Unpub. BIA Remand Victory: AOS, False Claim

Matthew L. Kolken writes: "Attached is a BIA decision overturning the IJ in Buffalo.  He ruled that my client was statutorily ineligible for adjustment due to an alleged false claim to US citizenship that never happened.  I moved for recusal during the course of proceedings, which was denied.  The Department didn’t the application for adjustment.  The BIA remanded to a new IJ, which causes difficulty because there is only one non-detained IJ in Buffalo now.  I plan to file a motion to terminate and dismiss based on the BIA’s ruling to remand the I-485 back to the service.  Here is the summary of my argument:

The Immigration Judge erred in ruling that the Respondent is not statutorily eligible to adjust his status to lawful permanent resident, because the Respondent was inspected and admitted to the United States, is married to a United States citizen and has an immigrant visa number immediately available to him, is not removable on any criminal related grounds, and a proper review of the record reflects that the Respondent did not at any time falsely represent himself to be a citizen of the United States.  Matter of Barcenas-Barrera, 25 I. & N. Dec. 40 (BIA 2009).

In rendering its decision, the Court engaged in unlawful speculation that was not tethered to the evidentiary record by ruling that the Respondent had made a false claim to United States citizenship.  Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007); Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).  The Court’s evidentiary findings were not supported by record facts.  Saanon v. Holder, 2009 U.S. App. LEXIS 16886 (2d Cir. July 30, 2009).

The Respondent was deprived of a fundamentally fair hearing based on the Court’s denial of the Respondent’s motion to recuse.  It was an error of law for the Court to deny the Respondent’s motion to recuse, because the Court’s impartiality was reasonably questioned. 28 U.S.C.S. § 455(a).  The record reflects that the Court displayed a bias against the Respondent, so much so that an objective, disinterested observer fully informed of the underlying facts would entertain significant doubt that justice would be done absent recusal.  In re Basciano, 542 F.3d 950 (2d Cir. 2008).

The Court abused its discretion by basing the denial of the Respondent’s motion to bifurcate the proceedings on time limitations set forth in the case completion guidelines.  Respondent’s motion was based on good cause, and if granted would have allowed for an independent determination on each application for relief from removal, and would have enabled the Respondent to provide additional evidence relating to his burden of proof for cancellation of removal.  Farooq v. Holder, 2009 U.S. App. LEXIS 16456 (2d Cir. July 27, 2009)."

Matthew L. Kolken, Esq.

Kolken & Kolken

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