Osberg-Braun, Linda, Esq. Bernstein Osberg-Braun, P.L. 11900 Biscayne Blvd., Ste. 700 Miami, FL 33181

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

Name: GUZMAN-CHAVEZ, AUGUSTO A 099-226-737

Date of this notice: 2/13/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Miller, Neil P. Holmes, David B. Guendelsberger, John

Sincerely,

DCrutL c t1/VL)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

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Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A099 226 737 - Miami, FL

In re: AUGUSTO GUZMAN-CHAVEZ

fN REMOVAL PROCEEDINGS

MOTION

Date:

ON BEHALF OF RESPONDENT: Linda Osberg-Braun, Esquire

CHARGE:

FEB 1 3 2013

Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

Sec. 237(a)(l )(A), I&N Act [8 U.S.C. § 1227(a)(l )(A)] -Inadmissible at time of entry or adjustment of status under section 212(a)(6)(C)(i), I&N Act [8 U.S.C. § 1182(a)(6)(C)(i)]

APPLICATION: Reconsideration

This matter was Jast before the Board on August 20, 2014, when we dismissed the respondent's appeal from the Immigration Judge's decision finding the respondent subject to removal as charged in the Notice to Appear, denying the motion for a continuance, and ordering the respondent removed from the United States. Our decision also denied the respondent's motion to remand the record based on additional evidence. The respondent has filed a timely motion to reconsider. The Department of Homeland Security (DHS) has not filed a reply, and the motion is therefore deemed unopposed. See 8 C.F.R. § 1003.2(g)(3). The motion will be granted and the record will be remanded.

A motion to reconsider must identify an error of fact or law in the Board's prior decision. See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b); Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006) (finding that a motion to reconsider must allege a material factual or legal error or argue a change in law).

The respondent correctly observes that our last decision erred in concluding that the respondent did not challenge on appeal the Immigration Judge's finding that the respondent is subject to removal based on being inadmissible under section 2 l 2(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). The respondent was specifically charged with having entered into a marriage that was fraudulent in order to obtain immigration benefits. Significantly, the Immigration Judge made the finding of removability without taking testimony (Tr. at 25-26). We also note that the respondent's attorney advised the Immigration Judge that the respondent had affidavits from his wife and step-children concerning the validity of the respondent's marriage but these were not specifically offered into evidence and were not considered (Tr. at 2 I). The affidavits, which pre-date the respondent's last hearing by several weeks, were submitted with the respondent's motion to remand but were not addressed in the Board's last decision. We are also concerned

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Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)

' A099 226 73 7

that the Immigration Judge relied in making his finding as to the section 237(a)(l )(A) charge solely upon a U.S. Citizenship and Immigration Services (USCIS) decision that demonstrated the respondent's wife was taking medication for Alzheimer's disease when she was interviewed by USCIS (I.J. at 25-26; USCIS decision dated December 15, 2011 ). Under the circumstances, we vacate that part of our decision that affirms the finding that the respondent is subject to removal under section 237(a)(l )(A) of the Act. Given that the respondent conceded a charge of removability under section 237(a)(l)(B) of the Act, removability is not an issue.

Our last decision declined to remand the record to allow the respondent to seek adjustment of status as the spouse of a Cuban national, who is a lawful permanent resident, on the basis that the respondent did not file a Form I-601 waiver application with his motion. However, as the respondent points out, such a form would be needed only if he were found subject to removal on the section 237(a)(l )(A) charge.1

·

The record before us raises a number of questions about whether the respondent will qualify for adjustment of status in light of the criminal charges pending against him. However, we find it appropriate to remand the record for a hearing on the respondent's application.

The following orders will be entered.

ORDER: The respondent's motion to reconsider is granted.

FURTHER ORDER: The Board's decision dated August 20, 2014, is vacated insofar as it concluded that the respondent is subject to removal under section 237(a)(l )(A) of the Act.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

FOR THEBOARD

1 On remand, this charge may again be considered after the parties are permitted to present additional relevant evidence. We note that should the charge be sustained, the respondent has submitted a Form 1-601 waiver application with his motion.

2

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Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)