Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)

8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)

1/15

U.S

. e

part

men

t

o

J

ustic

e

Exe

cuti v

e O f

fice f

orIm

m ig

ratio

n ev

iew

Bo

ard

o m

m ig r

atio n

App

eals

ffice

o he

C le r

k

51 0

7 Leesb

urg Pik

e Suite

2000

Falls C

hurch.

Virginia

20 53

0

OH

S/IC

E Of

ficeo

Ch

iefC

oun

sel -

DET

33 3

Mt. E

lliott

S t.

Rm .

204

Detr

oit

l 48

207

Na

me:

OTA

IF AH

SA

LEH

MOH

HAM

ED

A 05

5-7 7

5-9 8

8

Date

o t

his n

otice

: 1/2

6/2 0

15

En

clo se

d is

a cop

y of

th eB

oard

s d ec

isio n

a nd

o r de

r in t

he ab

ove-

refer

ence

d cas

e.

E

nclo

sure

anel

Mem

bers

Guen

dels

berge

rl Jo

hn

S

in ce

rely,

on

nL

A A

D onn a C arr

hief

C

le rk

Us

erte

am: o

cket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Saleh Mohammed Otaifah A055 775 988 (BIA Jan 26 2015)


2/15


3/15

A 55 775

988

Accordi

ngly the follo

wing order wi

ll be entered.

ORDER: Th

e record is re

manded for

further procee

dings consist

ent with the f

oregoing

opinio

n.

Cite as: Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)


4/15

UNITED ST

ATES

DEPARTMENT

OF JUSTIC

E

EX E

CUTIVE O FF

ICE

FOR

IM

MIGRATION

REVIEW

UNITE

D STATES

IMMIGRATION

COU

RT

DETRO

IT, MICHIGA

N

Fi le : AOSS

-775-988

January

18,

201

3

In the Ma

tter of

SALEH MOHHAMED OTA

IFAH

IN

REMOVAL

PROCE

EDINGS

RESPONDEN

T

CHAR

GE:

APPLICAT IO

N :

V

iolat ion of S

ec t ion 2

12 a) 7) A)

i) 1) .

Review of

whe

ther

responde

nt

has ab

andoned h is

s t a tus

ON

BEHALF

OF

RESPONDENT:

PRO

SE

ON BEHALF OF

OH S

: ROSARIO S.

SHOUD

Y

Esqu

ire

D EC

ISION

OF THE IMMIGRAT

ION JUDGE

R

espondent i s a

male,

nat iv

e and c i t i z en

of Yem

en.

The

Depa

rtment

of

Homeland Secur i t

y

i

n i t i a t ed

remov

al

proceedi

ngs

aga in

s t the resp

ondent pu

rsuant to

au thor i ty

conta ined

in

S

ect ion 240

of the

Immigrat

ion

a

nd N

at iona li ty

Act

. These

proceeding

s were

comme

nced with the

Court by

the

f i l i

n g

of the

Notice

to Appe

ar, which

i s dated

Decem

ber 11,

2

010.

At

a

h

ear ing b

efore the Court

, the resp

ondent

admit ted a

l l but one

o f


5/15

the

fac tu a l

a l leg

a t ions ,

but

de

nied t ha t he

had aban

doned

h

is

re s ide

n t s ta tu s because of

a

bsence for

a

l

eng th o f ti

me

exceeding

one year .

e th e

refo re de

nied the

s ing le

charge

of

rem ova

bi l i ty which i

s

the

i s sue

befo

re

th

e Court to

day.

The

evi

dence th

a t the

Court h

as cons idered

in th i s mat t

er

inc ludes

the

follow

ing. e

have

the

Noti

ce to Appear

which i s

d

ated Dece

mber

1

1th marked as

E

xhibi t 1 .

A tt

ached to th

a t i s

a

n

I-

213

Record

of

Depor table

/ Inadmis s i

ble

Alien descr ib

ing

respondent

s

a r r i v a l

a t the

a i rpor

t in

Atlan ta .

There i s the

Reco

rd

of

S

worn

S

tatement

in dmi

nistrat ive Procee

dings

th ree

pages

descr ibi

ng the

in

terv iew.

The

re

i s a w ithdr

awal of

Appl ica t ion

fo r

Admissio

n/Consular

N

oti f ica t io

n ,

a Not ice

to

Detain

R

emove

or

Pre

sent Alien di re

c ted to

D elta

A ir l in es ,

some

ad di t io

na l

ad m

inis t ra t iv

e r

ecords, and t

h e re i s

respondent s passpor t ,

id e n t i f ica t io n

page

h is

permanent

re s

iden t

card

a

nd his M

ichigan i den t i f ic

a t i o n

card, as we

ll as

his Cust

oms Declara t ion

and

the

I-94 paro

l ing him

in to the

U n

ited S

tate s

fo

r pur

pose of

these pr

oceed ings .

F in a l ly ,

t he re

a re som

e ad di t io

na l document

s

inc lu

d ing

re sponden

t s

f inger p

r in ts , and an

F I

request f

o r c l ea rance .

Exhib i t

2 p

resented by

respond

ent

a t

a

he

ar ing

on

August

24

2011

was

a t r ans l a

t i o n of

a judgm

ent in

d ica t ing tha t

respo

ndent

had

been acqui t te

d

from

th

e

f

i r s t

c

ount of th

e

indic t

men t

ag ains

t

him

a f te

r

ver i fying

the

accusa t ion

as fa l

se ,

an

d acq u it ted

fr

om

the

second count of the

indic tm en

t

fo r lack

AOSS-

775-988

Janua

ry 18

2013


6/15

of ev i

dence

and

orde

red th

a t th e

p ro

sec u t

o r s o f f i

c e re

l ease

a

l l

docum

enta

tion b

elong

ing to

th e

a

ccuse

d fr

om pr

oceed

ings i

n

Ye

men.

E x

h ib it

was th

e r

e l ease

fo

rm

with

t r

a n s la

t io n i s su

e d

by th

e D

irec to

r

of the C

entra

l

Priso

n in d ic

a t in g

th a

t

f

o l low

ing

the

ord

ers of t

he Su

preme

Cou

rt p r

e s id e

n t and

th e

S

uprem

e

Comm

ittee r

espon

den t

had

been a c q

u i t ted

from

the ch

arge

of

in

te n t io

n a l

m urd

er. That

was

E x h

ib i t 3.

E xhib it

4

was

a

m edical

s ta tem en t

in d i ca t in g

th a t

respo

nden

t, in

e

men a t t

he Al- A

mal

P s y ch

ia t r i

c H o s

pi ta l ,

h

ad

been

t re

a te d

fo

r

a d iagn

os is

of sc

h izop

h ren i

a . E x

hib i t

5

d u p li

ca te s

o

f the

I-2

13 and

the Re

cord

o

f Sworn

Sta te

m ent

t

h a t

we

re p a

r t o

f

E

xhib i

t 1 .

O

n

th

e da

te

of hear i

ng ,

respo

ndent

prov

ided

a

p

aystu

b

of L

ashes

h Inc

. fo r p

e r iod

in O

ctob

er

of

20

03;

t h a t

was

E xhib

it

6. E x

h ib i t

7 was

ano

the r pa

ystub

f

o r

a

per iod in

2012 a t

th e

lo c a t ion

respondent

i s

c u rre n t ly

working

o r

was a

t th

a t t ime

c

u r r e n

t ly

w

orkin

g. And

the n

E

xh ib i

t

8 was

re spo

nde n

t s

imm

igran

t

v is

a and

t

he

a

p p l i c

a t io n

fo

r same

.

These a r

e th

e do

cume

nts t

h a t wer

e co n

s idere

d by

th e C

ourt .

The

C ou

rt would

no

te th

a t E x

hibi t

8 sho

ws th a

t re

spon

en t w

as

ad

m itted

a

s

the

m a

rried spo

use of

a

c h i

ld o f

a U.S.

c i t i z

e n a

nd

w

as ad

m itted

on

th a t

b as i s

.

These

ar

e th

e do

cumen

ts the C

ourt

has

c

ons id

ered .

T

he

Cour

t has

a

lso

con

sidere

d te

s t imo

ny th a t

respo

nden t

and

h is

w i

tness

prov

ided .

Re

spond

ent in

d ic a

te d th

a t he

had

been

m

arrie

d

i

n Yem

en and

cam

e to

the U nit

ed

S t

a t e s

b

ased

on

h i

s

A

OSS-7

75-988

Jan

uary

18

2013


7/15

der iva t ive s ta tus to h i s wife, tha t he had not been ab le to f ind

work in the United Sta tes i n i t i a l l y .

He went

back to

Yemen, he

came back to

the

United

Sta t e s found work

a t

Lashesh for

a

per iod

of t ime, found

the work essen t i a l ly

exhaust ing

and

not

su f f i c i en t ly

remunerat ive,

and, therefore

re tu rned to

Yemen.

In

Yemen he i nd ica ted t h a t he was a r r e s t ed . He had l ived

with hi s wife in Yemen

before the

ar res t . He had t a lked with

his wife

while

he

was in

j a i l

t o ld

her to

go

back to the United

Sta t e s .

He

was

re l eased a f t e r

hear ings

in Yemen, t r ea t ed in

Yemen

for

a

per iod for the medical condi t ion

and then ,

ul t ima te ly at tempted to re tu rn to the United Sta t e s t o the

address on Sal ina in Dearborn. e t e s t i f i e d

t ha t

he did not

have bank

accounts, he had

not

paid

U.S. t axes

he had supported

himself by a s to re and a khat farm in Yemen, where he grew and

then

so ld the

khat

a t

h i s

s to re .

e

t e s t i f i e d

t ha t

he

i s

es t ranged

from hi s wife , and in

fac t has

not

spoken

with her

for

qui t e some t ime. e

has

a ch i ld and h i s ch i ld

remains

in Yemen

ac tu a l ly apparent ly opera t ing the s to re .

He

does not

have a

good r e l a t i o n sh ip

with

his

fa the r - in - l aw

or in

fac t with

any

other family. e i s now

working

in

the

United Sta t e s and

suppor t ing himself .

Responden t s nephew, a f i f t h -y ea r r e s id en t I be l i eve

in

the United

Sta tes and a permanent res iden t t e s t i f i e d . He

t e s t i f i e d t h a t he i s ac tu a l ly a t

th i s

poin t applying

for

his

res idency.

He

has remained

in

contac t with the respondent ,

who

AOSS-775-988

January

18, 2013


8/15

~

has been l i v i ng

in

Dearborn s ince 2010.

He was diagnosed wi th

t he

sch izophrenia in

Yemen

has been working without much

medica t ion r e c e n t ly

because

of the expense of the drugs or

t r ea tmen t , but

with

a s s i s t a nc e

has

been ab le to

remain

a

littl

b i t more organized . Nonethe less , h i s i s sue s with the

disease

tend to es t r ange him from other family members because the

d i sease

causes him

to

a c t

out in ways which people do

not

f ind

appropr ia te . He i s

working. His

c h i l d remains

in

Yemen

and

t he nephew i nd i c a t e d t h a t he may be s ub j e c t

to

revenge k i l l i n g

in Yemen because desp i t e

t he

fac t t h a t

he

was a c qu i t t e d

of the

charges , the fami ly of t he murdered i nd iv idua l

does

not

necessa r i ly accept t he f ind ings

of

the Cour t to

exonerate

respondent .

That i s

the

tes t imony

the

Court has heard in t h i s ma t t e r

where

the

i s sue

i s

whether

respondent

has

o r

has

not

abandoned

hi s

s t a tu s

in

t he

Uni ted

Sta t e s .

Now

in

t hese mat te r s , per

Matter

o f Wang

Board precedent

from 1988 the Government bears

the

u l t im a te burden

o f

showing

t h a t t he r esponden t s

permanent

re s iden t s t a t u s

has changed

t h a t t he burden i s by c l ea r , unequivocal and convinc ing

evidence .

The

Government i s a ided by t he

s t a t u t o r y presumption

of abandonment of

s t a t u s by

depar tu re fo r more

than

one year .

That

i s a

presumption which

may be overcome

by

evidence

in t h i s

mat te r .

The ques t ion

t r u l y

before the Cour t i s whether respondent

AOSS-775-988

5

January 18 2013


9/15

has

in tended

to

abandon his

s ta tus or

as the evidence has

unfolded,

perhaps

hi s

i n t en t

to ac tu a l ly

res ide in the United

Sta t e s .

In terms

of

i n d i c i a as r e f l ec t ed by the evidence,

respondent has

no proper ty

in

the United St a t e s but

he

does

have proper ty

a

s to re and land in Yemen. Respondent has

apparen t ly not

paid

U.S.

taxes

a l though

t h a t may

have changed

s ince hi s en t ry and his work in the United Sta t e s but t he re i s

no

evidence in

the record t h a t

he has

ye t pa id

t axes .

In

terms of

family, h i s son i s in Yemen. The l a s t

in format ion was t h a t his wife i s in the United

S t a t e s

hi s

fa the r - in - l aw

i s

in the

United

Sta t e s but

they

a re

es t r anged .

e has

not

spoken

to his wife

in

many years and

has

not

spoken

to hi s fa the r - in - l aw

for

qu i t e some t ime.

Respondent s

t es t imony

was

tha t

a t

the

t ime

he

depar ted

the

United

Sta tes in

2003,

hi s in ten t ion was to be

gone

for seven to e igh t

months and

then to

re tu rn . There was

no objec t ive evidence

of t h a t i n t en t

no re tu rn a i r

t i cke t or

othe r sp ec i f i c event

t ha t

would

br ing

respondent

back to the United

Sta tes

a t t ha t t ime. Both of

hi s

f i r s t

v i s i t s were

very shor t two to

t h ree months a t maximum

in

each

i ns t ance .

One

he

did

not

work

because

he

i nd ica ted

he

was

not

able

to

f ind

work. The second t ime he i nd ica ted t h a t

the

work

he

was doing was

too hard and too

exhaus t ing not

su f f i c i en t ly

remunerat ive. n

the

a l t e rn a t i v e

he

has

a

regu la r

job in Yemen,

a

s to re where he s e l l s khat , and

apparen t ly

s

AOSS-775-988

January

18,

2013


10/15

ab le to suppor t h imse l f and h i s family.

The

reason

prof e r red fo r

hi s f a i l u r e

to r e tu rn a f t e r the

l a s t depar tu re

and

befo re

the

December 2010 e n t r y i s t h a t he was

held on a charge of

murder

fo r

which he was a c qu i t t e d .

Respondent s suggest ion

i s

t h a t the charges fo r

which he

was

t aken

i n to cus tody

in

2004

prec luded

him

from e n t e r i ng

again

u n t i l December of

2010.

The evidence

in

the r eco rd sugges t s

t h a t

t he charges c e r t a i n l y proh ib i t ed

him

from en te r ing t he

United

Sta tes befo re 2006, when he was a c qu i t t e d and ordered

r e leased but

he

did

not then en te r the United

St a t e s

for more

than

four year s

and

t he re

i s

l i t e r a l l y no s i g n i f i can t

documentary o r t e s t imonia l

evidence in the

reco rd

as to why

respondent waited

four -p lus years

t o r e t u r n to

the

United

Sta t e s .

That i s t he fac tua l and

ev id en t i a l r ecord

on which

the

Court

i s

r equ i red

to

make

a

de te rmina t ion

in

t h i s

mat te r .

Because o f

the documentat ion

in t he r eco rd concern ing

h i s

evidence of sch izophren ia the Court must cons ide r t he i s sue of

competency in

t h i s mat te r

but having observed

the

respondent

and having observed

h i s

wi tness who

i s

a phys ic ian i n t r a in in g

t e s t i f y t he

Court

i s

convinced t h a t

respondent i s and

has

been

competent

throughout

the

course

of these

proceedings such

t h a t

t

i s

f a i r under the

law

fo r the Court

to

t ake

a c t i on

in t h i s

mat te r .

Fur ther the manner in which

the Cour t

t r i e d

to

s t ru c tu re

t he proceedings by having the Chief Counsel do

t he

es s en t i a l l y

AOSS-775-988

January

18,

2013


11/15

d i r e c t

examin ation

, having

the

C o

urt

p a r t

ic ip a t e in

the

ex

amina tion

of

b

o th respond

en t

and h is witness ,

and by

the Court

giv in

g both

the

res

pondent

and the

witne ss t he op

por tun i ty

to

id

en t i fy any

a

reas wher

e respon

dent or the

wi tness

f e l t

th a t the

que

st io n ing had

no

t

b

een s u f f i c i e n

t ,

th e

Court be l i eves

th a t the

s t ru c tu

ra l

p

rocedures in

t h i s m at

ter have

been s u f f i c

ie n t to

fu l l y

p ro te

c t

r espon

dent s

r ig h t s in th i s

m a t t e r .

Th

e

C

ourt no

tes th a t a t the

M aster C a

lendar hear i

ngs ,

res

pondent

has

f r i e nd

s wh

o cam

e with

him

. At t

he

t ime of

th

e

m e r i ts

hear ing , he

h

ad r e l a t i v

e , who i s

m edical per

son ,

here

with him.

C

onsequently

, on the t o t

a l i t y of the

re co rd ,

the

C ourt be l i e ves

t h a t

no t only i s

responden

t c

ompetent , but

a l so

th a t h i s r

ig h t s

have be

en

fu l l y

pro tec t

ed dur ing

the our

se of

the

se

proceed in

gs.

In eva lua t in g the

i s su e

of

abandonment

and

the pe r iod of

t ime the res

pondent

was gone fr

om the U

nited Sta t e

s i n 2003

to

the end

of 2010,

the

Court notes

t h a t

in th

e G o

vernment s

c los ing

t he re was

an argument

th a

t

t

h e re

was no cont ingen

cy

w

hich exp

la ins

t h a t long

per i

od o f ab

sence. The

C

ourt

disagree

s

to som

e ex ten t w

ith t h a t a

rgument.

The C o

urt c e r ta i n l

y

fi

nds

th a

t

one b

eing a r r

e s t e d fo r i

n te n t i o n a l

mur

der

and

he ld in

cus to

dy d

uring

th

e

course

of

th

ose proce

edings

i s

an

unfores

een

ev

ent

which

do

es excus

e

per iod

o f t ime

in

t h a t seve

n-p lus -yea

r

per iod.

H

owever,

l

ooking

a t

t

he eviden

ce,

looking a t the

AOSS-775-9

88

January

18, 20

13


12/15

docume

ntat ion Exhib i t

2 the judg

ment a c q

u i t t ing resp

ondent wa

s

i ssued

by

the p

re l iminary co

ur t

a t Rada o

n A pri l 6

2006.

The

re l ea

se from p riso

n

i s d ted

on the u

pper

r

ig h t -hand

corner o

f

the d

ocument t

appears

to be Sep

tember 2007

re lea s in

g

respon

dent from

custody.

He was a r re

s t ed on

A pril 20

2004.

A ctual ly he

was a r re s

te d on

February 16

2004 but

then t he re

i s

a date of

tem

porary

a r r e s t

Apr il

20 20

04. In

any event in

2004 he

was a r re s t ed .

No

l a t e r than S

eptember of 2

007

he

was

re lease

d on the

judgment f ind

ing him

acq u i

t ted in Apri l of

2006.

e

was t r ea te

d

for

h is medic

al

cond i t

ion

only f

rom

Se

ptember 7

of

2010 through

November

9

o

f 20

10 in Yeme

n

acco

rding

to Exhib i t

4. T

here

i

s an

unexplaine

d

period

of t h re

e

to

four years where r

espondent

was f

ree from

i n carce ra

t ion

fu l ly

apparent ly able

to

re tu rn

to

the

U nited

S ta te s

ye t d id

not

do so and t

i s a

n

unex

plained absen

ce.

The

Court

a l

so i s

concern

ed t h a t al thoug

h

res

pondent

came

to

the

United Sta t e

s l e f t

came

to the U

nited S t

a t e s and l

e f t

he never

appeare

d to have

fu l ly es t ab

l ish ed himse l f

in the

United

Sta te s ; r a t

h e r t a

ppeared t ha t he

was v i s i t i n g

the

U nited

Sta te s and re

tu rn ing t

o a dom

ici le in

Yeme

n. So

whethe

r

one t r e a t s

th i s m atte

r as

a perma

nent re s id e

n t s ta t u s neve

r

fu l ly a

dopted or and the

C o

urt

w

il l choos

e to t r

e a t t as

a

permane

nt

re s

iden t

s ta tu s ad

opted but t

hen aba

ndoned by

depar tu re

fo

r

an

unexp

lained

lengthy

peri

od of

t ime

wel l more

AOSS-775-

988

January 18

20

13


13/15


14/15

I s

Immigration

Judge

DAVID

H

PARUCH

p

ar

uc

hd

on

Ap

ri

l

4 2

01

3

t

4

:5

3 PM

G

MT

A

O

SS

-7

75

-98

8

1

1

Ja

nu

ar

y

18

2

01

3


15/15

CER TI

FICATE PAGE

I hereby

c e r t i f y

th a t

th

e at ta

che d proce

eding befor

e JUDGE

DAV

ID

H. PARUCH in

the

m a

tter

of:

SALEH

MOH

HAMED

OTAIF

AH

AOSS-775-

988

DETRO

IT MICHIGA

N

i s an accu

ra te verbat im

t r a n s c r

ip t of the rec ord i

n g as

provided

by the

Execut iv

e

O

ff ice fo

r Imm

igration Review

and

th a t t h i s i

s

the o r ig i

n a l t r an

s c r ip t t he r

eo f fo r the

f i l e of t

he Execut ive

O ffice

fo r

Immigra

t ion Review.

) ~ c v n of\

f

JEAN SHIFF

R Transcr

iber}

F

REE STATE

REPORTING Inc .

MARCH

12,

2013

Comp

letion Da

te)

Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)

Documents

Transcript of Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)