BIA reversal 3 Judge James A nugent

Mathur, Sanjay S., Esq.
Mathur Law Offices, P.C.
U.S. Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5I 07 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530
2989 N. Stemmons Freeway, Suite 1000
Dallas, TX 75247
OHS/ICE Office of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
Name: NGUYEN, HIEP THANH A 073-306-230
Date of this notice: 11/26/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Hoffman, Sharon
Sincerely,
DoYUtL ca.AA)
Donna Carr
Chief Clerk
lulseges
Userteam: Docket
Immigrant&RefugeeAppellateCenter|www.irac.net
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Hiep Thanh Nguyen, A073 306 230 (BIA Nov. 26, 2013)

NGUYEN, HIEP THANH
A073-306-230
ROLLING PLAINS DET CENTER
118 COUNTY ROAD 206
HASKELL, TX 79521
Name: NGUYEN, HIEP THANH
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530
OHS/ICE Office of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
A 073-306-230
Date of this notice: 11/26/2013
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Hoffman, Sharon
Sincerely,
Don.JtL ca.;vU
Donna Carr
Chief Clerk
lulseges
Userteam: Docket

Ex.ecutive Office fo! Immigration Review
Decision ofthe Board of Immigration Appeals
Falls Church, Virginia 20530
File: A073 306 230 - Dallas, TX
In re: HIEP THANH NGUYEN
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: Sanjay S. Mathur, Esquire
APPLICATION: Adjustment of status; remand
NOV. .2 6 2013
The respondent, a native and citizen of Vietnam, appeals the decision of the Immigration
Judge dated May 9, 2013, that determined that the Immigration Judge did not have jurisdiction to
adjudicate the respondent's adjustment ofstatus application and ordered the respondent removed
from the United States to Vietnam. The Immigration Judge also issued Amended Orders dated
June 3, 2013, that found he had no jurisdiction over this adjustment application because the
respondent was an arriving alien. On appeal, the respondent contends that the Immigration
Judge erred in finding that he did not have jurisdiction. The respondent also filed a motion to
remand. The Department of Homeland Security has not responded to the appeal or the motion.
The respondent's motion is granted and the record is remanded for further proceedings.
The Immigration Judge erred in determining that he did not have jurisdiction because the
respondent was an arriving alien. The record indicates that the respondent was paroled into the
United States in 1994. The regulations initially provide that an alien remains an arriving alien
even if paroled into the United States under section 212(d)(5) of the Immigration and Nationality
Act. See 8 C.F.R. § 1001.l(q). However, the regulation further stipulates that "an arriving alien
who was paroled into the United States before April 1, 1997 . . . will not be treated, solely by
reason of that grant of parole, as an arriving alien under section 235(b){l)(A)(i) of the Act."
Because the respondent was paroled into the United States in 1994, he should not be considered
an arriving alien. Moreover, the respondent claims on appeal that the USCIS denied his
application for adjustment of status and waiver of inadmissibility and, therefore, jurisdiction
vests back to the Immigration Judge. The respondent is correct that an Immigration Judge also
has jurisdiction to adjudicate an adjustment of status application which has been denied by
USCIS and is renewed in removal proceedings. An alien (other than an arriving alien) whose
adjustment ofstatus application has been denied by USCIS has a right to renew the application in
removal proceedings. See 8 C.F.R. §§ 245.2(a)(5)(ii), 1245.2(a)(5)(ii). Accordingly, the record
is remanded to the hnmigration Court for further proceedings consistent with this order.
ORDER: The respondent•s motion to remand is granted and the record is remanded to the
Immigration Court for further action as appropriate and the issuance ofa new decision.
�·�,ORTliEBO

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
File: A073-306-230
In the Matter of
May 91 2013
HIEP THANH NGUYEN
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGE:
APPLICATION:
Section 212(a)(2)(A)(i)(I) of the Act.
Adjustment of status with waiver of inadmissibility pursuant to
Section 212(h) of the Act.
ON BEHALF OF RESPONDENT: SONJlY H. MlDJR SANJAY H. MATHUR
2989 N. Stemmons, Suite 1000
Dallas, Texas 75247
ON BEHALF OF OHS: PEGGY PRICE, ESQUIRE
Assistant Chief Counsel
U.S. Department of Homeland Security
Office of the Chief Counsel
125 E. John Carpenter Freeway, Suite 500
Irving, Texas 75062
ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Vietnam. The present action
commenced when the Department of Homeland Security issued a Notice to Appear
dated March 22, 2012. The Notice appears to have been served on the respondent on
1

the same day [Exhibit 1].1
In the Notice to Appear, the Department alleged that the respondent was
inadmissible to the United States pursuant to Section 212(a)(2)(A)(i)(I) of the Act in that
he was paroled into the United States on or about August 17, 1994, and that on or
about October 20, 1999, an application to adjust his status had been submitted by his
U.S. citizen spouse. The application was denied according to the 1-862 Notice to
Appear on May 17, 2002.
However, on September 19, 2001, the respondent was convicted in the Criminal
District Court Number I, Tarrant County, Texas, for the offense of indecency with a child
by contact in violation of Section 22.021 of the Texas Penal Code. This conviction,
according to the Department, made the respondent inadmissible under the provisions of
Section 212(a)(2)(A)(i)(I) of the Act in that the respondent was convicted of an act which
constitutes the essential elements of a crime involving moral turpitude other than a
purely political offense.
As noted above, at a Master Calendar hearing on April 2, 2012, the respondent
admitted the factual allegations in the Notice to Appear and conceded the charge of
removability.2
For its part, the Department also submitted a copy of the Form 1-213, as well as
the conviction documents, which are contained in the record as Exhibit 2. Based on the
statutes, evidence and admissions, the Court sustained the inadmissibility charge under
1 The certificate of service seems to indicate that the Notice to Appear was served on March 21,
2012, actually one day before the issuance date on March 22, 2012. However, at the Master Calendar
hearing on April 2, 2012, the respondent admitted that he had been properly served with the Notice to
Appear.
2 The Court notes that originally the application also indicated that the respondent was an alien
present in the United States who had not been admitted or paroled and that he was subject to removal
based on 212(a)(6)(A)(i) of the Act. The Department amended the Notice to Appear to indicate that the
respondent was in fact an arriving alien and not an alien present without being admitted or paroled. The
212(a)(6)(A)(i) charge was stricken from the Notice to Appear.
A073-306-230 2 May 9, 2013

Section 212(a)(2)(A)(i)(I) of the Act. The respondent designated adjustment of status
with a waiver of inadmissibility pursuant to Section 212(h) as his avenue of relief.
Following that hearing, it took several months for the 1-130 to be filed and then
approved by USCIS. Upon receipt of the 1-130 approval, the Court eventually set the
matter for an Individual hearing on May 9, 2013. The Record of Proceedings shows
that a number of exhibits were submitted in support of the application, including Exhibits
3, 4, 5, and 5-A. The Court notes that there is no medical examination in the Record of
Proceedings at this point, however, there appears to be some evidence that the medical
exam was in fact submitted to USCIS rather than to the Court.
However, at the commencement of the Individual hearing on May 9, 2013, the
Court became obliged to address the jurisdictional issue relating to the respondent. It
appears that this Court does not have jurisdiction to rule on the respondent's application
for adjustment of status or his waiver of inadmissibility. The Court notes that 8 C.F.R.
1245.2 indicates that the respondent would have to meet certain exceptions before this
Court would have jurisdiction to adjudicate his application for adjustment of status since
he is an arriving alien. Under that section, the Court does not have jurisdiction unless:
(a) the alien properly filed the application for adjustment of status with USCIS while he
was in the United States; (b) the alien departed from and returned to the United States
pursuant to the terms of a grant of advance parole to pursue a previously filed
application for adjustment of status; (c) the application for adjustment was denied by
USCIS; and (d) DHS placed the arriving alien in removal proceedings either upon the
arriving alien's return to the United States pursuant to the grant of advance parole or
after USCIS denied the application.
In the present case, it does not appear that the respondent falls under the
exceptions set forth in 8 C.F.R. 1245.2. The Fifth Circuit addressed this issue in
A073-306-230 3 May 9, 2013

Chambers v. Mukasey, 520 F.3d 446 (5th Cir. 2008). In that case, the Fifth Circuit ruled
that Mr. Chambers, who was attempting to adjust his status through an application for
adjustment of status filed after he entered the United States, was not subject to having
said application adjudicated by an Immigration Judge.
This Court notes that the Fifth Circuit's ruling in Chambers is analogous to the
present situation. It appears from the record that the respondent was paroled into the
United States in 1994 and that he has had two different applications for adjustment of
status denied. The present application was filed in late 2012 and not approved until
February 2013 by USCIS. The application currently before the Court is not the
previously filed applications filed earlier by first the respondent's brother and then the
respondent's wife. The Court notes that the application by the respondent's wife was
denied in 2002 and documentation on that denial is contained within the record of
proceedings.
It appears, therefore, that the Court does not have jurisdiction over the
respondent's present application for adjustment of status. The Court does note that the
respondent has been in the United States for 18 years on his present parole. While the
Court is perplexed that the respondent would still be considered "an arriving alien" as a
matter of logic, the Court is bound by the law to find that he is "an arriving alien,"
notwithstanding the fact that he has been in the United States for 18 years on his parole
status. He was originally admitted under a public interest parole and that parole was
indefinite. The Court also notes that the respondent does not fall within an exception
that was set forth in regulation 8 C.F.R. 1245.7, which might have been a way for him to
adjust his status before this Court. Under 8 C.F.R. 1234.7, there was a period of time
when individuals who were nationals of Vietnam, who had been granted parole into the
United States after being denied refugee status, would have been able to file an
A073-306-230 4 May 9, 2013

·�
adjustment of status application before the Court. However, in order to apply for that
exception under 8 C.F.R. 1245.7, the respondent would have been inspected and
granted parole into the United States between August 15, 1988, and September 30,
1990. The respondent did not receive his parole until 1994 and cannot, therefore, claim
the benefits of 8 C.F.R. 1245.7.
Since it appears that the Court does not have jurisdiction over the respondent's
application for adjustment of status, the Court is obliged to grant the Department's
motion to pretermit the respondent's applications. In reaching this ruling, the Court does
not make any comments as to the merit of the respondent's waiver of inadmissibility
under Section 212(h) since it did not reach the issue because of the jurisdictional
question. However, in the absence of any other viable applications for relief, the Court
makes the following order:
ORDER
IT IS ORDERED that the Department of Homeland Security's motion to pretermit
the respondent's application for relief be, and is, hereby granted for the reasons set
forth above.
IT IS FURTHER ORDERED that the respondent, having previously been found
inadmissible to the United States by clear and convincing evidence and in the absence
of any viable applications for relief and at the present time, be, and is, hereby ordered
removed from the United States to Vietnam based on the charge contained in the
Notice to Appear, as amended.
Dallas, Texas, this 9th day of May, 2013.
Please see the next page for electronic
signature
A073-306-230 5 May 9, 2013

A073-306-230
JAMES A. NUGENT
Immigration Judge
6 May 9, 2013

0
/Isl/
Immigration Judge JAMES NUGENT
nugentj on September 11, 2013 at 12:43 PM GMT
A073-306-230 7 May 9, 2013

BIA reversal 3 Judge James A nugent

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