.

' U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. Vtrgm1a 22041

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Nightingale, Zachary OHS/ICE Office of Chief Counsel - SFR
Van Der Hout Brigagliano & Nightingale P .0. Box 26449
180 Sutter Street, Fifth Floor San Francisco, CA 94126-6449
San Francisco, CA 94104

Name: KHAN, NASIR ALI A 059-549-769

Date of this notice: 4/26/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Kelly, Edward F.
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Nasir Ali Khan, A059 549 769 (BIA April 26, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executie Office for Immigration Review

f'.alls Church, Virginia 22041

File: A059 549 769 - San Francisco, CA Date:

APR 2 6 2017
In re: NASIR ALI KHAN a.k.a. Nasir Ali Kahn

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Zachary Nightingale, Esquire

ON BEHALF OF DHS: Bridget L. Park

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -

Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment

Lodged: Sec. 237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] -

Convicted of crime involving moral turpitude

237(a)(2)(A)(ii}, l&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] -

Convicted of two or more crimes involving moral turpitude

APPLICATION: Termination; cancellation of removal under section 240A(a) of the Act

The respondent, a native and citizen of India and lawful permanent resident of the United
States, appeals from the Immigration Judge's decision dated January 23, 2015, which found that
he was removable as charged and denied his application for cancellation of removal under
section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. 1229b(a).1 The parties have
provided arguments on appeal. The appeal will be sustained, and the record will be remanded.

We review Immigration Judges' findings of fact for clear error, but we review questions
of law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.l(d)(3}(i), (ii).

The record shows, in pertinent part, that on January 20, 2009, the respondent was convicted
after a jury trial of charges including leaving the scene of an injury accident under Cal. Veh.
Code 2000l(a}, for which he was sentenced to confinement for 3 years, stayed (Exh. 2). The

1 As noted in the decision, the Immigration Judge previously pretermitted the respondent's other
applications for relief, which the respondent did not dispute (l.J. at 5 n.3).

Cite as: Nasir Ali Khan, A059 549 769 (BIA April 26, 2017)
A059 549 769

Department of Homeland Security (DHS) charged the respondent as removable under section
237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(i) (convicted
of crime involving moral turpitude) (Exh. IA). The respondent contested the charge and filed a
motion to terminate proceedings. The Immigration Judge concluded that the respondent was
removable as charged under section 237(a)(2)(A)(i) of the Act, finding that the conviction was
not categorically for a crime involving moral turpitude but that, under the modified categorical

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approach, the record of conviction showed that the conviction was for a crime involving moral
turpitude (I.J. at 2-4).

The state statute at issue here, Cal. Veh. Code 2000l(a), entitled "Duty to stop at scene of
injury accident," provides:

The driver of any vehicle involved in an accident resulting in injury to any person,
other than himself or herself, or in the death of any person shall immediately stop
the vehicle at the scene of the accident and shall fulfill the requirements of
Sections 20003 and 20004.

Section 20003, entitled "Duty upon injury or death," provides:

(a) The driver of any vehicle involved in an accident resulting in injury to or death
of any person shall also give his or her name, current residence address, the
names and current residence addresses of any occupant of the driver's vehicle
injured in the accident, the registration number of the vehicle he or she is driving,
and the name and current residence address of the owner to the person struck
or the driver or occupants of any vehicle collided with, and shall give the information
to any traffic or police officer at the scene of the accident. The driver also shall
render to any person injured in the accident reasonable assistance, including
transporting, or making arrangements for transporting, any injured person
to a physician, surgeon, or hospital for medical or surgical treatment if it is
apparent that treatment is necessary or if that transportation is requested by any
injured person.
(b) Any driver or injured occupant of a driver's vehicle subject to the provisions
of subdivision (a) shall also, upon being requested, exhibit his or her driver's
license, if available, or, in the case of an injured occupant, any other available
identification, to the person struck or to the driver or occupants of any vehicle
collided with, and to any traffic or police officer at the scene of the accident.

Section 20004, entitled "Duty upon death," provides:

In the event of death of any person resulting from an accident, the driver of any
vehicle involved after fulfilling the requirements of this division, and if there be
no traffic or police officer at the scene of the accident to whom to give the
information required by Section 20003, shall, without delay, report the accident
to the nearest office of the Department of the California Highway Patrol or office
of a duly authorized police authority and submit with the report the information
required by Section 20003.

Cite as: Nasir Ali Khan, A059 549 769 (BIA April 26, 2017)
A059 549 769

As the Immigration Judge stated in the decision, the United States Court of Appeals for the
Ninth Circuit previously determined that a conviction under Cal. Veh. Code 20001(a) is not
categorically for a crime involving moral turpitude (l.J. at 2-3), because it covers merely failing
to provide all forms of identification. Cerezo v. Mukasey, 512 F.3d 1163, 1169 (9th Cir. 2008).
The Ninth Circuit also stated, without setting forth its analysis, that the statute "is divisible into

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several crimes, some of which may involve moral turpitude and some of which may not." Id.
(quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007)). However, since the
Ninth Circuit decided Cerezo, there have been significant developments in how we analyze
whether a statute is divisible and whether a conviction is for a crime involving moral turpitude.
See Mathis v. United States, _U.S. _, 136 S.Ct. 2243 (2016); Descamps v. United States,
570 U.S. _, 133 S.Ct. 2276 (2013); Matter of Silva-Trevino, 26 l&N Dec. 826 (BIA 2016);
Matter ofChairez, 26 l&N Dec. 819 (BIA 2016).

We do not find that the recent developments referenced above alter the Ninth Circuit's
analysis underlying the determination that a conviction under Cal. Veh. Code 20001(a) is not
categorically for a crime involving moral turpitude. Cerezo, supra, at 1166-69. However, we
may proceed to consider the modified categorical approach, and therefore consider judicially
noticeable facts from the record of conviction, only if the statute is divisible. Descamps, supra,
at 2282. A statute is divisible only if it: (1) lists multiple discrete offenses as enumerated
alternatives or defines a single offense by reference to disjunctive sets of "elements," more than
one combination of which could support a conviction, and (2) at least one (but not all) of those
listed offenses or combinations of disjunctive elements is a "categorical match" to the relevant
generic standard." Matter ofChairez, supra, at 822 (citing Descamps, supra, at 2281, 2283).

The relevant inquiry then becomes, for the statute in question, what constitutes an "element"
of the crime. Descamps, supra, at 2297-98. See Matter of Chairez, supra, at 822-23 (quoting
Mathis, supra, at 2248) (clarifying "elements" versus "means"). California courts have found
that the elements of the offense proscribed by Cal. Veh. Code 20001 are: (1) the failure of the
driver involved in an action resulting in injury to a person to stop and perform the acts required
therein, and (2) knowledge by the driver of the injury. People v. Rocovich, 74 Cal. Rptr. 755,
757 (Cal. Ct. App. 1969) (citations omitted). California Criminal Jury Instructions specify that
the jury must agree that the defendant failed to perform one or more of the enumerated duties,
and must unanimously agree on at least one particular duty that the defendant failed to perform.
CALilC 12.70, Felony Hit and Run.

We find that Cal. Veh. Code 20001(a) is not divisible under the current analytical scheme.
There are two basic elements required to secure a conviction or for a guilty plea; the reference to
the duties set forth in Cal. Veh. Code 20003 and 20004 simply provides various means by
which a defendant may violate Cal. Veh. Code 20001(a). Because the statute is not divisible,
we may not undertake the modified categorical approach in this case and may not examine the
record of conviction. Thus, we will sustain the respondent's appeal.

We find that a remand is required. As discussed above, the respondent is not removable
under section 237(a)(2)(A)(i) of the Act, and the Immigration Judge did not sustain the charge
under section 237(a)(2)(A)(ii) of the Act (l.J. at 4; Exh. IA). However, the Immigration Judge

3
Cite as: Nasir Ali Khan, A059 549 769 (BIA April 26, 2017)
A059 549 769

did not rule on the original charge in the Notice to Appear under section 237(a)(2)(E)(i) of the
Act (l.J. at 4; Exh. 1). Moreover, on appeal, the OHS submitted a new Form 1-261, in which it
seeks to lodge new. allegations against the respondent, and requested a remand. OHS Reply
Brief and Alternative Motion to Remand at 17-20, Tab A. The respondent opposes the requested
remand. The OHS may lodge additional charges at any time during proceedings, limited only by
the existence of a final administrative order. 8 C.F.R. 1003.30, 1003.39. The record will be

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remanded for the Immigration Judge to consider whether the respondent is removable based on
the newly-lodged allegations, as well as the original charge. We defer consideration of the
respondent's eligibility for the requested relief pending the Immigration Judge's final
determination on removability. Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER:
pro OOMi

t
Mg;;=rrut
The record is remanded to the Immigration Judge for further

FdiffiIE BOARD
..
A"

4
Cite as: Nasir Ali Khan, A059 549 769 (BIA April 26, 2017)
 ..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA

Matter of: ) Date: January 23, 2015

)

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Nasir Ali KHAN ) File Number: A059 549 769
)
Respondent ) In Removal Proceedings
)

Sustained Charge: Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, as

amended, as an alien who within five years of admission has been convicted of a
crime involving moral turpitude punishable by a sentence of one year or more.

Application: Cancellation of Removal under INA 240A(a)

On Behalf of Respondent: On Behalf of the DHS:

Zachary Nightingale, Esq. Bridget L. Park, Assistant Chief Counsel
Van Der Hout, Brigagliano, and Nightingale Office of the Chief Counsel
180 Sutter Street, Suite 500 100 Montgomery Street, Suite 200
San Francisco, CA 94104 San Francisco, California 94104

ORDER OF THE IMMIGRATION JUDGE

I. Removability

Respondent is charged with removability under three subsections of section 237(a)(2) of the
Immigration and Nationality Act, as amended ("INA"), based on his criminal convictions of January 20,
2009. These include violations of Cal. Penal Code 191.5(b) (vehicular manslaughter while intoxicated
and with ordinary negligence), with an enhancement under Cal.Vehicle Code 20001(c) (fleeing the scene
of the crime after committing vehicular manslaughter); Cal. Vehicle Code 20001(a) (leaving the scene of
an injury accident); and Cal. Penal Code 273a(b) (child endangerment). See Exhs. 2 and 5. While he
does not dispute the existence of his criminal convictions, Respondent denies that they render him
removable as charged. The Department of Homeland Security therefore has the burden of proving
removability by clear and convincing evidence. See 8 CFR 1240.S(a).

With respect to the charge under INA 237(a)(2)(A)(i), Respondent has argued that 1) he did not
commit the crimes "within five years after ... the date of admission," and 2) none of the crimes involved
moral turpitude. The Court requested confirmation of the manner in which Respondent acquired
permanent resident status. In response, DHS on November 20, 2012 provided a record of Respondent's
admission to the United States as a lawful permanent resident on September 7, 2007, via an immigrant visa
issued in Mumbai under the E34 classification. On June 11, 2013, Respondent acknowledged that he
obtained his lawful permanent resident status via consular processing abroad, rather than through
adjustment of status within the United States. It is beyond dispute that Respondent's arrival in the United

I
 )
States on September 7, 2007 was an "admission," as that term is defined by INA 101(a)(13)(A): ''the
lawful entry of the alien into the United States after inspection and authorization by an immigration
officer." However, because Respondent had previously been present in the United States from 1997 to
2004 following a series of admissions as an H-1B nonimmigrant worker, he maintained his contention that
September 7, 2007 was not the relevant "date of admission" for purposes of the term ''within five
years . .. after the date of admission" in INA 237(a)(2)(A)(i).

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In Matter ofAlyazji, 25 l&N Dec. 397, 406 (BIA 2010), the Board of Immigration Appeals held that
"the phrase 'the date of admission' refers to the date of the admission by virtue of which the alien was
present in the United States when he committed his crime. Thus, to ascertain an alien's deportability under
section 237(a)(2)(A)(i) of the Act, we look first to the date when his crime was committed. If, on that date,
the alien was in the United States pursuant to an admission that occurred within the prior 5-year period, then
he is deportable." At the time of his crimes on March 22, 2008, Respondent was present in the United
States by virtue of his admission as a lawful permanent resident at the San Francisco Port of Entry on
September 7, 2007, based on an immigrant visa issued to him in Mumbai on July 24, 2007. Because his
crimes were committed within five years of this admission, the Court will tum to the question of whether
any of his crimes involved moral turpitude and whether any of his crimes were punishable by a sentence of
one year or more.

As an initial matter, it is clear that Respondent has been "convicted of a crime for which a sentence
of one year or longer may be imposed," since he was actually sentenced to more than one year in prison on
each count of which he was convicted. The remaining question is whether any of Respondent's
t
convictions were for crimes involving moral turpitude. In Cerezo v. Mukasey, 512 F.3d 1163 (9 h Cir.
2008), the Ninth Circuit Court of Appeals examined Cal. Vehicle Code 2000 l (a), which states, "The
driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in
the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the
requirements of Sections 20003 and 20004." These sections in tum require the driver to provide
identifying information for himself and his vehicle to the other parties involved in the accident and to any
police officer present, to render or arrange for medical aid to injured parties, and in the event_ of death to.
make a report to the appropriate police department if no officer is on scene. Calling the issue "close," the
Cerezo panel held that "because the plain language of the statute criminalizes failure to provide all required
forms of identification," the offense was divisible and did not categorically involve moral turpitude. Id. at
1168-69. Because of the very limited information in Cerezo's record of conviction (only an abstract of
judgment), the panel declined to "consider or decide whether any of the ways in which 2000l (a) could be
violated would be crimes involving moral turpitude under the modified categorical approach." Id. at 1169
n.7. In reaching its decision that 20001(a) is not categorically a crime involving moral turpitude, the
Cerezo panel stated:

Our conclusion on this issue is consistent with the Fifth Circuit's decision in
Garcia-Maldonado v. Gonzales, 491F.3d 284, 288-89 (5th Cir. 2007), holding that a
conviction under 550.021 of the Texas Transportation Code, which could be
violated both by reprehensible conduct (leaving the scene of an accident) and by
conduct that was not morally culpable (failing to affirmatively report identifying
information), was not categorically a crime involving moral turpitude. Id. at 1169.

2
 ) _)

Since the Fifth Circuit case was cited with approval by the Ninth Circuit, this Court will examine it
as a source of persuasive authority, while acknowledging that it is not binding on the Court. The
Garcia-Maldonado panel examined a Texas statute that is substantially similar to Cal. Vehicle Code
2000l(a), under which Garcia-Maldonado was convicted of failing to stop and render aid. Both statutes
require a driver involved in an accident causing injury or death to stop at the scene of the accident, 1 to
provide reasonable assistance (including transportation for medical treatment) to any injured parties, and to
provide name, address, driver's license, insurance information, and vehicle registration number. See Cal.

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Vehicle Code 2000l(a), 20003; Texas Transportation Code 550.021, 550.023. The Fifth Circuit
concluded:

We agree with the BIA's conclusion that the failure to stop and render aid after being
involved in an automobile accident is the type of base behavior that reflects moral
turpitude. The subsection of section 550.21 that criminalizes failure to render aid
proscribes behavior that runs contrary to accepted societal duties. Moral turpitude
inheres in this crime because the offense reflects an intentional attempt to evade
responsibility and is intrinsically wrong. Because Garcia's offense under section
550.021 is both morally reprehensible and contrary to the accepted rules of morality
in our society, we find it to be a CIMT for immigration purposes. Id:. at 290.

The Court agrees with this analysis, and concludes that a conviction for violating Cal. Vehicle Code
2000l(a}, if the record of conviction reflects that the offender left the scene of an accident resulting in
injury or death, is likewise a crime involving moral turpitude. The remaining determination to be made is
whether the record of conviction in the present case reflects that Respondent was necessarily found to have
left the scene of the accident, rather than remaining at the scene and merely failing to give all of the required
information. In this regard, the Court notes that Count 2 of the information in Exh. 2 states:

The District Attorney of the County of Contra Costa hereby further accuses NASIR ALI
KHAN, Defendant, of the crime of felony, a violation of VEHICLE CODE SECTION
2000l(a} (LEAVING SCENE OF INJURY ACCIDENT), committed as follows:

On or about March 22, 2008, at Pinole, in Contra Costa County, the Defendant, NASIR ALI
KHAN, who was the driver of a vehicle involved in an accident resulting in injury to Robert
Abar, did knowingly and unlawfully fail to immediately stop the vehicle at the scene of the
accident, and did not fulfill the requirements of sections 20003 and 20004 of the Vehicle
Code.

The jury verdict in tum states, "We, the jury in this case, find the defendant Nasir Ali Khan guilty of
a violation of Section 2000l(a) of the Vehicle Code (leaving the scene of an injury accident) as charged in
Count 2 of the information." Exhibit 2. The Court is therefore satisfied that when the record of
conviction is analyzed under the modified categorical approach, it reflects that Respondent's conviction
under Cal. Vehicle Code 20001(a) necessarily involved a jury finding that he left the scene of an accident
resulting in injury or death.

1 The Texas statute also pennits stopping as close as possible to the scene of the accident, so long as the driver immediately
returns to the scene.

3
 )

Further reinforcing this conclusion is the jury's concurrent finding, with respect to a mandatory
sentence enhancement for Count 1 (vehicular manslaughter while intoxicated and with ordinary
negligence), that the "defendant did flee the scene pursuant to Section 20001(c)" of the Cal. Vehicle Code.
In order for the jury to make this finding, it had to conclude beyond a reasonable doubt that the defendant
willfully failed to stop immediately at the scene of the accident. See Judicial Council of Cal. Crim. Jury
Instruction No.2160 ("To prove this allegation, the People must prove that: l. The defendant knew that [he]
had been involved in an accident that injured another person, or knew from the nature of the accident that it

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was probable that another person had been injured; AND 2. The defendant willfully failed to stop
immediately at the scene of the accident. . ..The People have the burden of proving this allegation beyond
a reasonable doubt.").

Accordingly, the Court finds that Respondent was convicted of violating the portion of Cal. Vehicle
Code 2000 l (a) that criminalizes leaving the scene of an accident resulting in injury or death. In turn, the
Court concludes, for the reasons set forth above in its discussion of Cerezo and Garcia- Maldonado, that
Respondent has been convicted of a crime involving moral turpitude committed within five years of
admission and punishable by a sentence of one year or longer. He is therefore removable as charged under
INA 237(a)(2)(A)(i).

As to the charge under INA 237(a)(2)(A)(ii), the Court agrees with Respondent that he is not
removable on this ground. Sustaining this charge would require finding that the crimes of conviction did
not arise from "a single scheme of criminal misconduct," yet the criminal information makes it plain that all
the violations occurred on March 22, 2008. See Matter of Islam, 25l&N Dec. 637, 639-40 (BIA 2011)
(holding that "the single scheme exception refers to acts, which although separate crimes in and of
themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes
a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of
criminal misconduct," and that "a single scheme must take place at one time, meaning that there must be no
substantial interruption that would allow the participant to disassociate himself from his enterprise and
reflect on what he has done") (citations and quotations omitted).

As to the charge under INA 237(a)(2)(E)(i), the Ninth Circuit has held that Cal. Penal Code
273a(b) is not categorically a "crime of child abuse," while explicitly declining to reach the question of
whether such an offense is categorically a crime of "child neglect." See Fregozo v. Holder, 576 F.3d 1030,
1035 n.4 (9th Cir. 2009). In reaching this conclusion, the panel relied on the Board oflmmigration
Appeals' decision in Matter of Velasquez-Herrera, 24l&N Dec. 503 (BIA 2008), which interpreted the
term "child abuse." The Board, after the decision in Fregozo was issued, stated in Matter .ofSoram, 25
I&N Dec. 378 (BIA 2010), that the Ninth Circuit had misconstrued its holding in Velasquez-Herrera. In
Soram, the Board further established for the first time a unitary definition of the term "crime of child abuse,
child neglect, or child abandonment." However, the Tenth Circuit, in whose jurisdiction Soram arose, has
h
now rejected the Board's definition as impermissibly broad. See Ibarra v. Holder,736 F.3d 903 (10t Cir.
2013). Thus, the state of the law on this point is in flux, to say the least. In light of its ruling sustaining the
charge under INA 237(a)(2)(A)(i), the Court does not find it necessary to rule at this time on whether
Respondent has also been convicted of "a crime of child abuse" or "child neglect" within the meaning of
2
INA 237(a)(2)(E)(i).

2 The Court notes that the record of conviction provided here does not establish which ofthe various alternate acts within the
scope ofthe statute Respondent was convicted ofcommitting, since he was convicted ofCal. Penal Code 273a(b) as a lesser

4
 ) )

II. Eligibility for Relief Sought

On January 10, 2014, Respondent was directed to reply to DHS' motion to pretermit relief under
INA 240A(a), 240B(b), and 245/2 l 2(h), and to state any other relief for which he believes he may be
eligible; he was also to state whether, if he is found ineligible for other relief, he intends to seek voluntary
departure under INA 240B(a). On February 18, 2014, Respondent filed his reply, asserting that he is
eligible for cancellation of removal under INA 240A(a) and stating that he does not intend to seek

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voluntary departure under INA 240B(a).3

Respondent asserts that he meets the requirement of INA 240A(a)(2) that he "has resided in the
United States continuously for 7 years after having been admitted in any status," despite his physical
absence from the United States for three years and four months from May 8, 2004 to September 7, 2007.
Respondent states that he was first admitted to the United States in September 1997 as a nonimmigrant
visitor (a status that was later changed to nonirnmigrant temporary worker), and remained here until May 8,
2004, except for brief trips abroad in 2000 and 2002. For purposes of this discussion, the Court will accept
that Respondent resided continuously in the United States from September 1997 to May 8, 2004, a period of
about six years and eight months. After an absence of three years and four months, Respondent returned to
the United States with an immigrant visa on September 7, 2007 and was admitted as a lawful permanent
resident. Accrual of any residence for purposes of cancellation of removal ended on March 22, 2008, the
date he committed the felony crime involving moral turpitude that made him removable. See INA
240A(d)(l ). The question to be resolved is thus whether his absence of three years and four months, from
May 8, 2004 to September 7, 2007, interrupted his continuous residence for purposes of INA 240A(a)(2).

Respondent takes the position that his residence was not interrupted by his extended absence,
because he at all times maintained the intent to return to the United States as soon as he was permitted to do
so. In the alternative, he argues that his accrual of residence continued for at least the first several months
after his departure from the United States on May 8, 2004, and that he should be deemed to have accrued at
least the four months necessary for him to reach seven years of residence, even if the total length of the
absence eventually interrupted his residence. Respondent also contends that once seven years of
continuous residence have been accrued, a later interruption of such residence does not affect statutory
eligibility for cancellation of removal.4

included offense of Count 3 of the information, Cal. Penal Code 273a(a). Thus the modified categorical approach cannot
fruitfully be employed here.

3 Because Respondent's reply did not dispute (or address) OHS' arguments against eligibility for relief under INA 240B(b)
and 245/212(h), that portion of OHS' motion to pretermit was granted on March 7, 2014.

4 While the Court, for reasons explained later in its decision, does not find it necessary to reach a definitive ruling on this point,
it does note that INA 212(h) requires lawful permanent resident applicants to have "lawfully resided continuously in the United
States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from
the United States." (emphasis added). Similarly, INA 240A(b)(l ) and (b)(2) specify that the necessary period of continuous
physical presence must be "immediately preceding the date of such application." (emphasis added). Congress enacted all these
provisions at the same time that it enacted INA 240A(a) in 1996, yet it did not include an "immediately preceding" clause in
240A(a). "Where Congress includes particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v.
United States, 464 U.S. 16, 23 (1983).

5
 )

OHS takes the position that the continuity of Respondent's residence was interrupted by his May 8,
2004'departure and extended absence, leaving him with six years and eight months of continuous residence,
not enough to meet the requirement of INA 240A(a)(2) that an applicant for cancellation of removal "has
resided in the United States continuously for 7 years after having been admitted in any status."

The term "residence" is defined in INA 10l(a)(33) as "the place of general abode; the place of
general abode of a person means his principal, actual dwelling place in fact, without regard to intent." The

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Ninth Circuit has observed that "Congress's goal in adopting this definition of residence was to make
explicit that one does not have to intend to remain in a place permanently to have 'residence' there."
United States v. Arango, 670 F.3d 988, 997 (9th Cir. 2012). Citing the statute at 10l(a)(33), the Second
Circuit (in a case cited by the Ninth Circuit) has stated, "Residency means an established abode, for
personal or business reasons, permanent for a time. A resident is so determined from the physical fact of
that person's living in a particular place." Rosario v. INS, 962 F.2d 220, 224 (2nd Cir. 1992),.quoted in
Michaelv. INS, 48 F.3d 657, 663 n.5 (2nd Cir. 1995), cited in Arango at 998.

The Supreme Court has also taken pains over the years to distinguish between "domicile" and
"residence" in the context of our immigration and naturalization laws, see, e.g., Holder v.
Martinez-Gutierrez, 132 S.Ct. 2011, 2018 n.3 (2012). In fact, its 1950 discussion of "residence" under the
Nationality Act of 1940 in Savorgnan v. United States, 338 U.S. 491 (1950), soon thereafter became the
basis for our current definition of residence at INA 101(a)(33):

In contrast to such terms as: "temporary residence," "domicile," "removal, with his family
and effects," "absolute removal" or "permanent residence," the new Act used the term
"residence" as plainly as possible to denote an objective fact. To identify the required
p
" lace of residence," it required only that it be the "place of general abode." . . . . [N]o
mention is made of intent, and the actual "place of general abode" is the sole test for
determining residence. The words "place of general abode" . . . seem to speak for
themselves. They relate to the principal dwelling place of a person.

The District Court did not find that [Savorgnan] failed to take up an actual residence or place
of general abode abroad. It found merely that in "July 1941 when she left this country for
Italy she did so without any intention .of establishing a permanent residence abroad or
abandoning her residence in the United States," . ... Under the Act of 1940, the issue is not
what her intent was on leaving the United States, nor whether, at any later time, it was her
intent to have a permanent residence abroad or to have a residence in the United States. The
issue is only whether she did, at any time between July, 1941, and November, 1945, in fact
"reside" abroad. The test of such "residence" is whether, at any time during that period, she
did, in fact, have a "principal dwelling place" or "place of general abode" abroad. She
testified that, from 1941 to 1945, she lived with her husband and his family in Rome, except
for six months' internment in Salzburg, Germany. Whatever may have been her reasons,
wishes or intent, her principal dwelling place was in fact with her husband in Rome where he
was serving in his Foreign Ministry. Her intent as to her "domicile" or as to her "permanent
residence," as distinguished from her actual "residence," "principal dwelling place," and
"place of abode," is not material.

Savorgnan v. United States, 338 U.S. 491, 504-06 (1950) (citations, quotations, and footnotes omitted),

6
 ) )

cited in Alcarez-Garcia v. Ashcroft, 293 F.3d 1155, 1157 n.2 (91h Cir. 2002), as Congress' basis for the
current language of INA 101(a)(33).

The Board of Immigration Appeals has confirmed that the definition of residence in INA
l01(a)(33) applies to the continuous residence requirement of INA 240A(a)(2). See Matter of
Blancas-Lara, 23 I&N Dec. 458, 460 (BIA 2002). The Ninth Circuit Court of Appeals has examined this
same definition in several contexts, and has adopted the Savorgnan standard, concluding that"[t]he inquiry

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is one of objective fact, and one's intent as to 'domicile' or as to her 'permanent residence,' as distinguished
from her actual 'residence,' 'principal dwelling place,' and 'place of abode,' is not material. . Our view is . .
consistent with those taken in other cases that have emphasized the importance of physical presence in
determining 'residence."' Alcarez-Garcia v. Ashcroft, 293 F.3d 1155, 1157-58 (9th Cir. 2002) (citation
and quotations omitted); see also Galindo de Rodriguez v. Holder, 724 F.3d 1147, 1151 (9th Cir. 2013)
(addressing continuous residence requirement of INA 240A(a)(2) and analogizing to Alcarez-Garcia's
application of the same definition of"residence" in the naturalization context, as well as to that of
Rodriguez-Barajas v. INS, 992 F.2d 94 (7th Cir. 1993) in the context of registry under INA 249).

In Manzo-Fontes v. INS, 53 F.3d 280 (9th Cir. 1995), the panel examined whether an applicant for
registry under INA 249 had maintained continuous residence in the United States during a 13-month trip
to Mexico, where he had lived in Arizona for 18 years before his trip; his trip to Mexico was prolonged by
visa complications; he considered Arizona at all times to be his home and intended to return there; he kept
most of his possessions with his aunt and sister in Arizona; he did not speak Spanish well; and he did not
receive any mail in Mexico, get a Mexican driver's license, or open a bank account while in Mexico.
Noting that during his 13 months in Mexico, Manzo-Fontes was intermittently employed and paid taxes in
Mexico, the panel upheld a finding that he had not maintained continuous residence in the United States
despite his continuing ties here during his time in Mexico. The Board of Immigration Appeals has also
applied the continuous residence requirement in the context of INA 249 in Matter ofJalil, 19 I&N Dec.
679, 681 (BIA 1988), examining the case of an applicant who had worked abroad for three years, and
finding,"The mere maintenance of financial interests, retention of a house, furniture, and clothing in the
United States, and the intention to return at a later time are not sufficient to continue residence in the United
States."

While subjective intent is clearly irrelevant to the residence issue, and while the weight of the case
law seems to indicate that an absence of three years and four months while employed abroad would
normally break the continuity of residency in the United States, the inquiry is a factual one and Respondent
was therefore afforded a hearing so that he could present evidence to meet his burden of proof in this regard.

In relevant part,5 Respondent demonstrated that during his three years and four months in India and
Dubai, his wife and son remained in the United States at work and in school respectively, living in a home

5 Respondent largely devoted his hearing time to presenting evidence that during his years abroad, he was caught up in an
extended State Department background check delay over which he had no control, and which he and his wife made repeated
efforts to resolve. Respondent's counsel clarified that he was not making an equitable estoppel argument in this regard, but
wished to show that Respondent's firm intent at all times was to return to the United States as soon as he was granted permission
to do so. In response to Respondent's assertions that his extended stay abroad resulted from a background check delay and was
not prolonged in any way by his own actions, OHS presented evidence to support the idea that Respondent had engaged in
improper conduct in pursuit of his own employment-based visas. However, no evidence was presented that specifically tied the
visa issuance delay to any contemporaneous OHS knowledge of Respondent's alleged misconduct. In any event, he was
eventually granted an immigrant visa as a derivative spouse following-to-join his wife, who had adjusted her status through an
employment-based immigrant visa petition, and the record does not reflect that any waiver of inadmissibility was required of him
at that time.

7
 1 )
the couple had purchased in 2001. Respondent's wife maintained his stateside car, cell phone, and bank
accoilnt during his time abroad. His wife and son briefly traveled abroad to visit Respondent on four
occasions between 2005 and 2007. Respondent's travel to India in May 2004 was occasioned by his
mother's death on April 6, 2004. He initially planned to be away for less than two weeks, including a trip
to the United States consulate to formalize the issuance of his new H-IB visa. However, at the consulate
he was infonned that the visa issuance would be delayed. Respondent at all times maintained the intent to
return to the United States as soon as he could obtain permission to do so. He and his wife, along with

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various attorneys and Congressional aides, made repeated inquiries into the status of his H-1B and
immigrant visa applications. Respondent stated that his original H-lB petitioner, DeepSun, severed ties
with him because of his absence; this appears to have happened within the first few months of his time
abroad. See Exh. 11 at 35. He stated that he then sought new H-lB sponsorship as a web designer via
Caring Associates, a rehabilitation facility in San Pablo, Califomia.6 Respondent was not issued a new
H-1B visa, and turned his attention to obtaining an immigrant visa as a derivative of his wife's
employment-based lawful permanent resident status. He ultimately sued the State Department, OHS, and
the FBI. His immigrant visa was issued on July 24, 2007.

Respondent testified that while in India from May 2004 to October 2006, he performed freelance
work on an occasional, project-by-project basis for a variety of companies, both US-based and foreign; he
described these as small projects for which he was paid relatively little. He also cared for his father, whose
health was not good. The business he had opened in Richmond, California in April 2004 was closed in
June 2004, and his equipment was placed in storage. Beginning in October 2006, Respondent lived and
worked in Dubai, where he held a worker's visa. He described his accommodations there as a shared
room. He used part of the money he earned there to support himself, and sent part to his wife and son. His
United States immigrant visa was issued in July 2007, but he remained in Dubai until September of that year
in order to complete his work commitments there.

Respondent did not report or pay United States taxes on his foreign income on the joint federal tax
returns filed in 2006 and 2007,7 though it appears that he was required to do so by law if filing a joint
return. 8 It appears that in order to file joint federal tax returns in 2006 and 2007, a declaration from
Respondent and his wife would have been required, electing to have him treated as a resident alien for tax
purposes and thus requiring him to report and pay taxes on his foreign income for those years. Because tax
law is complex, the Court will not infer that Respondent or his wife intentionally filed in an improper status
or claimed exemptions for which they were not eligible, but the record does not reflect that Respondent and
his wife provided the necessary resident election declaration with their tax returns, nor that he reported his
foreign income as would have been required had he elected to be treated as a resident alien.

6 OHS presented evidence that cast a different light on Respondent's interactions with DeepSun and Caring Associates, but for
the reasons set forth below the Court does not find it necessary to resolve the conflict between these accounts.
7 The record does not contain enough infonnation for the Court to detennine whether a similar failure exists with respect to the
small amount of money Respondent described earning in India in 2004 and 2005.
8 See IRS Pub. 519 (2007) at 25 ("Generally, you can file as married filingjointly only if both you and your spouse were resident
aliens for the entire tax year, or if you make one of the choices discussed in chapter I to treat your spouse as a resident alien for
the entire tax year."); Id at I 0 ("If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien
and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident. This includes
situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and
the other spouse is a nonresident alien at the end of the year. If you make this choice, you and your spouse are treated for income
tax purposes as residents for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S.
resident. You are both taxed on worldwide income."). It thus appears that in order to file a joint federal tax return in 2006 and
2007, a declaration from Respondent and his wife would have been required, electing to have him treated as a reside(l.t alien for
tax purposes; he then would have been required to report and pay taxes on his foreign income for those years. See id at 9-10.
 ) )
Having reviewed the circumstances of Respondent's absence of three years and four months, the
Couri must now apply the law regarding maintenance of continuous residence to these facts. It is
important to note that this case does not involve a determination of whether a lawful permanent resident has
abandoned his status, and that the standards applicable in such a case are clearly distinguishable, principally
because in that scenario the government bears the burden of proof and intent is an important factor. See
Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003). By contrast, in the present proceeding
Respondent is an applicant for relief from removal and bears the burden of establishing eligibility for the

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relief sought. See 8 CFR 1240.S(d). Moreover, the residence determination "is one of objective fact,
and one's intent as to 'domicile' or as to her 'permanent residence,' as distinguished from her actual
'residence,' 'principal dwelling place,' and 'place of abode,' is not material." Alcarez-Garcia, supra, 293
F.3d at 1157. Thus, while the Court has no doubt that Respondent at all times maintained the intent to
return to the United States as soon as possible, and made substantial efforts to expedite the issuance of the
necessary visa, his intent is not relevant. The fact that his time abroad was prolonged by visa
complications does not alter the equation: in Manzo-Fontes, supra, the panel concluded that the applicant
had failed to maintain continuous residence in the United States during a 13-month trip to Mexico, even
though he had lived in Arizona for 18 years before his trip; his trip to Mexico was prolonged by his efforts
to obtain a visa so that he could return lawfully; he considered Arizona at all times to be his home and
always intended to return there; he kept most of his possessions with his aunt and sister in Arizona; he did
not spea,k Spanish well; and he did not receive any mail in Mexico, get a Mexican driver's license, or open a
bank acc0unt while in Mexico.9 In finding a failure to demonstrate continuous residence, the
Manzo-Fontes panel cited Matter ofJalil, supra, and its holding that "[t]he mere maintenance of financial
interests, retention of a house, furniture, and clothing in the United States, and the intention to return at a
later time are not sufficient to continue residence in the United States." Nor is the presence of
Respondent's wife and child in the home they owned here sufficient to establish that Respondent's
residence remained with his family during his absence. See Alcarez-Garcia, supra (finding that residence
lay in the place of employment once an individual began consistently spending nine months of each year at
the place of employment, and the remaining three months with his parents, wife, and children in the family
home). The Alcarez-Garcia panel noted several decisions that "emphasized the importance of physical
presence in determining 'residence,"' including cases finding that a two and half month stay at a particular
hotel established residence there, as did a nine-month stay at a boarding school. Id at 1158.

Given the weight of this case law, with the passage of three years and four months between
Respondent's departure from and return to the United States; his employment abroad; and the omission of
his foreign income from the United States tax returns for 2006 and 2007 (which he would have had to report
to be considered a resident alien for tax purposes), the Court finds that Respondent has failed to demonstrate
that his lengthy departure did not interrupt his accrual of continuous residence.

The remaining question is whether, as Respondent urges, he can be deemed to have continued to
accrue residence for at least the first four months of his time abroad. It is undisputed that, depending on the
circumstances, an individual could be absent from his principal dwelling place for a period of time such as
four months without necessarily establishing a new residence elsewhere; for example, traveling to various
destinations without spending a significant time at any given place would not establish loss of a prior
residence. See Galindo de Rodriguez v. Holder, 724 F.3d 1147, 1151 {91h Cir. 2013)("The statute does not
treat every dwelling in w hich an alien stays as a new residence; the text instructs courts to take a wider view,
deeming the 'principal, actual dwelling place' and 'the place of general abode' to be the residence.").

9 In the naturalization context, the courts have also found an interruption in the continuity of residence even where the applicant's
nd
absence was prolonged solely for reasons beyond his control. See, e.g., Gildernew v. Quarantillo, 594 F.3d 131 (2 Cir. 2010)
(declining to b ridge a gap in residence for a naturalization applicant whose trip abroad exceeded one year because of his mistaken
inclusion on TSA's "no-fly" list).

Q
 l )
However, Respondent was not moving from place to place during his time abroad, nor was he away
only-for a brief time. From May 2004 to October 2006, he lived with his father in his parents' home in
India. See Exh. 7 (Form DS-230); Exh. 9 (Fonn G-325A). After moving to Dubai in October 2006 to
work there, he lived for the next eleven months in a room in the Bur Dubai district, except for a vacation to
Turkey to meet his wife and son. Given the length of time at each fixed location, the Court concludes that
his "principal, actual dwelling place in fact" was in his parents' home in India from May 2004 to October
2006, and in Dubai from October 2006 to September 2007. Respondent argues that despite his presence in

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India beginning in May 2004, he should be regarded as having continued to reside in El Sobrante, California
until at least September 2004. However, while case law supports the proposition that residence generally
would not be interrupted by a four month trip away from one's home followed by a return to the same
residence, Respondent provides no applicable authority for the proposition that a person is entitled to
continued accrual of residence in the original home during the first portion of a three year and four month
absence from that home. Respondent, as an applicant for relief from removal, bears the burden of
establishing eligibility for the relief sought, and he has not met that burden here.

In light of the foregoing, the following order shall enter:

ORDER

IT IS HEREBY ORDERED that OHS' motion to pretermit Respondent's application for

relief under INA 240A(a) is GRANTED.

IT IS FURTHER ORDERED that Respondent be REMOVED from the United States to

India based upon the charge of removability under INA 237(a)(2)(A)(i).