5, 2016, the Immigration. Judge determined that the respondent
has not established that she is "clearly and beyond a doubt entitled to be admitted and is not
inadmissible" for adjustment of status under sections 212(a)(l)(A) (Health-Related Grounds) and
212(a)(4)(C)(ii) (Public Charge) of the Immigration and Nationality Act, 8 U.S.C.
l182(a)(l)(A), (a)(4)(C)(ii) (I.J. at 7-9). See section 240(c)(2)(A) of the Act, 8 U.S.C.
1229a(c)(2)(A); 8 C.F.R. 1240.8(c); Soriano v. Gonzales, 484 F.3d 318, 320 n.
1 (5th Cir. 2007). In order to establish her admissibility under section 212(a)(l)(A)(ii) of the
Act, the respondent presented a sealed Form I-693 Report of Medical Examination and
Vaccination Record ("I-693") at the February 5, 2016, merits hearing. However, upon unsealing
it, the Immigration Judge observed that the Form 1-693 was not signed by the examining civil
surgeon. The Immigration Judge determined that the I-693 is legally deficient and, as a result,
that the respondent has not established her admissibility under section 212(a)(l)(A)(ii) of the Act
(I.J. at 8).
The Immigration Judge also determined that the respondent has not established her
admissibility under section 212(a)(4)(C)(ii) of the Act due to legal deficiencies in the 1-864
Affidavit of Support under Section 213A of the Act ("I-864") from the respondent's sponsor and
her joint sponsor. Specifically, the Immigration Judge determined that the 1-864 for the sponsor
is deficient because the respondent neither provided the sponsor's Federal income tax returns for
the 3 most recent taxable years, nor established that the sponsor had no legal duty to file returns
for those years. Similarly, the Immigration Judge rejected the I-864 from the joint sponsor
because it was only supported with a Federal income tax return for 2013. The Immigration
Judge noted that the I-864 was "filed" in Immigration Court on April 29, 2015, and he took
administrative notice that the last day on which to file a Federal income tax return without an
extension for tax year 2014 was April 15, 2015 (I.J. at 8). Thus, the Immigration Judge
determined that the respondent's joint sponsor has not supported the I-864 with a completed
Federal income tax return for the most recent taxable year. The respondent, therefore, did not
establish her admissibility under section 212(a)(4)(C)(ii) of the Act.
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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In the Notice of Appeal (Form EOIR-26), the respondent argues that she is not inadmissible
for adjustment of status under the Health-Related and Public Charge grounds, and she contends
that the Inunigration Judge should have granted her request for a continuance in order to present
1
a properly executed Form I-693 (Tr. at 60-61). For the following reasons, the respondent's
appeal will be sustained, and the record will be remanded for further proceedings and the entry
of a new decision.
Pursuant to section 232(b) of the Act, 8 U.S.C. 1222(b), the respondent was "required to
have a medical examination by a designated civil surgeon," and his report, the I-693, was
required to be "incorporated into the record." 8 C.F.R. 1245.5. The medical examination must
be incorporated into the evidentiary record because, under section 240(c)(l)(B) of the Act, "[i]f a
medical officer or civil surgeon or board of medical officers has certified under section 232(b)
that an alien has a disease, illness, or addiction which would make the alien inadmissible under
paragraph (1) of section 212(a), the decision of the immigration judge shall be based solely upon
such certification." (emphasis added). In this case, the Form I-693 is dispositive of the
respondent's admissibility under section 212(a)( l )(A) of the Act.
The I-693 was sealed by the civil surgeon before it was returned to the respondent, and the
respondent submitted the sealed I-693 to the Immigration Judge. See Department of Homeland
Security, U.S. Citizenship and Immigration Services, Instructions for I-693, Report of Medical
Examination and Vaccination Record (PDF, 301 KB) at 1 of 11, available at
https://www.uscis.gov/i-693 (last visited Oct. 28, 2016). The I-693, which was completed on
January 22, 2016, reflects that the respondent has no "communicable disease of public health
significance," no disqualifying "physical or mental disorder," is not a drug abuser or addict, and
has had all of the required vaccinations. See section 212(a)(l )(A) of the Act. Although it was
presented to the Immigration Judge sealed, he determined that the civil surgeon's missing
signature rendered the I-693 legally deficient as evidence of the respondent's admissibility. He
also denied the respondent's request for a continuance to submit a new I-693 (Tr. at 60-61).
The respondent has demonstrated "good cause" for a continuance. See 8 C.F.R. 1003.29,
1240.6. If the applicant is otherwise eligible and admissible for adjustment of status, and there is
no convincing reason for which to doubt her discretionary merit for adjustment, then the
proceedings should be continued in order for a new I-693 to be submitted. Cf. Masih
v.Mukasey, 536 F.3d 370, 373-74 (5th Cir. 2008); see also Wu v. Holder, 571 F.3d 467, 468-70
(5th Cir. 2009); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Insofar as the I-693 was
required to be sealed before the respondent received it from the civil surgeon and submitted it to
the Immigration Judge, she may not be held liable for a defect in the document of which she was
not only ignorant, but was supposed to have been ignorant. Accordingly, the record will be
1 The respondent has also argued that she is not inadmissible under section 212(a)(6)(C)(i) of the
Act (Tr. at 59, 69-70, 71-72), and that the Immigration Judge improperly excluded her Mexican
birth certificate from the evidentiary record (l.J. at 3, 4; Tr. at 47-49; Exh. 6). However, we need
not address these issues in order to resolve the appeal.
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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remanded for the respondent to submit a new medical examination in accordance with 8 C.F. R.
1245.
5.
As an initial matter, the Immigration Judge erroneously required the respondent's sponsor
and joint sponsor to submit Federal income tax returns for the 3 most recent taxable years (l..J at
7-8; Tr. at 60, 90). The implementing regulation requires submission of only the "complete
Federal income tax return for the most recent taxable year (counting from the date of the signing,
rather than the filing, of the affidavit of support." (closing parenthesis omitted in original)
(emphasis added). 8 C.F.R. 213a.2(c)(2)(i)(A). The regulation permits, but does not require,
the sponsor or joint sponsor, "at his or her option," to submit Federal income tax returns for the
3 most recent tax years "if the sponsor believes that these additional tax returns may help in
establishing the sponsor's ability to maintain his or her income at the applicable threshold set
forth in the Poverty Guidelines.
" Id.
Prior to July 21, 2006, the effective date of the final rule amending the implementing
regulation for section 213A(f)(6) of the Act, the prior regulation: in effect under the interim rule
mandated the provision of Federal income tax returns "for each of the 3 most recent taxable
years." 8 C.F. R. 213a.2(c)(2)(i)(A) (2005); see also Affidavits of Support on Behalf of
Immigrants; Final Rule, supra, at 35738; Affidavits ofSupport on Behalf of Immigrants; Interim
Rule, 62 Fed. Reg. 54346, 54348 (Oct.20, 1997); Ramchandani v. Gonzales, 434 F.3d 337, 341
(5th Cir. 2005) (recognizing the former "three years of income tax returns" requirement).
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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However, relying on the discretion expressly provided in section 213A(f)(6)(B) of the Act, the
Attorney General and the Secretary of the Department of Homeland Security abrogated the prior
requirement of 3 years, and replaced it with the current requirement of just the Federal income
tax return for the most recent taxable year. See Affidavits of Support on Behalf of Immigrants;
Final Rule, supra, at 35738 ("[O]nce this final rule enters into force, a sponsor will only be
required to submit one Federal tax return, for the most recent tax year.").
The respondent maintains, however, that her joint sponsor has met the annual income
requirement. We conclude that further proceedings are necessary to determine whether the joint
sponsor meets this requirement. First, the Immigration Judge impermissibly required the
respondent to submit the 2014 Federal income tax return from the joint sponsor before the
February 5, 2016, merits hearing. 3 See 8 C.F.R. 1240.ll(a)(2); see also Affidavits of Support
on Behalf of Immigrants; Final Rule, supra, at 35744. The joint sponsor signed the affidavit of
support on January 28, 2015, and it was filed in Immigration Court on April 29, 2015 (I.J. at 8;
Exh. 8).
2 The sponsor did not support the I-864 with Federal income tax returns. Instead, the sponsor,
who indicated that his income consists entirely of social security benefits, provided a Form SSA-
1099 - Social Security Benefit Statement for each of the 3 most recent taxable years (I.J. at 7).
We take administrative notice that, unless the sponsor's filing status in 2014.was "married, filing
separately," he would not have been required to file a Federal income tax return due to
insufficient income. See Dep't of the Treasury, Internal Revenue Service Publication 501
(2014) at 2, available at htt,ps://www.irs.gov/pub/irs-prior/p501--2014.pdf? ga=l.223493080.
217140844.1428599869 (last visited Nov. 2, 2016); see also 8 C.F.R. 1003. l(d)(3)(iv).
3 The respondent attempted to provide his 2014 Federal income tax return to the Immigration
Judge at the February 5, 2016, merits hearing, but the Immigration Judge determined that the
respondent has not presented a valid reason for excepting the proffered evidence from the
ordinary rule that evidentiary filings must be submitted "at least fifteen (15) days in advance of
the hearing" (I.J. at 7-8). See Office of the Chief Immigration Judge, Immigration Court
Practice Manual, 3.l(b)(ii)(A), at 35, available at http://www. justice.gov/eoir/vll/OCUPrac
Manual/Practice Manual 1-27-14.pdf#.page=43 (last visited Nov. 2, 2016).
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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As already indicated, "the date of the signing, rather than the filing, of the affidavit of
support" is used to determine the "most recent taxable year." 8 C.F.R. 213a.2(c)(2)(i)(A).
However, the date of filing for the 1-864 is used to determine when "more than one year" has
passed for the purpose of requiring the respondent, in the exercise of the Immigration Judge's
discretion, to submit additional evidence in support of the joint sponsor's 1-864. See 8 C.F.R.
213a.2(a)( l )(v)(B). In other words, until more than 1 year has passed since the respondent
In this case, the date of signing indicates that the joint sponsor's most recent taxable year was
2014. See 26 U.S.C. 770 l (a)(23) ("The term 'taxable year' means the calendar year, or the
fiscal year ending during such calendar year, upon the basis of which the taxable income is
computed under subtitle A."). At that time, however, the joint sponsor was under no legal duty
to file a Federal tax return for 2014, since the statutory Federal income tax filing date,
April 15, 2015, had not yet passed (I.J. at 8). See 8 C.F.R. 213a2(c)(2)(i)(B); 26 U.S.C.
6072(a) ("[R]eturns made on the basis of the calendar year shall be filed on or before the 15th
day of April following the close of the calendar year . . . ."). Moreover, by the time of the
February 5, 2016, merits hearing, "more than.one year" had not yet elapsed since the respondent
filed the 1-864 from her joint sponsor on April 29, 2015.
Hence, the Immigration Judge exceeded his authority by requiring additional evidence of the
joint sponsor's ability to satisfy the income requirement under section 213A(f)( l )(E) of the Act.
Under these facts, the joint sponsor's 2013 Federal income tax return, if otherwise compliant
under the regulations, see 8 C.F.R. 213a.2(c)(2)(i)(A), is legally sufficient as evidence of his
ability to "maintain the intending immigrant [the respondent] at an annual income of at least
125 percent of the Federal poverty line." See 8 C.F.R. 213a.2(c)(2).
In view of the passage of "more than one year" since the respondent submitted the 1-864 on
April 29, 2015, on remand further proceedings should be held in order to determine the
respondent's admissibility for adjustment of status in accordance with this opinion. See Matter
of Kazemi, 19 l&N Dec. 49, 51 (BIA 1984). And the respondent must be afforded the
opportunity to submit a new medical examination. The following order will be entered.
ORDER: The respondent's appeal is sustained, and the record is remanded for further
proceedings and the entry of a new decision.
Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
In the Matter of
)
EDUARDA DE GONZALEZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
1
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a native and citizen of Mexico. It is alleged that she entered the
United States at or near an unknown place on or about an unknown date. At that time
the Immigration and Nationality Act (Act), as amended, in that she is an alien present in
the United States without being admitted or paroled or who arrived in United States at
any time or place other than designated by the Attorney General. Exhibit 1.
On October 4, 2010, the respondent, via counsel, admitted that she received a
respondent is not a citizen or national of United States, that she is a native and citizen
of Mexico and that she was not admitted or paroled after inspection by an Immigration
officer. The respondent, through counsel, also conceded to the charge of removal
allegation 3 that she arrived in United States at or near an unknown place on or about
an unknown date.
Based on the respondent's, through counsel, admissions that she is not a citizen
or national of United States, that she is a native and citizen of Mexico, that she entered
the United States illegally and concession to the charge of removal pursuant to Section
212(a)(6)(A)(i) of the Act, the Court found that removal had been established.
Respondent has the burden of proof to establish the time, place and manner of entry
pursuant to Section 291 of the Act. In case removal became necessary, the respondent
designated Mexico.
Section 212(a)(6) of the Act in that she previously filed an application for adjustment of
Immigration Service, USCIS. That was denied because she failed to reveal that she
DOCUMENTARY EVIDENCE
Exhibit No. 2, the Form 1-797 notice of action, visa petition approval.
decision denying a previously filed Form 1-485 application for adjustment of status with
USCIS pursuant to Section 212(a)(6)(C)(i) of the Act and the Form 1-485 filed with
USCIS.
Exhibit 5, respondent's application for adjustment of status filed with the Court,
affidavit of support from the sponsor, Simon Martinez del Dio; the affidavit of support for
the cosponsor, Fabian Martinez Oropeza. Included with these documents is the
naturalization certificate for Simon Martinez; a copy of his 2014 SSA-1099, social
security benefits for 2013 and 2012; a copy of Fabian Martinez' lawful permanent
resident card; a letter of employment;, the 2013 Federal tax returns purportedly filed
with the Internal Revenue Service, that would be two forms for 2013 for Fabian
respondent.
The following documents were admitted into the record without objections:
The Government objected to Exhibit No. 6 that was marked for identification
objection was based on 1003.33, in that there was not a complete translation from
reviewing the English translation it is clear that the upper portion of the Spanish version
purposes, a Spanish document that had not been translated from Spanish to English.
documents that are in a foreign language be translated from this foreign language to the
The Government also objected to Exhibit No. 10 that was marked for
identification purposes. This document was objected to based upon it being submitted
untimely. All of the Government's objections were sustained with respect to Exhibit No.
10. The documents were submitted untimely, failed to comply with the Practice Manual
and there was no good cause shown why the documents were submitted untimely. The
Government also objected to Exhibit 10, marked for identification purposes, the 2014
documents were filed with the Internal Revenue Service as required by law. The Court
notes that they are not signed and there is no corroborating evidence that these are the
Government to consider these documents since they were not given an opportunity to
The respondent testified that she has been in the United States for approximately
21 years, her first date of entry was in February of 1993. The respondent has two
children who were born in United States, Favia age 21 and Estevan age 16. Both of her
children reside with her. Respondent also indicated that her father is a citizen of United
States and as the sponsor and also resides with her. Respondent testified that Favia
works part time and attends college at TTC. She has been attending college for
approximately two and a half years. The respondent testified that Estevan is in the
tenth grade.
testimony about a theft offense, shoplifting. She indicated that she was at a store and it
was a mistake that she had been arrested. Respondent indicated that she did not
speak English at the time. She indicated that when she was taken by security,
eventually she was released and money and receipts were returned to her.
Respondent indicated she was accused of stealing. The respondent claimed that the
store returned to her money with receipts. Respondent indicated that at the time this
happened she did not understand anything that happened. On direct examination,
respondent indicated that she had not been convicted of any offense.
that she works at a disabled home caring for children. She has been working at this
that was filed with USCIS. Respondent indicated that the application was prepared by a
notary. Respondent indicated that she does not recall why she did not disclose that she
had been arrested. She indicated that she did tell the Immigration officer who
interviewed her for her application for adjustment of status that she had been arrested,
Respondent indicated that she has no relatives in Mexico. She believes that it
would be harmful to her and her children if she had to depart the United States.
Again on cross-examination respondent initially testified that she had not been
convicted of a crime. Later she testified that she did not know what the word conviction
meant. However, she did testify that she had pied guilty to shoplifting theft.
pretermit the respondent's application for adjustment of status in that she failed to
comply with the statutory and regulatory requirements; in that she failed to establish that
she is not inadmissible and would not be a public charge; in that the affidavit of support
had not been completed properly. The Government also objected to the medical
examination being considered in that it was not signed by an authorized medical official.
allow the respondent to successfully complete the missing portions of the application.
The Court denied this request and the Court will grant the Government's motion to
On or about June 19, 2013, the respondent, with current counsel, appeared in
court for the Court to consider her application for adjustment of status. The Court
of support, along with tax returns from the sponsor and cosponsor for the three most
recent tax years. The Court also informed the respondent's counsel that a current
medical examination also needed to be submitted. The Court also informed the
The respondent has failed to comply with requirements for adjustment of status
The Court finds that the respondent has failed to establish that she is not
The affidavit of support in Exhibit No. 8 from the sponsor, Simon Martinez, is
deficient. The respondent has failed to submit Federal tax returns for the sponsor for
2014, 2013 and 2012. The respondent failed to demonstrate to the Court that the
sponsor was not legally obligated to file Federal tax returns. Although the respondent
submitted the Form SSA-1099 Social Security benefit statement for 2014, 2013 and
2012, these documents in and of itself do not establish that the sponsor was not
required to file Federal tax returns as required by law, nor do they indicate that this was
The affidavit for the cosponsor, Fabian Martinez, is also deficient for the following
reasons. The Court required that most recent tax returns be submitted for this
individual. Only the 2013 tax returns were submitted in a timely manner. In addition,
the Court did not receive the 2012 Federal tax returns for the cosponsor. The Court will
would be prejudicial to the Government to consider a late filing of these documents and
The Court also note that the affidavit of support for cosponsor Fabian was also
not completed properly in that it only covers tax years from 2013, 2012 and 2011 even
though it was filed with the Court on or about April 29, 2015. In other words, the three
most recent tax returns were not included. The Court will take administrative notice that
on or about April 15, 2015, the Federal tax returns for the tax year 2014 were due to the
Internal Revenue Service and respondent failed to demonstrate to the Court why the
affidavit of support did not include the portion for most recent tax returns, year 2014.
Based upon the respondent's failure to demonstrate to the Court that she met the
requirements under 213 and that the affidavit of support and Federal tax returns were
submitted as required by law to show that she would not be a public charge, the Court
finds that the Government's motion should be granted in that respondent has not shown
The Court also finds that the respondent has failed to submit a properly executed
medical examination. The Court notes that the medical examination that was provided
to the Court this morning was not signed by a physician or an authorized official.
The Court believes the respondent has had approximately two and a half years
since we last met on or about June 19, 2013, to address these issues. The Court would
note that on June 19, 2013, when the respondent appeared for a hearing on an
application for adjustment the same deficiencies that were being considered today also
were found to have happened on June 19, 2013, and the respondent did not sufficiently
do so. Therefore, the Court found that any continuance would not be warranted in that
ORDER
pursuant to Section 245(i) of the Immigration and Nationality Act be pretermitted and
denied.
from United States to Mexico based on the charge contained in the Notice to Appear.