U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigratio11 Appeals Office of the Clerk

5107 Leesburg Pike, S11ite 2000 Falls C/111rc/1, Virginia 22041

ASAD,MUAMARSAYYED 2664 FM 2054 A#042-164-835 TEEN.COLONY, TX 75886

OHS/ICE Office of Chief Counsel

DAL

125 E. John Carpenter Fwy, Ste. 500 Irving, TX 750622324

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Name: ASAD, MUAMARSAYYED

A042-164-835

Date of this notice: 2/8/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Creppy, Michael J.

Cite as: Muamar Sayyed Asad, A042 164 835 (BIA Feb. 8, 2012)

!.S. Department

of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File: A042 164 835 - Dallas, TX In re: MUAMAR SAYYED ASAD IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Pro se

Date:

FEB -8 Z012

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Rosyln Gonzalez 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 237(a)(2)(A)(ii), I&N Act (8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude

Sec.

APPLICATION: Reopening

The respondent, a native of Jordan and citizen oflsrael, appeals the Immigration Judge's decision dated October 6, 2011, denying his second motion to reopen. Section 240(c)(7) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. 1229a(c)(7); 8 C.F.R. 1003.23(b)(l), (3). The Department of Homeland Security has filed an opposition. The respondent's request for a waiver of the filing fees associated with the appeal is granted. See 8 C.F.R. 1003.3(a)(l ), 1003.8. The appeal will be dismissed. 1 We review the findings of fact made by the Immigration Judge, including any determination of credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii); Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 211 (BIA 2010).

1 On September 29, 1997, the respondent appealed the Immigration Judge's decision dated September 2, 1997, denying his applications for asylum and withholding of deportation. On February 24, 1998, the respondent filed a motion to withdraw the appeal with the Board. On March 5, 1998, the Board acknowledged the respondent's withdrawn appeal and returned the record to the Immigration Court without further action.

Cite as: Muamar Sayyed Asad, A042 164 835 (BIA Feb. 8, 2012)

A042 164 835 Upon our de novo review, the Immigration Judge correctly denied the respondent's second motion to reopen. It was barred by numerical and time limitations (I.J. at 5). See sections 240(c)(7)(A), (C)(i) of the Act; 8 C.F.R. 1003.23(b). We agree with the Immigration Judge that the respondent essentially raised the same arguments presented in his first motion to reopen which was filed more than 12 years ago and did not present any newly discovered evidence (l.J. at 5; Respondent's Motion to Reopen, Aug. 10, 2011; Respondent's Motion to Reopen, May 3, 1999). To the extent the respondent's appeal rests on issues previously raised in his two motions, we find that the respondent has not presented issues that were not considered by the Immigration Judge, nor has he identified any errors of fact or law that would alter the outcome of his case. See 8 C.F.R. 1003.l(d)(3)(i), (ii). Moreover, even considering the merits of the respondent's claims, we agree with the Immigration Judge that he failed to provide sufficient evidence establishing that he is entitled to derivative citizenship under former section 321(a) of the Act, 8 U.S.C. 1432(a). See I.J. at 5. In removal proceedings, evidence of foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to the respondent to come forward with evidence to substantiate his citizenship claim. See Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (citing Matter of Leyva, 16 I&N Dec. 118, 119 (BIA 1977)). Here, while the respondent maintains on appeal that his parents' 1982 divorce in Israel and his United States residence with his father in 1989 while under 18 years of age are sufficient to establish his father's legal custody, he failed to meet his burden of proof (1.J. at 5; Respondent's Br. at 6-10; Respondent's Exhs. 2, 3). See Matter of Baires-Larios, 24 l&N Dec. 467 (BIA 2008); see also Nehme v. INS, 252 F.3d 415 (5th Cir. 2001). It appears that the respondent was under 18 years of age when his father naturalized in March 1988 and over 18 years of age when his mother naturalized in September 1993 (see OHS's Motion to Reopen, Sept. 2, 2011, attached Letter from Immigration and Naturalization Services dated July 16, 1999, ). While the respondent still claims that"[c]hildren of divorced Muslim parents are automatically awarded to the custody of their father who has the sole responsibility of raising and provided for the welfare of his children" and cites to the Holy Quran, the respondent, even now, has failed to present any documentary evidence corroborating his claims (Respondent's Br. at 6-7; Respondent's Motion to Reopen at 6-7, Aug. 10, 2011; Respondent's Motion to Reopen, May 3, 1999). Finally, we concur with the Immigration Judge's determination that this case did not present exceptional circumstances to warrant sua sponte reopening (l.J. at 5). See 8 C.F.R. 1003.23(b)(l); Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). Because we have decided the appeal on the preceding basis, it is not necessary to address the respondent's remaining contentions on appeal. INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating as a general rule, courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach); Matter of S-H-, 23 l&N Dec. 462, 465 (BIA 2002). Accordingly, the following order will be entered: ORDER: The respondent's appeal is dismissed.

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06,)
2
Cite as: Muamar Sayyed Asad, A042 164 835 (BIA Feb. 8, 2012)

..-,
I

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION IMMIGRATION COURT 1100 COMMERCE ST., DALLAS, TX ROOM 404 75242 REVIEW

ASAD,

MUAMAR SAYYED

TDJC MICHAEL UNIT 2664 FM 2054 TENNESSEE COLONY, IN THE MATTER OF ASAD, MUAMAR SAYYED TX 75886 FILE A 042-164-835 DATE: Oct 7, 2011

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UNABLE TO FORWARD X

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. WITHIN 30 CALENDAR DAYS OF THE DATE OF THE YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA 22041 FALLS CHURCH,

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS MAILING OF THIS WRITTEN DECISION. PREPARING YOUR APPEAL. AND FEE OR FEE WAIVER REQUEST SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY BOARD OF IMMIGRATION APPEALS

ATTACHED IS A COPY OF THE DECISION OF THE

IMMIGRATION JUDGE AS THE RESULT FILED IN ACCORDANCE 8 U.S.C. 240{c) (6),

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS WITH SECTION 242B(c) (3) 8 u.s.c. OF THE IMMIGRATION AND SECTION 1252B{c) (3) IN DEPORTATION PROCEEDINGS TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS IMMIGRATION COURT 1100 COMMERCE ST., DALLAS, X OTHER: MOTION TO REOPEN TX 75242 ROOM 404 OR NATIONALITY ACT, SECTION

SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS., COURT:

IF YOU FILE A MOTION

(DENIED)

co CC: AGNELLO, E. IRVING, MARY F. STE 500 75062

FF

IMMIGRATION COURT 125 HWY 114, TX,

Cite as: Muamar Sayyed Asad, A042 164 835 (BIA Feb. 8, 2012)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DALLAS, TEXAS

IN THE MATIER OF:

ASAD, MUAMAR

RESPONDENT

) ) ) ) ) )

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IN REMOVAL PROCEEDINGS A 042-164-835

CHARGES:

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA or the Act), as amended, in that at any time after admission you have been convicted of an aggravated felony as defined in Section 101(a)(43) of the Act Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as amended, in that any time after admission he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

Pro Se

Roslyn Gonzalez, Esq. Asst. Chief Counsel- ICE 125 E. John Carpenter Fwy., Ste. 500 Irving, TX 75062-2324

WRITTEN DECISION OF THE IMMIGRATION JUDGE FACTUAL BACKGROUND

The Respondent is a male, native of Jordan and citizen of Israel. Exhibit 1. On or about April 12, 1989 he was admitted to the United States at New York City, New York as a lawful permanent resident. Id. On May 8, 1995 he was convicted in the 283rd

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V.MJI.

:...:.

Criminal District Court of Dallas, Texas for the offense of burglary of a habitation, in violation of Section 30.02 of the Texas Penal Code, for which a four-year sentence was imposed. Id. On May 8, 1995 he was also convicted in the 283rd Criminal District Court of Dallas, Texas for the offense of forgery of a check, in violation of Section 32.21 of the Texas Penal Code. Id. On August 28, 1995 the Respondent was convicted in the 1st Criminal District Court of Dallas, Texas for four separate counts of the offense of forgery of a check, in violation of Section 32.21 of the Texas Penal Code. Id. In addition, these convictions did not arise from a single scheme of criminal misconduct. Id. On June 9, 1997 the former Immigration and Naturalization Service (INS or the Service) personally served the Respondent with a Notice to Appear (NTA), charging him with removability under Sections 237(a)(2)(A)(iii) and 237(a)(2)(A)(ii) of the Immigration and Nationality Act (INA or the Act). Id. On July I, 1997 the Respondent appeared before the Court, pro se, and admitted all of the Service's allegations and conceded the charge under Section 237(a)(2)(A)(iii) of the Act. Thus, the Court found that removability had been established by clear and convincing evidence. At a hearing on September 2, 1997 the Respondent designated his country of removal as Israel. Also at the hearing on September 2, 1997 the Court sustained the Government's charge under Section 237(a)(2)(A)(ii) of the Act. In addition, the Court found the Respondent ineligible for relief, and ordered the Respondent removed to Israel.

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On September 29, 1997 the Respondent appealed the decision of the Immigration Judge to the Board of Immigration Appeals (BIA or Board). On February 24, 1998 the Respondent withdrew that appeal. On May 3, 1999 the Respondent submitted a Motion to Reopen to this Court, arguing that his case should be reopened because he acquired U.S. citizenship through his father. On May 28, 1999 the Court denied the Respondent's Motion, stating that it was untimely and that its arguments held no legal basis. On August 10, 20 I I the Respondent filed a second Motion to Reopen, also arguing that the proceedings should be reopened because he acquired U.S. citizenship through his father. On September 2, 2011 the Department of Homeland Security (OHS or the Government) submitted its Opposition, stating the Respondent's Motion is number barred, is untimely, does not present any new facts, and moreover that the Respondent did not acquire U.S. citizenship through his father. After considering the arguments offered by both parties, the Court is persuaded by the reasoning of the Government, and the Respondent's Motion will be denied.
LEGAL STANDARDS & ANALYSIS

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A motion to reopen must be filed within 90 days of the Court's entry of the order of removal. 8 C.F.R. 1003.23(b)(l). A party may only file one motion to reopen. 8 C.F.R. -1003.23(b)(l ). A motion to reopen will not be granted unless the Respondent establishes a prima

facie case of eligibility for the underlying relief. See INS v. Abudu, 485 U.S. 94, 104

( 1988); INS

v.

Doherty, 502 U.S. 314 (1992). A motion to reopen shall state the new

facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits and other evidentiary material. Id. Furthermore, a motion to

reopen will not be granted unless the Immigration Judge is satisfied that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. Id. A motion to reopen submitted for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and all supporting documents. 8 C.F.R. 1003.23(b)(3). An immigration judge has broad authority to grant or deny a motion to reopen.

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INS

v.

Doherty, 502 U.S. 314, 322 (1992). An immigration judge may deny a motion

even where there is prima facie eligibility for relief, if the relief sought would be denied
as

a matter of discretion. INS

v.

Rios-Pineda, 471 U.S. 444, 449 (1985). A respondent

must therefore establish a prima facie case for the underlying substantive relief sought and must show that he warrants relief in the exercise of discretion, or his motion to reopen will be denied. See e.g., INS
v.

Abudu, 485 U.S. 94 (1988); INS

v.

Doherty, 502

U.S. 314, 315-16 (1992). A respondent requesting a motion to reopen bears a "heavy burden." See Matter of Coelho, 20 I. & N. Dec. 464, 472 (B.l.A. 1992); Matter of Pena

Diaz, 20 I. & N. Dec. 841, 844 (BJ.A. 1994).

Additionally, the Court may exercise its sua sponte authority to reopen in "truly exceptional situations" where the interests of justice would be served. Mauer of G-D-, 22 I. & N. Dec. 1132 (B.l.A. 1999); see also Matter of J-J-, 21 I. & N. Dec. 976 (BJ.A. 1997) (holding that the Court has the discretion to reopen a case sua sponte; however, that discretion is limited to cases where exceptional circumstances are demonstrated).

Here, the Court finds that the Respondent's Motion must be denied for several reasons, as argued by the DHS in its Brief. First, the Respondent's Motion must be denied because it is number-barred; the Respondent already submitted one Motion to Reopen these proceedings on May 3, 1999. Second, the Respondent's Motion is untimely, as motions to reopen must be filed within 90 days of the Court's entry of the order of removal. Third, the Respondent submits this second Motion to Reopen arguing the same legal argument that he brought in his first Motion to Reopen, filed on May 3, 1999, which was denied by this Court on May 28, 1999. Furthermore, the Respondent submits no new, fresh evidence to substantiate his claim that was unavailable when he submitted his first Motion; he only submits a divorce certificate and a death certificate created on February 17, 1982 and April 10, 1975, respectively. Fourth, even if the Court were to consider the Respondent's argument that he acquired U.S. citizenship through his father, the Respondent's Motion would be denied because the Respondent became a lawful permanent resident after his parents divorced.

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See Former INA 321. Moreover, he has submitted no evidence indicating that he was
placed into his father's legal custody following his parents' divorce. Id. Fifth, the Court finds that this case does not present the exceptional circumstances warranting a sua sponte reopening of the proceedings.
CONCLUSION

Accordingly, the following order shall be entered:

.' .

(' "" "} I

ORDER It is HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.

#This __

__

day of October, 2011

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