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GOMEZ, JUAN CARLOS 83179-004/A041-591-459 FEDERAL DETENTION CENTER P .0. BOX 5010 OAKDALE, LA 71463

FEDERAL DET. CENTER-OAKDALE 2 P.O. Box 1128 OAKDALE, LA 71463

Immigrant & Refugee Appellate Center | www.irac.net

Name: GOMEZ, JUAN CARLOS

A 041-591-459

Date of this notice: 8/30/2013

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

DorutL ca.AA)
Donna Carr Chief Clerk

Enclosure Panel Members: Cole, Patricia A.

Lulseges Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Juan Carlos Gomez, A041 591 459 (BIA Aug. 30, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A041 591 459 - Oakdale, LA

Date:

AUG 3 0 2013

In re: JUAN CARLOS GOMEZ IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Pro se

Immigrant & Refugee Appellate Center | www.irac.net

Scot A. Bearup Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), l&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony

APPLICATION:

Termination

The respondent, a native and citizen of the Dominican Republic, has appealed from an Immigration Judge's April 2, 2013, decision denying his motion to terminate the removal proceedings, finding him removable as charged and ordering him removed to the Dominican Republic. The Department of Homeland Security ("DHS") has filed a response in opposition to the respondent's appeal. The record will be remanded. The respondent was admitted to the United States as an immigrant on January 13, 1988. On September 8, 2010, he was convicted of possession with intent to distribute heroin in violation of 21 U.S.C. 841(a)(I), (b)(l)(c), and (b)( l )(I). The respondent moved to terminate the proceedings, arguing that he derived United States citizenship through his biological father pursuant to the Child Citizenship Act. The Immigration Judge denied the respondent's motion, concluding that the respondent failed to show that he is a United States citizen pursuant to section 320 of the Immigration and Nationality Act, 8 U.S.C. 143 l (a) (Exh. 8). On appeal, the respondent argues that he has presented a legitimate delayed birth certificate showing that his biological father is Carlos George Reyes Almonte and that he meets the other requirements of section 320 of the Act. Section 320(a) of the Act provides in pertinent part that a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: ( l) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

Cite as: Juan Carlos Gomez, A041 591 459 (BIA Aug. 30, 2013)

A041 591 459

The Immigration Judge found that the record contains three versions of the respondent's birth certificate dated 1984, 2002, and 2011 (I.J. Apr. 2, 2013, Denial of Motion to Terminate at 3). The first two birth certificates list Maximo Nestor Gomez-Rodriguez as the respondent's father. The third birth certificate, which was issued almost 30 years after the respondent was born, lists Carlos Jorge Carmen Reyes-Almonte as his father (Exhs. 6, 7A at Attachments A, B, and C). The Immigration Judge stated that the respondent shares the same last name as Maximo Nestor Gomez-Rodriguez and that a delayed birth certificate does not offer conclusive proof of paternity. Thus, she found that, in the absence of more conclusive proof that Carlos Jorge Carmen Reyes-Almonte is his father, the respondent has not met his burden to show that he is a United States citizen. We have held that a delayed birth certificate, even when unrebutted by contradictory evidence, will not in every case establish a person's status as a United States citizen. Matter of Bueno-Almonte, 21 I&N Dec. 1029, 1032 (BIA 1997); Matter of Serna, 16 I&N Dec. 643 (BIA 1978). Specifically, each case must be decided on its own facts with regard to the sufficiency of the evidence. We find that the Immigration Judge made legal conclusions without sufficient factual findings and did not explicitly evaluate the sufficiency of all of the evidence. In particular, the Immigration Judge did not address a sworn affidavit in the record from Carlos George Reyes-Almonte, which states that he is the biological father of Juan Carlos Gomez (Exh. 6). Nor did she state what facts support her decision to reject the third delayed birth certificate as invalid.

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In view of our limited fact-finding authority, we will remand the record for further fact finding and for the issuance of a new decision addressing all evidence relevant to the respondent's claim of derivative citizenship. 8 C.F.R. 1003.l(d)(J)(iv). We express no opinion on whether the delayed birth certificate is authentic or on the issue of paternity generally. We note that the respondent bears the burden of proof. Accordingly, the following order is entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

2
Cite as: Juan Carlos Gomez, A041 591 459 (BIA Aug. 30, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT OAKDALE, LOUISIANA

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File: A041-591-459 In the Matter of ) ) ) )

April 2, 2013

JUAN CARLOS GOMEZ RESPONDENT CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a){2)(A){iii) of the Immigration and Nationality Act, as an alien convicted of an aggravated felony, as defined in Section 101(a)( 43)(B) of the Act. Termination of proceedings (claim to U.S. citizenship).

APPLICATIONS:

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: SCOT A. BEARUP

DECISION OF THE IMMIGRATION JUDGE I. PROCEDURAL AND FACTUAL HISTORY The Department of Homeland Security, in a Notice to Appear, dated October 12, 2012 (Exhibit 1), alleges that the respondent is not a citizen of the United States but a native and citizen of the Dominican Republic. The Department further alleges in that Notice to Appear that the respondent was admitted into the United States at Miami, Florida on January 13, 1988 as an immigrant. However, the Department seeks the respondent's removal from the

,J,.,i:JJIW.1.

United States because they allege that on September 8, 2010, the respondent was convicted in the United States District Court Southern District of Florida for possession with intent to distribute a mixture and substance containing a detectable amount of heroin, and possession with intent to distribute a mixture and substance containing 100 grams or more of heroin. The conviction is in violation of 21 U.S.C. Sections 841(a)(1), (b)(1)(c), and (b)(1)(1). The Department alleges that the respondent was sentenced to 37 months in prison. The respondent first appeared before the Court on December 19, 2012. On that date, the respondent presented affidavits from both of his parents, which indicated that his father was a U.S. citizen and that the respondent had lived in the custody of his U.S. citizen father from 1997 until 1999. The case was reset to determine whether the respondent had established a claim to United States citizenship. On January 30, 2013, the Court found that the respondent had not established that claim. The Court found that the respondent was a native and citizen of the Dominican Republic. The respondent admitted factual allegations 3, 4, and 5. Based on those admissions, the Court found deportability established by evidence which is clear and convincing. The Court further found that the respondent's aggravated felony conviction rendered him ineligible for cancellation of removal for permanent residents, pursuant to Section 240A(a) of the Act, as well as voluntary departure under Section 2408 of the Act. The respondent's aggravated felony conviction would also render him ineligible for asylum under Section 208 of the Act and adjustment of status under Section 245 in conjunction with any waiver. The respondent would have remained eligible to apply for withholding under the Act and under the Convention Against Torture (should his aggravated felony conviction for drug trafficking be found to not be a particularly serious crime). However,

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A041-591-459

April 2, 2013

the respondent testified that he had no fear of being persecuted or tortured should he return to the Dominican Republic. Based on those answers, the Court found no relief available and ordered the respondent removed from the United States. However, upon further review, the Court withdrew the order of removal sua sponte, finding that the Court had used the wrong standard to determine whether or not the respondent was in his U.S. citizen father's legal custody. The case resumed on February 5, 2013 and the parties were given the opportunity to provide additional documents regarding the issue of citizenship. The respondent filed a motion to terminate the proceedings (Exhibit 6) and the Department filed an opposition to the motion, along with other documents (Exhibits 7 and 7A). The Court issued a written decision (Exhibit 8), finding that the respondent had not established the claim to U.S. citizenship. The Court's decision is incorporated by reference. As the Court has found that the respondent has not established the claim to United States citizenship and no other relief available to the respondent, the following order is hereby entered.

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ORDER IT IS HEREBY ORDERED that the motion to terminate be denied; IT IS FURTHER ORDERED that the respondent be removed from the United States to the Dominican Republic based upon the charge contained in the Notice to Appear.

Please see the next page for electronic signature

AGNELIS L. REESE Immigration Judge

A041-591-459

April 2, 2013

Immigrant & Refugee Appellate Center | www.irac.net

A041.-591-459

April 2, 2013

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//s// Immigration Judge AGNELIS L. REESE reesea on May 7, 2013 at 4:22 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A041-591-459

April 2, 2013