U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

Osberg-Braun, Linda, Esq.

Name: GUZMAN-CHAVEZ, AUGUSTO

A 099-226-737

Date of this notice: 2/13/2015

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

DCrutL ct1/VL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Miller, Neil P.
Holmes, David B.
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

OHS/ ICE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Bernstein Osberg-Braun, P.L.

11900 Biscayne Blvd., Ste. 700
Miami, FL 33181

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File:

Date:

A099 226 737 - Miami, FL

FEB 1 3 2013

In re: AUGUSTO GUZMAN-CHAVEZ

MOTION
ON BEHALF OF RESPONDENT:

Linda Osberg-Braun, Esquire

CHARGE:
Notice:

Sec.

237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

Sec.

237(a)(l )(A), I&N Act [8 U.S.C. 1227(a)( l )(A)] Inadmissible at time of entry or adjustment of status under section
212(a)(6)(C)(i), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)]

APPLICATION: Reconsideration

This matter was Jast before the Board on August 20, 2014, when we dismissed the
respondent's appeal from the Immigration Judge's decision finding the respondent subject to
removal as charged in the Notice to Appear, denying the motion for a continuance, and ordering
the respondent removed from the United States.

Our decision also denied the respondent's

motion to remand the record based on additional evidence.

The respondent has filed a timely

motion to reconsider. The Department of Homeland Security (DHS) has not filed a reply, and
the motion is therefore deemed unopposed.

See 8 C.F.R. 1003.2(g)(3). The motion will be

granted and the record will be remanded.

A motion to reconsider must identify

an

error of fact or law in the Board's prior decision.

See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(6); 8 C.F.R.
1003.2(b); Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006) (finding that a motion to reconsider
must allege a material factual or legal error or argue a change in law).
The respondent correctly observes that our last decision erred in concluding that the
respondent did not challenge on appeal the Immigration Judge's finding that the respondent is
subject to removal based on being inadmissible under section 2 l 2(a)(6)(C)(i) of the Act, 8 U.S.C.
1182(a)(6)(C)(i). The respondent was specifically charged with having entered into a marriage
that was fraudulent in order to obtain immigration benefits. Significantly, the Immigration Judge
made the finding of removability without taking testimony (Tr. at 25-26). We also note that the
respondent's attorney advised the Immigration Judge that the respondent had affidavits from his
wife and step-children concerning the validity of the respondent's marriage but these were not
specifically offered into evidence and were not considered (Tr. at 2 I).

The affidavits, which

pre-date the respondent's last hearing by several weeks, were submitted with the respondent's
motion to remand but were not addressed in the Board's last decision.

We are also concerned

Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

fN REMOVAL PROCEEDINGS

'

A099 226 737

that the Immigration Judge relied in making his finding

as

to the section 237(a)(l)(A) charge

solely upon a U.S. Citizenship and Immigration Services (USCIS) decision that demonstrated the
respondent's wife was taking medication for Alzheimer's disease when she was interviewed by
USCIS

(I.J. at 25-26; USCIS decision dated December 15, 2011). Under the circumstances, we

vacate that part of our decision that affirms the finding that the respondent is subject to removal
under section 237(a)(l )(A) of the Act.

Given that the respondent conceded a charge of

Our last decision declined to remand the record to allow the respondent to seek adjustment of
status as the spouse of a Cuban national, who is a lawful permanent resident, on the basis that the
respondent did not file a Form I-601 waiver application with his motion.

However, as the

respondent points out, such a form would be needed only if he were found subject to removal on
1
the section 237(a)(l)(A) charge.

The record before us raises a number of questions about whether the respondent will qualify
for adjustment of status in light of the criminal charges pending against him. However, we find
it appropriate to remand the record for a hearing on the respondent's application.
The following orders will be entered.
ORDER: The respondent's motion to reconsider is granted.
FURTHER ORDER:

The Board's decision dated August 20, 2014, is vacated insofar as it

concluded that the respondent is subject to removal under section 237(a)(l )(A) of the Act.
FURTHER ORDER:

The record is remanded to the Immigration Judge for further

proceedings consistent with the foregoing opinion and for the entry of a new decision.

FOR THEBOARD

On remand, this charge may again be considered after the parties are permitted to present

additional relevant evidence.

We note that should the charge be sustained, the respondent has

submitted a Form 1-601 waiver application with his motion.

Cite as: Augusto Guzman-Chavez, A099 226 737 (BIA Feb. 13, 2015)
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Immigrant & Refugee Appellate Center | www.irac.net

removability under section 237(a)(l)(B) of the Act, removability is not an issue.