sokrat stambolliu, a200 548 126 (bia nov. 28, 2011)

8/13/2019 Sokrat Stambolliu, A200 548 126 (BIA Nov. 28, 2011)

1/6

FRIEDMAN, Jeremiah, EsquireKaplan, Friedman Associates, LLP295 DEVONSHIRE, 6TH FLOORBoston, MA 0211 00000

Name: STAMBOLLIU, SOKRAT

U.S. epartment o JusticeExecutive Office for Immigration ReviewBoard o mmigration AppealsOffice o he Clerk5107 Leesburg Pike Suite 2000Falls Church Virginia 22041

DHS/ICE Office of Chief Counsel BOSP 0 Box 8728Boston, MA 02114

A200-548-126

Date of this notice: 11/28/2011Enclosed is a copy o the Board s decision and order in the above-referenced case.

Enclosure

Panel Members:Pauley, Roger

Sincerely,

Donna CarrChief Clerk

Cite as: Sokrat Stambolliu, A200 548 126 (BIA Nov. 28 2011)


2/6

STAMBOLLIU, SOKRAT (A200 548126)26 LONG POND ROADPLYMOUTH, MA 02360

Name: STAMBOLLIU, SOKRAT

U S Department of JusticeExecutive Office for Immigration ReviewBoard o mmigration AppealsOffice o he Clerk5107 Leesburg Pike Suite 2000Falls Church Virginia 22041

DHS/ICE Office of Chief Counsel - BOSP 0 ox 8728Boston, MA 02114

A200-548-126

Date ofthis notice: 11/28/2011

Enclosed is a copy of the Board s decision n the above-referenced case. This copy is beingprovided to you as a courtesy. Your attorney or representative has been served with thisdecision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be removedfrom the United States or affirms an Immigration Judge s decision ordering that you beremoved, any petition for review of the attached decision must be filed with and received by theappropriate court of appeals within 30 days of the date of the decision.

Enclosure

Panel Members:Pauley Roger

Sincerelv.DcnrtL tYVLJ

Donna CarrChief Clerk



3/6

LJ S Department o JusticeExecutive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 2204 I

File: A200 548 126 - Boston, MA Date:In re: SOKRA T STAMBOLLIU a.k.a. Albert KapllanajIN REMOVAL PROCEEDINGSAPPEALON BEHALF OF RESPONDENT: Jeremiah Friedman, EsquireON BEHALF OF DHS: Mama M. Rusher

Assistant Chief CounselCHARGE:

NOV 2 20 1

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)]Present without being admitted or paroled

The Department of Homeland Security ( DHS ) appeals the decision of the Immigration Judgedated August 9, 2011, terminating these removal proceedings. The record will be remanded.

We review Immigration Judges' findings offact for clear error, but questions of law, discretion,and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.1(d)(3)(i), (ii). There isclear error in a factual finding when we are left with the definite and firm conviction that a mistakehas been made. Matter ofR-S-H- 23 I&N Dec. 629,637 (BIA 2003); see also United States v U SGypsum Co. 333 U.S. 364, 395 (1948).

The respondent, a native and citizen of Albania, testified that he entered the United States atMiami, Florida, while in possession of a fraudulently obtained Slovenian passport (I.J. at 3;Tr. at 3 7, 41 . He also presented a copy of the fraudulent passport that he allegedly used to enter theUnited States (I.J. at 3; Exh. 3). While we recognize the DHS s concerns over the respondent'scredibility, we are unable to find clear error in the Immigration Judge's explicit positive credibilityfinding I.J. at 3). We are also satisfied that the respondent's credible testimony, coupled with theevidence presented, is sufficient to support a finding that the respondent is an alien who has beenadmitted to the United States, and, therefore, subject to removal on the grounds of removability setforth in section 237 of the Immigration and Nationality Act, 8 U.S.C. 1227, as opposed to thegrounds of inadmissibility set forth in section 212 ofthe Act, 8 U.S.C. 1182. See section 291 ofthe Act, 8 U.S.C. 1361; Matter ofQuilantan 25 I&N Dec. 285 (BIA 2010). As the DHS has notcharged the respondent with removability under section 23 7 of he Act, termination of hese removalproceedings was proper.

Nonetheless, the respondent appears to be an alien who is present in the United States inviolation of the immigration laws of this country. Accordingly, we deem it appropriate to remandthis matter to the Immigration Judge to provide the DHS the opportunity to lodge additional factual



4/6

A200 548 126

allegations and charges of deportability under section 237 ofthe Act. 1 See 8 C.F.R. 1003.30,1240.1 0( e). f removability is established, the Immigration Judge should determine if he respondentis eligible for any form of relief from removal.

We note that the Immigration's Judge's factual findings support a legal conclusion that therespondent has been admitted to the United States under the visa waiver program. As such, therespondent shall be removed from the United States, without referral to an Immigration Judge fora determination of deportability, once an immigration officer has determined that (1) the respondenthas been admitted to the United States under the visa waiver program and (2) the respondent isdeportable from the United States under one or more of he grounds ofdeportability listed in section23 7 of he Act. 8 C.F. R. 21 7.4(b )(1 . In this case, the record does not indicate that an immigrationofficer has made such a determination. Until such conditions are satisfied, we conclude that theDHS may continue to pursue the respondent's removal from this country in the course of theseremoval proceedings. f Matter ofKanagasundram 22 I&N Dec. 963 (BIA 1999) (holding that,once an immigration officer denies an alien's application for admission into the United States underthe visa waiver pilot program, proceedings must be commenced with a Notice of Referral toImmigration Judge (Form 1-863)).

For the reasons set forth above, the following order is entered.ORDER: The record is remanded to the Immigration Court for further proceedings consistent

with the foregoing opinion and for the entry of a new decision.

Should the DHS decline such an opportunity, termination of removal proceedings would beappropriate as the respondent has overcome the presumption that he entered the United Stateswithout inspection.

2Cite as: Sokrat Stambolliu, A200 548 126 (BIA Nov. 28 2011)


5/6

IN THE REMOVAL CASE OFSTAMBOLLIU, SOKRAT

UNITED STATES IMMIGRATION COURT

JFK FEDERAL BLDG., ROOM 320BOSTON, MA 02203CASE NO.: A200-548-126

-., RESPONDENT

ORDERS[ ~ T h i s i s a memorandum of the Cour t s Decis ion and Orders en te r ed onAu ) v ; 7 I This memorandum i s so le ly fo r t heconvenience of the p a r t i e s . The ora l o r wr i t t en Findings, Decis ion

and Orders i s the o f f i c i a l opinion in t h i s case . ( ) Both p a r t i e swaived i ssuance of a formal ora l dec is ion in the case .The respondent was ordered REMOVED from the United S t a t e s to( } in absen t ia .Respondent s app l i ca t ion for VOLUNTARY DEPARTURE was DENIED andrespondent was ordered removed to , in thea l t e r n a t i v e toRespondent s app l ica t ion fo r VOLUNTARY DEPARTURE was GRANTED un t i l

~ ~ - - - - - - - - - - - - - upon pos t ing a volun ta r y dep a r tu r e bond in the amountof to DHS wi th in f ive bus iness days from the da te o f t h i sOrder, with an a l t e r n a t e Order of removal too r Respondent sha l l presen t to DHS wi th in) t h i r t y days ) s i x t y days from the da te o f t h i s Order, a l lnecessary t r ave l documents for volun ta r y depar tu re .Respondent s app l i ca t ion for ASYLUM was ( ) granted ) denied( ) withdrawn with pre jud ice .( ) sub jec t to the ANNUAL CAP under the INA sec t ion 207(a) (5) .( ) Respondent knowingly f i l ed a FRIVOLOUS asylum app l i ca t ion .Respondent s app l i ca t ion fo r WITHHOLDING of removal under INAsec t ion 241(b) (3} was ( ) granted ( } denied ( ) withdrawn withpre jud ice .Respondent s app l i ca t ion fo r WITHHOLDING of removal under the Tor tureConvention was ( ) granted ( ) denied } withdrawn with pre jud ice .Respondent s app l i ca t ion fo r DEFERRAL of removal under the Tor tureConvention was ( ) granted ( ) denied ( ) withdrawn with pre jud ice .Respondent s app l i ca t ion fo r CANCELLATION o f removal under sec t ion( ) 203 (b) of NACARA ( ) 240A(a} } 240A(b) (1) ( ) 240A(b) (2)of the INA, was ( ) gr an ted ( ) den ied l withdrawn with pre jud ice .I f granted, it was ordered t h a t the DHS i s sue ll appropr ia te documentsnecessary t give e f f e c t to t h i s O r d e ~ . Responde.nt ) . is ( ) - is notsub jec t to the ANNUAL CAP ~ n e r INA sec t ion 240A(e) .Respondent s app l i ca t ion fo r a WAIVER under the INA sec t ion

was ( ) granted ( ) denied ( } withdrawn o r) o t h e r ( ) The cond i t ions imposed byINA sec t ion 216 on the r eponden t s permanent r es iden t s t a tu s were removed.

Respondent. s app l i ca t ion for ADJUSTMENT o f s t a tu s under sec t ionof the ( } INA ( } NACARA ( } wasl gr an ted ( l denied ( } withdrawn with p r e j u d i c e . I f granted,it was ordered t h a t DHS i s sue a l l appropr ia te documents necessary tgive e f f e c t to t h i s Order .

CASE NUMBER: 200-548-126 RESPONDENT: STAMBOLLIU, SOKRATRespondent s s t a tu s was RESCINDED pursuant to the INA sec t ion 246.Respondent s motion to WITHDRAW h i s app l i ca t ion fo r admiss ion was

vr Z


6/6

I 4 .,) granted denied. I f ~ h e respondent f a i l s to abide by any of

the condi t ions d i r ec ted by the d i s t r i c t d i r e c to r of DRS, then thea l te rna te Order of removal sha l l become immediately e f fec t ive withoutfu r ther no t ice o r proceedings: the respondent s h a l l be removed fromthe Uni ted Sta tes toRespondent was ADMITTED as a u n t i l

As a condi t ion of admission, the respondent wasbond .) wi thou t pre jud iceordered to pos t a[ < Case was ( ) ( ) TERMINATED ) wi th( ) ADMINISTRATIVELY CLOSED.Respondent was o r a l l y adv ised of the LIMITATI9N on d i sc re t ionaryr e l i e f and consequences fo r f a i l u r e to depar t as ordered.[ ] I f you f a i l to vo lun ta r i ly depar t when and as requi red, you s h a l lbe sub jec t to c i v i l money pena l ty of a t l eas t 1,000, but not more than5,000, and be i n e l i g ib l e for a pe r iod of 10 yea r s for any fur therr e l i e f under INA sec t ions 240A, 240B, 245, and 248 {INA Sec t ion 240B{d)).[ ] I f you are under a f i n a l or de r of removal, and i you w i l l f u l l y f a i lor refuse to 1) depar t when and as requi red, 2) make t imely app l i ca t ionin good f a i t h fo r any documents necessary for depar ture , o r 3) presen tyourse l f fo r removal a t the tim and place required , or , i you conspi reto o r t ake any ac t ion designed to prevent o r hamper your depar ture , yousha l l be sub jec t to c i v i l money pena l ty of up to 500 fo r each day undersuch v io la t ion . {INA sec t ion 274D(a)) . I f you a r e removable pursuan tto INA 237{a), t hen you sha l l fur ther be f ined and/or impr isoned for upto 10 years . {INA s e c t i o n 243 {a) {1)) .Other :

Date: Aug 9, 2011

APPEAL: ) w i v e d ~ by MATTHEW J . D'ANGELO, JudgeRespondent ) BothDUE BY:

THIS ~ E N T WAS SERVEDTO : rQ] DRS [ ] ALIENDATE: BY:

CERTIFICATE OF S E R V I ~ - ~ : ; - -B W [ ] MAIL [Yl PERSONAL SER:V.ICErff Al ien s ATT/REP [ ] ALIEN c ~ C : u s t o ? l i a l Qf:t,ft:er[ ] COURT STAFF [ JUDGE,.. i c_ : :_>:

.... . .Y2

sokrat stambolliu, a200 548 126 (bia nov. 28, 2011)

Documents