In re Tijam
| Decision Date | 10 December 1998 |
| Docket Number | File 41 236 021.,Interim Decision No. 3372. |
| Citation | 22 I&N Dec. 408 |
| Parties | In re Lumen Berina TIJAM, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 18, 1995, an Immigration Judge found the respondent deportable, denied her a waiver of deportability under section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(H) (1994),1 found her statutorily ineligible for suspension of deportation under section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1) (1994), and denied her the privilege of voluntary departure in lieu of deportation to the Philippines under section 244(e) of the Act. The respondent has appealed from that decision. The respondent's request for oral argument is denied, 8 C.F.R. § 3.1(e) (1998). The record will be remanded to the Immigration Judge for further proceedings.
The respondent conceded deportability on all the charges against her, including a charge of fraud. She claims, however, that the fraud was based on an innocent misrepresentation. On appeal the respondent has challenged the Immigration Judge's findings that she did not merit a section 241(a)(1)(H) waiver in the exercise of discretion and that she was statutorily ineligible for suspension of deportation and voluntary departure. In addition, she has filed a motion to reopen the proceedings and remand the record to the Immigration Judge to allow her to apply for adjustment of status pursuant to section 245 of the Act, 8 U.S.C. § 1255 (Supp. II 1996).
Addressing the respondent's request for a waiver under section 241(a)(1)(H) of the Act, we find it appropriate to remand the record to the Immigration Judge for further proceedings. Based on the recent decision from the United States Supreme Court in INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S. Ct. 350 (1996), we find it appropriate to revisit the issue of the relevant factors to consider in exercising discretion in section 241(a)(1)(H) cases. Specifically, for the reasons set forth below, we decline to limit the factors we may consider in the exercise of discretion, and therefore, we decline to follow the holding in Matter of Alonzo, 17 I&N Dec. 292 (Comm'r 1979). In regard to the other forms of relief requested by the respondent, we find that upon remand to the Immigration Judge the respondent may pursue any relief available to her.
The record reveals that the respondent, a 43-year-old native and citizen of the Philippines, entered the United States as a lawful permanent resident on March 14, 1987, with an immigrant visa issued to her as the unmarried daughter of a United States citizen (her now deceased father). On December 23, 1989, the respondent visited the Philippines and was married in a religious ceremony.
On March 17, 1992, the respondent filed an Application to File Petition for Naturalization (Form N-400). On the application, the respondent listed her 1989 marriage as her only marriage, She also listed four children on the application, two born in the United States subsequent to her entry as a lawful permanent resident, and two born in the Philippines prior to her immigration. The respondent had failed to disclose the two children born in the Philippines on her earlier application for an immigrant visa.
At an interview conducted on September 15, 1993, as part of the respondent's application for naturalization, the respondent, under oath, informed the immigration examiner that she did not include her two eldest children on her visa application because they were born out of wedlock and she did not want the Immigration and Naturalization Service to investigate her. She also told the immigration examiner that she had only one marriage which occurred in 1989. The immigration examiner confronted the respondent with a marriage contract dated January 9, 1982, which indicated that the respondent and her husband were married in a civil ceremony on that date. The immigration examiner also stated that the Service found birth certificates for the respondent's eldest children, which indicated that they were legitimate. The respondent had submitted birth certificates for these children, which stated that they were illegitimate. According to the transcript of the naturalization interview contained in the record, the respondent failed to provide the immigration examiner with an explanation why she concealed her first marriage. On September 17, 1993, the respondent withdrew her naturalization application.2
On November 3, 1994, the respondent was served with an Order to Show Cause and Notice of Hearing (Form I-221), charging her with deportability. At her deportation hearing held on August 16 and 18, 1995, the respondent, her nursing supervisor, and an expert witness in the area of clinical social work testified on the respondent's behalf. Regarding the 1982 marriage contract, the respondent testified that she did, in fact, have a civil marriage ceremony on January 9, 1982. She reiterated, however, that she did not think that the first civil marriage of 1982 was valid because she and her husband asked the person who performed the civil ceremony not to record the marriage. She stated that she and her husband decided to get a marriage contract without actually getting married so that her Saudi Arabian employers would not fire her when they found out that she was pregnant. She again stated that she did not include her two eldest children on her immigrant visa application because she believed that they were illegitimate. She also denied any knowledge of the second set of birth certificates showing that the two eldest children were legitimate, which were submitted by the Service. She indicated that it was not her signature on those birth certificates.
Both the expert witness and the respondent testified that the respondent's United States citizen son, who is 10 years old, suffers from a learning disability. They both stated that it would be in the best interest of the child to remain in the United States, where special programs are available to him to deal with his disability. The respondent also stated that she did not think that her son could receive special assistance for his disability in the Philippines. She also testified that she was concerned about her children's health in the Philippines, especially since they would no longer have access to her health care coverage, and because her son has adverse reactions to mosquito bites.
Both the respondent and the expert witness testified to the fact that the respondent's United States citizen mother suffers from a blood disorder called polycythemia. The respondent testified that, as a registered nurse, she is in a position to monitor her mother's blood and take her to the doctor. She stated that although she and her mother live with her other siblings, she cares for her mother because of her medical background.
The respondent's nursing supervisor testified that the respondent had been a clinical nurse at Holy Cross Medical Center since 1987. She stated that the respondent was in charge of a post-intensive care unit for trauma and cardiopulmonary patients and, at times, supervised other nurses in her unit. The supervisor testified that the respondent did "excellent work," was "trustworthy," and was an "industrious person."
The record reveals that the respondent has been employed as a registered nurse at Holy Cross Medical Center since May 4, 1987, and at the All Saints Health Care Center since May 19, 1993. She makes a good salary and is able to contribute financially to her mother's care and to the rent of the condominium that she shares with her siblings and her mother. She also sends money to her husband and children in the Philippines. She has consistently paid her income taxes and has no criminal violations. The respondent also volunteers at her local church. According to the record before us, to date, the respondent has not filed a visa petition for her husband or her two children in the Philippines.
The respondent claims on appeal that the immigration examiner coerced her into withdrawing her naturalization application by threatening to deport her. She contends that he would not allow her to provide an explanation for the existence of the 1982 marriage contract. The respondent asserts that she and her husband never intended to record the civil marriage. In fact, she claims that they paid the preparer of the marriage contract extra money to prepare the contract, but to not file it. She states that they had the contract prepared because she was pregnant, and she feared that her Saudi Arabian employer would fire her if she had a child out of wedlock. The respondent also states that she believed that the marriage contract was not valid because "it was predated, had an invalid license, lacked...
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