In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal against the respondents and denied their claim that the government was equitably estopped from removing them from the country based on the lead respondent's receipt of a notice from USCIS erroneously stating that an application to adjust to permanent resident status had been granted and that he was authorized to work in the country. The decision was written by Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal against the respondents and denied their claim that the government was equitably estopped from removing them from the country based on the lead respondent's receipt of a notice from USCIS erroneously stating that an application to adjust to permanent resident status had been granted and that he was authorized to work in the country. The decision was written by Member Michael Creppy.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld an order of removal against the respondents and denied their claim that the government was equitably estopped from removing them from the country based on the lead respondent's receipt of a notice from USCIS erroneously stating that an application to adjust to permanent resident status had been granted and that he was authorized to work in the country. The decision was written by Member Michael Creppy.
4158 Lindell Boulevard Saint Louis,, MO 63108 Name: QURESHI, FARZAD SAEED Riders:098-144-821 U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leesb11rg Pike. S11ite 2000 Falls Ch11rc1, l'irginia 220. I OHS / ICE Ofice of Chief Counsel - KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108 A 098-144-820 Date of this notice: 8 /14/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Creppy, Michael J. Sincerely, DO c t. Donna Carr Chief Clerk schuckec Userteam: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013) W . . U.S. Department of Justice Executive Ofce fr Immigation Review Decision of the Board of Immigation Appeals Falls Church, Virginia 2204 l Files: A098 144 820-Kansa City, MO A098 144 821 In re: F ARZAD SAEED QURSHI UZMA FARZAD IN REMOVAL PROCEEDINGS APPEAL Date: ON BEHALF OF RSPONDENTS: Ryan T. Fitzpatick, Esquire ON BEHALF OF DHS: Jayme Salinadi Acting Deputy Chief Counsel CHARGE: AUG 14 2013 Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. 1227(a)(l)(C)(i)] - Nonimmigant - violated conditions of status (both respondents) Lodged: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] - In the United States in violation of law (bot respondents) APPLICATION: Adjustent of status Te respondents, natives and citizens of Pakistan, appeal fom an Immigation Judge's October 13, 2011, decision denying their motion to reconsider an order of removal entered on August 18, 2011, which fund them removable as charged and ordering them removed. The appeal will be dismissed. We review the fndings of fct, including determinations of credibility, made by the Immigation Judge under a "clearly eroneous" standad. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including whether or not the parties have met the relevant burden of proof, and issues of discretion, under a de novo standad. 8 C. F. R. 1003. l (d)(3)(ii). On August 18, 2011, the Immigration Judge issued a order fnding the respondents, a husbad and wife, removable as charged and on October 13, 2011, ordered the respondents removed as they had filed to demonstrate eligibility fr any relief fom removal. In this sae order the Immigation Judge denied the respondent's motion to reconsider the removabilit fnding. We consider the Immigration Judge's second order to be te fnal order of removal in this cae and consider the appeal of the removability deterination as well as the other issues raised by the respondent. Te husband, who is the lead respondent in this cae, entered the United States as a nonimmigant and was authorized to work in this county until November 1, 2005 (Exh. I; Tr. at 19, 23). He admits working beyond this period (Tr. at 43-46). On June 9, 2004, the lead WM ,WW, , ,,@= . T P,,, ,H , 1 MW , , Wf,,F , I m m i g r a n t
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w w w . i r a c . n e t Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013) 4 . A098 144 820 et al. respondent fled a application to adjust his status to lawfl permanent resident ( For 1-485) with United States Customs and Immigation Enfrcement ("USCIS") (Motion, Tab E). 1 On April 19, 2005, this application was denied, but the lead respondent claims to have not received notifcation of this decision at the time (Motion, Tab H; Tr. at 40-41 ). This decision was mailed to the attorey's offce, but wit the lead respondent's name. Then, on August 15, 2005, the lead respondent received a notice fom USCIS concering his employment authoriztion that stated: A review of your record indicates that the Application to Register Permaent Residence or Adjust Status (1-485) you fled with this ofce has been approved .. . . Please note that aliens who are lawl peranent residents of the United States are authorized to engage in employment. Motion, Tab I. The statement that his status had been adjusted was in eror. A alien may adjust his status to lawfl peraent resident pursuat to the requirements of section 245 of the Act, 8 U.S.C. 1255. Other than this statement in dicta, neither the respondent nor the Depament of Homelad Security ("DHS") has provided any evidence that such adjustment occured. A Notice to Appear was then issued on October 5, 2005 (Exh. 1; Motion, Tab J). Although the lead respondent wa told on August 15, 2005, that he had lawfl permanent resident status, there is no evidence such status was ever grated to him. He argues that his actions thereafer were in response to this statement. However, we, like the Immigation Judge, are without authority to apply equitable estoppel to the actions of the DHS. See Matter of Herandez-Puente, 20 I&N Dec. 335 (BIA 1991 ). Equitable estoppel is a judicially devised doctine that precludes a party to a lawsuit, because of some improper conduct on that party's pa, fom assering a claim or a defense, regadless of its substantive validity. Phelps v. Federal Emergenc Management Agency, 785 F.2d 13 (1st Cir. 1986). Estoppel is an equitable fr of action, wt only equitable rights recogized. Keado v. United States, 853 F.2d 1209 (5th Cir. 1988). By contast, this Board, in considering and deterining cases befre it, can only exercise such discretion and authority conferred upon the Atorey General by law. 8 C.F.R. 1003 .1 ( d)(l ). Our jurisdiction is defned by the regulations, and we have no jurisdiction unless it is af ratively ganted by te regulations. Matter of Hernandez-Puente, supra; Matter of Sano, 19 I&N Dec. 299 (BIA 1985); Matter of Zaidan, 19 I&N Dec. 297 (BIA 1985). We are uable to exercise equitable estoppel. For these same reasons, we are without authorit to gant the respondents relief based on the specifc nature of their situation ( Resp. Br. at 12). Given that we ae without power to gant the lead respondent the requested relief through equitable estoppel, we agree with the Immigration Judge that both respondents ae removable as charged. The lead respondent worked without authorization between August 2005, and Febr 2006. He argues that he believed he was authorized to work, based on the eroneous statement by USCIS, but we obsere that a Notice to Appear was sered on him on October 6, 2005, indicating he was not in legal status (Exh. I). In any event, it is clear that he did work without authorization and is removable on this basis. Also the respondents' argument that the DHS must The respondents' motion fled in Immigration Court provided copies of all pertinent documents. References to the Motion in this decision are to this submission). 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013) A098 144 820 et al. proceed against them in rescission proceedings is without merit ( Resp. Br. at 7-8). See section 246 of the Act. 8 U.S.C. 1256. Despite the misstatement, the lead respondent ha not established that he was ever ganted lawfl peranent resident status or that there is any stats to rescind. See section 245 of the Act. In closing, while the respondents have raised allegations of inefective assistance by previous attoreys, they have not complied with the requirements established in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). See Otiz-Puentes v. Holder, 662 F.3d 481 (8th Cir. 20 11); Habchy v. Gonzales, 471 F.3d 858 (8th Cir. Dec 20, 2006); Matter of Compean, Bangley & J-E-C-, 25 I&N Dec. 1 (A.G. 2009); see also Rajyev v. Muksey, 536 F.3d 853 (8th Cir. 2008) (rejecting Constitutional right in removal proceedings to efective assistance of counsel under the Fifh Amendment, but fnding exercise of Board's discretion to reopen proper where respondent was inefectively sered by cousel). The respondents have not submitted ay evidence of alerting the frer counsels or their respective disciplina authorities of the allegations. See Matter of Lozada, supra. As the respondents have no status allowing them to remain legally in the United States, the fllowing order will be entered. ORER: Te appeal is dismissed. 3 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Farzad Saeed Qureshi, A098 144 820 (BIA Aug. 14, 2013) \' UITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMIGRTION REVIEW UITED STATES IMMIGRTION COURT KNSAS CITY, MISSOURI File: A098-144-820 October 13, 2011 In the Matter of FARZAD SAEED QURESHI IN REMOVAL PROCEEDINGS RESPONDENT ) ) ) ) CHARGES: APPLICATIONS: Motion to reconsider; motion for termination; and special request for discretionary relief. ON BEHALF OF RESPONDENT: RYAN T. FITZPATRICK ON BEHALF OF DHS: JAYME SALINARDI ORL DECISION OF THE IMIGRTION JUDGE f :s d h . Re erence ma e to t e August 18, 2011, written decision issued by this Court previously. On July 14, 2011, the respondents had appeared via telephone at a master calendar hearing with counsel and raised a question as to whether the charges of removability against the respondent had previously been sustained by a j udge in the Oakdale, Louisiana Court. That court previously was assigned to hear St. Louis, Missouri I m m i g r a n t
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w w w . i r a c . n e t Immigration cases and subsequently these matters were transferred to the j urisdiction of the Kansas City Court. The tapes of the removal hearing conducted May 21, 2007, were reviewed by the Court and it was determined that allegations 1 through 3 in the Notice to Appear, which was marked as Exhibit 1, had been admitted and allegation 4 and the removal charges had been denied. At one point during the hearing the respondent had admitted that his work authorization had expired in August 2005, and that he did not receive new authorization until February 2006, leaving a period of approximately six months in which he worked without authorization. On the basis of this admission, the presiding Immigration Judge in Oakdale found that Section 237(a) (1) (C) (i) charge of removability had been proven by clear and convincing evidence. Moreover, the Immigration Judge determined that the respondent had fallen out of status on November 1, 2005, and had remained in the United States beyond that date. Therefore, the Immigration Judge also further found that Section 237(a) (1) (B) charge of removability had been proven by clear and convincing evidence as well. See Exhibit lA, Form I-261. The Immigration Judge designated Pakistan as the country of removal. In an order dated August 18, 2011, this Court again found that the charges under 237(a) (1) (C) (i) and Section 237(a) (1) (B) were sustained. Following the entry of that order the respondent filed A098-144-820 2 October 13, 2011 I m m i g r a n t
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w w w . i r a c . n e t - W a motion to reconsider that decision as well as a motion for termination of the proceedings and a request for special discretionary relief. At the hearing today these motions were taken up and argued by counsel and this decision results from those discussions and arguments today. STATEMENT OF LW CONCERNING MOTIONS TO RECONSIDER A Immigration Judge may upon the motion of the alien, reconsider any case in which he has made a decision unless j urisdiction has vested with the Board of Immigration Appeals. See 8 C. F. R. Section 1003. 23(b) (1) and 8 C.F. R. Section 1003. 23(d) (2) . A motion to reconsider must also state the reasons for the motion by specifying the errors of fact or law in the Immigration Judge's prior decision and must be supported by relevant authority. The statements of the respondent's attorney in the motion to reconsider are not considered to be evidence. See Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998}; Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505-506 (BIA 1980) . FINDINGS A CONCLUSIONS The respondent is premising his request for relief today in part upon argument grounded in estoppel. He argues that the respondent was erroneously advised that he had been granted LPR status by USCIS and believed that he then was A098-144-820 3 October 13, 2011 YW ,, 9 ,,IA -, W , ~ -*~ O R,= :: S. I m m i g r a n t
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w w w . i r a c . n e t working with permission and was legally remaining in the United States. He further argues that because of the ineffective assistance of the respondent's former counsel in this matter (an attorney who later was censored for his conduct) the respondent is a victim of unfortunate and defective actions on his behalf by his retained counsel, and that he should not be further victimized in the Immigration system as a result of that. The letter referenced by the respondent is at Exhibit I in his motion to reconsider. This is the letter dated August 15, 2005, advising the respondent that his application and 485 had been approved and that he was authorized to engage in employent. The Notice to Appear originally issued in this matter is dated October s, 2005, approximately two months after the erroneous letter advising the respondent that he was in LPR status. The Government argues that the respondent's motion is filed in excess of 30 days from the order of the Court and therefore is untimely. Further that this Court has no authority or j urisdiction to estop the USCIS from taking actions and canot issue an order purporting to do so. In addition, the Government argues that this Court has no prosecutorial discretion whatsoever and that the decision to proceed or not proceed in an Immigration matter is one that is entirely vested with the Department of Homeland Security and not with the Immigration Judge. The Court believes that the motion perhaps was due A098-144-820 4 October 13, 2011 I m m i g r a n t
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w w w . i r a c . n e t within 30 days, however, I will consider it anyway in that it was filed within 40 days and is not so late as to cause an impossible delay in the court. In addition, it was received prior to the next scheduling hearing which was today, in plenty of time for it to be considered. With regard to the other aspects of the respondent's motion the Court agrees that there is no jurisdiction to order d d h . !h(e" . h . . USCIS to o or not to o somet ing 8 e in t e Immigration Judge's statutory authority. In addition, the equitably fashioned relief of estoppel is not available to the Immigration Judge or in the Immigration Court through any of the enabling federal statutes that this Court is aware of. Further, it is also clear that this Court has no authority with regard to "prosecutorial discretion" and none has been advanced, and no statutes cited or case law that would allow the Court to grant any type of special discretionary relief such as that. Motions to reconsider should be supported by specific errors of law or fact and at this time I see no error of law. Ad the facts are essentially not in dispute at this time with regard to the exhibits and documents furnished by the respondent's counsel, insofar as they set out the letters and the correspondence that went on in this matter from its inception, and provide a complete narrative and time line of the events that have occurred. The Court has found that the respondent is removable A098-144-820 5 October 13, 2011 I m m i g r a n t
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w w w . i r a c . n e t under the two charges previously mentioned. The respondent through counsel does not intend to request any relief from removal but is intending to appeal this decision and obtain relief in the appellate process. Therefore, the following orders will be entered at this time: ORDERS IT IS HEREBY ORDERED that the respondent's motion to reconsider, motion for termination, and special request for discretionary relief is denied. IT IS FURTHER ORDERED that both of the respondents in this matter as named above are to be removed from the United States to Pakistan pursuant to the charges contained in the Notice to Appear in each respective record of proceeding. October 13, 2011 . {' A098-144-820 6 October 13, 2011 I m m i g r a n t
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w w w . i r a c . n e t CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE JOHN R. O'MALLEY, in the matter of: FARZAD SAEED QURESHI A098-144-820 KANSAS CITY, MISSOURI is an accurate, verbatim transcript of the recording as provided by the Executive Office for Inigration Review and that this is the original transcript thereof for the file of the Executive Office for Imigration Review. DANA LINTON (Transcriber) DEPOSITION SERVICES, Inc. NOVEMBER 27, 2011 (Completion Date) I m m i g r a n t
Jaime Traverso, Sr. v. Anita Colvard, Deputy of The Loudon County Shereiff Dept. Assigned To The Adc, in Her Individual and Official Capacities, 818 F.2d 29, 4th Cir. (1987)
Frederick Smallakoff v. Air Line Pilots Association, International, A Non-Profit Association, Twa/alpa, A Non-Profit Association, 825 F.2d 1544, 11th Cir. (1987)