tenisini taufalele, a200 673 398 (bia feb. 5, 2016)

8/20/2019 Tenisini Taufalele, A200 673 398 (BIA Feb. 5, 2016)

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Trupiano Kimberly JoTrupiano Law P.C. 5525 South 90 East, Suite 110Salt Lake City UT 84117

Nae: TAUFALELE TENISINI

U.S. Departmen of Justice

Executive Ofce r Imgaon Review

Board of Immig aton ApealsOce of h Clk

5107 leesburg Pik, St 000F'/ Chc Vna 204

DHS/ICE Office of Chief Counsel - SLC 2975 Decker Lake Dr Stop CWest Valle Cit, UT 8119

A 200673398

Date of this notice 2/5/2016

Enclosed s a copy o he Boad's decsio ad order in te above-eeeced case.

closue

Panel Membrs:uy, Rog

Sceely,

Dc C£Doa CarChe ek

Usetea Dck

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

I i g a t & e

u g e e A p p e a t e C e

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a c e t

Cite as: Tenisini Taufalele A200 673 398 (BIA Feb 5 2016)


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U.S. Departmnt of JusticeExecutiveDce r Immgraton Reew

Fa Cuc, Vra 22041

Fie: A200 673 98 - Wes Vaey Ciy, T

ecson of the Boad of mmgaon Appeal

Date

n re ENI AALEE aka Haaoa Fakaouma aka aata Mana akuouma

N REMOVAL PROCEEING

APPEAL AN MOO

ON BEHAL O RPONN Kimbery J Trupia, Eqre

CHRGE

Nice ec 237(a)(l)(B), & A [8 § 127(a)()(B)] n he ted aes i voaton of aw (cceded)

PPLCATO djume f saus; vouy depaure; remad

he respode appeas m the mmigrao udge' eember 16, 204, deiso, deynghs appicaio r adusme of stas uder secti 245(a) he mmgrao ad aioay, 8 C § 55(a), r iure esabsh prma cie egibiy, ad deyig hisateave appato r vtry depaure uder sei 240B(b) of he Ac, 8 C§ 29(), bsed o nuet evdee f gd mra chracter Durig he pedecy of thisappea he respode ed a mti, syed as a mo t repe, aegg eectveassstace of cse and requetng remad he recrd he Deparme f Homeand

ecriy (H) h o responded he record wi be remaded r her prceedigsosise h his decisi

We revew dgs f t, udg crediby dig, r er eror See CR§ 3l(d)(3)(i) see also Mter of JY-C 4 &N Dec 60 (BA 20) Matter of SH-,2 & ec 46 (BA 002) We revie qests f aw, discreio, or jdgme, ad alther sued de v See 8 CFR § 00 l(d)(3)(i)

he wig s re t i dispue he respodent a nave d tze o Tga,eered he ned aes as a mmgra visir ad remaned nger ha auhrzed(J a 23 Tr a 4; xh ) He i he eery a apprved Aie Reaive Pe

(Fm 10) ed o his behaf by hs ied aes ize w (J a ; r a 4) a heighed i 2013, he respde diaed his ie o appy r adjusme of stats pursua ose 45a he ased e arve visa e (IJ. a r a emmgratio Jdge shedued a a earg he resde's adsmet appat reptemer 15, 04 (J a ; r a 45, 7)

At he respodes epember 15, 2014, hearig, hs hecuse requeed a ciucebecase he adjtme apato w impee he ngeprts and medca examnai ad expired a e adavt suppor r the spor nd ot pos wee deetJ a r a 0) See eos (a)(l), (2), d (4) f he ct, 8 §§ 52(a)(),(), (4 (ug heahrelaed, cmia, d pbc harge grunds admssib)

Cite as: Tenisini Taufalele, A200 673 398 (BIA Feb. 5, 2016)


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A00 67 398

Ovr th DHSs objctio, th Immigation Judg continud te rspondnt's cas utiDcmbr 16, 214 IJ at 4; Tr 19, 21). Howvr, at th ecmbr 2014 arng, problemspersistd with te sucincy o te davits o suppot (IJ t 4; Tr at 23-27). Themmigration Judg decind to tr cotinu proceedings a inst concludd tt trsponnt d not stablisd is stattoy eigibiity fr adustmnt o stus (.J. t 4;Tr. at 27) mmigration Judge aso dd the rspont's att requst r voluntryparr on good mora crctr grounds (J t 8) See sctio 240B(b()(B) o th Act see also sction ( o th Act, 8 USC. § ( (dng good mora chractr)

O appa, te rspodnt lgs tat hs ibiiy to dmonstrat prma ci igibiliy frdustment o status and voluntar dpartur was due to t ictiv ssistanc o his prioratoy (Rsp ri t 2; Resp. Motion to Ropen at 2-5). Tis is ssntiay rqust frrma, with requirmts simir to thos fr ropnig See 8 C.FR § 32(c);Mater of Coelho 20 & Dc. 464, 4 71-73 (I 992) Gnray, such motion w ot bgrat nless it stats w and mtrial cts, is suppod by adavits or otr videntiy

matr, d stabiss a prima ci cas o stautoy a discrtionay ligibiliy fr thundryig ri sougt See CF. § 323(b)(3); see also INS v. Doer 52 US 314(1992); aatougui v. Holder 73 F.3d 1230, 124-4 (1th Cir 23) corming tat amotion to ropn soul be suppod by nw vienc stbising a prima cie claim tori; Osei v. INS, 305 F .3d 1205, 1208-09 (10t Cir 2002) Matter of Coelho supra.

In suppo o remad, th rspont s complid wit th procdurlrequirmnts rticulatd in Mer of Lozaa 19 &N Dc 63 7 (B 1988); see also Ose v INS

supra at 129 2. Th respondnt d stte bar complaint aginst s frmr tey,advisd te frmr attoy o t agtios aginst im, nd submitd a motion supportd byan adavit dtiling how attoys prfrmac was dcint nd impactd t

respodnts cse

Spcical, t rspondnt egs tt his frmr counsel di ot prpe him fr thring, dd ot requst that is wi l er taxs, impropry recordd infrmtion o thdavit o suppor, nd did ot nsu that th joint sponsor's advit ws duy xcutd orsuppotd by proo o is Unite Stts citizeship, rsultig in e Immition Judgsconclusion tat th respondnt coud not ovrcom t pubic carg ground in quaiing frdjustment o sttus (Rsp Motion to Reopen at 7-8, Tabs 41-46; Tr at 17-18, 20, 2427).See sectio 22()(4) o t Act sction 213A o t Act, 8 U.S.C § 183a (outlning thstautory rquirments fr the adavit o suppor) 8 C.FR §§ 13.a))(i)), ii), (v),(b)), c))(i)C), c)(2), (ii) (fr the various rquirmnts rat to proper xcution t

advit o suppo wo may t davit o suppo, nd te vince requird todmostrt sucint incom i suppot o te advit) Wit is motio, t rspondnt asoincludd a tr om a accountat stating that th accoutant is working t te rspondnt's o r c s Rs oio o op b spot so as was preuicd whn is oy did ot prpar im fr qustionig about his 2 st, adtat umrous amily mmbrs woud av tstied o is bhal as to is good mora crctri ty ad be sed to do soctors rlevt to th mmigration Jug's denia o voluntarydpaur fr c o good morl charactr (Rsp oio to opn at Tbs 5, 6 7, , 2 1416, 8, 20, 22 J t 68; Tr. t 21) See sction 24b))(B) o t Act

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A00 67 398

We n that reman is arate the terests o ustice. The respoet hasemostrated tat he was prejuice by hs fmer counsels lack o prepaaio acommuncato th e respondet Se 8 F.R. §§ 103.102() (r) (requrg a attoeybefre the Immigration Cout to aequately prepare fr all proceegs a maitan

commucation ith the respoen); Maer of Assaad, 23 & Dec. 553 (BIA 2003)Maer of B-B 22 & Dec 309 311 (BA 1998) Maer of Lozaa supra, at 640ee alo Ochieng v. Mukaey 520 F.3 1110 1115 (10th Cr. 2008) (requrg the respoet toemostrate prejuce orer to estabish ieectie assisace o cousel arratig rema).Here fr istace the respoets por cousel: (1) i ot aequately frm hm o theocmets requre to preset a sucient aait o support een aer cen ececiesere iene b the Immaio Juge (2) i ot prepae hm fr questios he migh beaske about hs criminal history i qualyig fr volutar epatue; an (3) opelyackolege the aait o support was ecent {Tr. at 1721, 25-27; Resp Moton toReope at 3146). oreover pror cosel proere o persuasive evece o rebut theeectie assistace claim ee though the attoey as otie o the respoe's

allegatons Ma o the etie erors pror cousel's perormace hae been rectie bycuret cousel. Notthstag the regog we express o opio as to the ultimae mertso the respoet's applications fr relie. lght o o isposito o this matter we ecle toadress the respodet's assetos o appeal that the recor as t was costited befre emmigratio Juge suppote a grant o ajustmet o stus or oluay epartre.

Upo remand the pates will have an oppoty to supplement the recor ith yocumentao or testmoy the ma choose to peset relevt to the responetsapplcatos fr relie. Howeer we rem the respoet an his cousel tha he sresposble fr presenng a complete applicato fr rele supporte by te requsiteocumetry eece Failre to llow this stction a a recties issued by the

mmigratio Judge ay result i a dig that he is statutorily eligble r ay requeste frso relie See, e.g Maer of IteraoRos 25 &N Dec. 264 266 (BIA 2010).

Accorigly the fllowig orer is etere

ORDER The recor s remae fr ther proceeigs cosistent ith this decso anfr the etry o a e ecisio.

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UNITED SATES DEPARTMENT OF JUSTCEEXECUTVE OFFCE FOR MMGRATON REVEW

UNED SAES MMGRAON COUR

WES VALLEY CY, UTAH

Fie: A200-673398 December 16 2014

n the Matter of

TENSNI AUALELE

RESPONDENT

))))

N EMOVAL POCEEDNGS

CARGE Sectio 237(a)(1)() of the mmigratio ad Nationality Act (Act) asameded i that after admissio as a oimmigrat therespodet remaied the Uited States for a time oger thanpermitted i vioation of the Act or ay other law of the UitedStates.

APPLCATONS Section 25 of the Act - adjustment of status; Section 240 of the

Act - voluntary depature

ON BEHALF OF RESPONDEN GAGE HERBS Esquire660 South 200 ast Suite 402Salt Lake City Utah 84111

ON BEHAF OF HS MND E HOEPPNER Assistat Chief Couse295 South Decker Lake Drve West Vaey Cty Utah 84119

OAL DECSON AND ODER OF TE MMGAON UDGE

The respodet is a 35ear-od married mae ative ad ctize of oga he

Department of omelad Securty issued a Notce to Appear dated June 22 2010

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.�

aegng that the respondent was admtte to te Unted States at Honouu awai, on

or about March 30, 2007, as a nonmmgrant 2 vstor wth authorzaton to eman n

the Unte States for a temporar perod not to excee September 29 2007 Homeand

Securty further aege that te respondent remaned n the Unted States beond

September 29 2007 wtout authorzaton from the Immgraton an aturazaton

Servce or ts successor the Department of omeand Securty omean Securt

charged the respondent wth removabty under Secton 237(a)(1)() of the Act

The respondent through counse amtted a of the factua aegatons set orth

n the Notce to Appear He thereore agreed that he was permtted to reman n te

nted States fr just sx months as a vstor n awa Later the Court receved a copy

of the vsa tat the respondent used to enter the nte States an t specfca imited

the purpose of the responet's vst to the ted States for partcpato n a canoeng

event n Hawa Responent agreed tat he came to the Unted States to partcpate n

a canoe race, but ecded that he d not want to go back to Tonga and wante to sta

nse te Unted States e testfed that hs cousn was n Kona Hawa where the

race took pace. The responent ecded to reocate to Utah and transported hs

cousn's waet wth hm from Hawa to tah The waet ncuded the cousn's dentty

card When te respondent was ater arreste n 2010 poce found one and ony one,

dentt document on the respondent Years aer he took te entt ocument from

Hawa the poce un te cousn etty ocument on te responents person

Te respondent aserted that he accdentaly took te cousns waet when he e

Hawa n 2007 fr Utah e kept the waet for years and asseed that he use t to

ore own as and never reurned he deny car to hs cousn n Hawa because

he d not have s cousn's adress

The respondent was charged wt removabty under Secton 237(a)(1)() of the

A200-673398 2 December 16 2014


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�-.

Ac Respode coceded ha charge herere, he Immigraio Judge susaied

he charge of removab he respode designaed oga as he cour of

remova ad oga was dreced

Aer he respode reocaed o ah he respode marred a cze of he

ied Saes. Befre marrig he ciize, respode had o have firs dvorced hs

oga wife Respode had lef behd Toga his wife ad wo chidren reocaed

o Uah sred a chd wih hs ewfoud reaionshp in ah ad was o abe o mar

hs secod wfe u he frs procured a dvorce from hs frs wfe. Aer he respode

acheved ha he respodes .S czen wfe fed a Form 130 peo whch was

aer approved

he respode was paced i Immigraio Cour remova proceedgs i 200

foowg his arres a a bar i Sa Lake C ah Respode was accused of

sexual assag a umber of wome a he bar hose charges were dsmssed i

Sae ourt bu he accusaos resued .S Immgraio dng he respode

side he ied Saes havig oversaed his ours vsa for ears.

I hese remova proceedgs he respode sough adjusme of saus uder

Secion 245 of he Ac ad voar deparre i he aeraive he respode

prepared hs adusme of saus appicao on Form -485 i 2011 ad se a cop of

o he exas Service Ceer pursua o he bomercs srucios he respodes

S cze sposes peo for he respode was approved March 30 20, over

hree ad a haf ears ago. O Sepember 8, 2013, he Cour schedued he maer fra hearig o he adjusme of saus applicaio Sepember 5 2014. herefore he

respodet ad over ree years o prepare ad submi a documes ecessar for

adusmen of saus sde he ed Saes folowg approva of e wifes 30

peio. hs wold cude he wfe's adav of sppor as se s he sponso fr the

A200-673-398 3 December 6, 204


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adjustment of status application ad, the stant matte a cosposo's adavit of

support. The respondent was given notce o oe yea that the appcation would be

adjudicated September 15 2014

Atough the respondent had years to prepare to preset his adjustment of status

appicatio the respondent was not prepared on September 15 2014 even though he

had a yeas otice that the Court would be hearg the case that aenoon Te

respondents fgepts ad exped he needed to submit new medicals the ada

o suppot was insuciet and te joit sposor did not ave the income tax returns

iled for the cosposors adat o suppot Te espondet requested a cotnuace

so that he could ave additional time to pepare At that point because the espodet's

case was our eas old and because the espodet had ampe oppounty to meet the

documentary requiements o adjustment of status Homelad Securty opposed any

uther continuances Nevertheless oer Homead Securts oppostion te Cou

gated te respodents motio to cotue ad gave the espodet an addtioal

three moths to pepare The matte was scheduled for adjustment of status merts

December 16 20

On that date espondent sti dd not have suicent documetatio o the wfes

aidait of suppot or fr the cosponsors aidavt o suppot Te rspodet

requested a continuance so that he could bing in documents that would be suicient for

the afidavits of support Homelad Secuity aga opposed a cotiuance and because

the espodet had bee gve yeas and multiple contiuancs to pepare the motion

was denied

Bcaus h aiav suor rom the sponsor ad cosposo are isuiciet

the Court is unable to grant adjustment of status.

Respondent applied fr voluntary depatue n te alteative More tha 30 da

A200-673398 4 December 16 2014


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followg a Mate Calenda fo whch the mets date wa et has elaped Theefoe

we ae at the concluio of poceeding fo volutary depatue pupoe Pe

cocluio voluntay depatue i oly avalable at thi tage if the Depatmet of

Homelad Secuity tipulate to pecocluio volutay depaue The Departmet of

Homeland Secuity wa ot i a poitio to do that Theefoe at the coclusio of

thee poceedg oly cocluio volutay depatue wa available

To qualify fo voluntay depatue unde Secto 2408 of the Act epodet

mut etalih that he has been physcally peet i the Uited State fo a peiod of at

eat oe yea mmediately pecedg the date that the Notce to Appea was erved

Repodet mut ao etablish that he has bee a peo of good moal chaacte fo

at leat fve yea mmediately pecedng the applicaton e mut etabish with clea

ad covicg evdece that he has the means to depart the ited State ad ited

to do o e hall be equied to post a voluntay depaue bond e mut be

possesso of a tavel documet that wll aue his lawful eety ito h home

country.

Dcetionay codeation of a application fo volutay departue involves a

wegh of factos cluding the epondet' po Immgatio htory, the length of

h edecy inde the United State ad the extet of h faly buiess ad ocieta

ties to the ited State

the itat mate the epodet tetified peuaivel about his itetion to

depat the Uited State ad h ability to do o He alo pesuaded the Cou though

h tetimoy that he would be able to post a volutary depatue bod

GOOD OAL HAAE

Concluion volutay deparue equie that the epondet ha bee a peso

of good moal chaacte fo at leat five yea immedately pecedig the applica

A200-673-39 5 Decembe 16 2014

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Theefoe the respondent must estabish good moal character fro ecember of 2009

to the pesent The Court is unable to fnd that the respondent has et that buden

The Cout refes the eade of this decision to Exhibts 2 3 5 and 8 in the Record

o Poceedngs These documents nclude police eports and conviction records n the

relatively sho tie that the espondent has been inside the nited States he has been

arrested more than once In 201O the espondent was a egular paton o a ba n Salt

Lake City. Respondent testified that he was a egula paton o this ba He was

accused of sexualy assaulting a numbe of women Those State Cout chages were

dropped

oweve, the Cou notes that when the espondent was arested at the bar he

was found to have one and only one identity document on his person a Hawaii

dentfcaton card nang someone ese he responent testifed that that peson is

his cousn He attempted to persuade the Cour that he obtane that identity docuent

by accdent when travelng fro Hawaii to tah in 2007 Respondent ist arived in the

United States in Kona awaii to participate in a canoe ace There was hs cousin in

Kona Respondent asseted that when he was about to trave fro Hawaii to Utah his

osns walet was fo soe eason on hs lggage and the responent accidentaly

took the wallet and taveled with the identity cad fom Hawaii to Utah years ago in

2007

The espondent has had years to retun that identity docuent to Hawaii and to

the beaer of that docuent Respondent asseed that he was unabe to do so fo

yeas because he dd not have hs cosn's aess he espondent asseted that he

not use te oument t persuae othes that that was hs ientity that he

happened to have the docuent on his peson when he was arrested at the bar The

Cout was not persuaded by this testimony Respondent had on hs person soe

A200673-398 6 Deceber 16 2014


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ee's detity document He possessed that documet for year at a time whe he dd

ot have permio from the US Goverment to be nide the United States

Respodets decson to keep someone ese docmet a docmet that was

geerated i Hawai, for year a negatve actor i aseng the repode t good

mora character from 2009 to the preset

Later n 2012 the respondet wa driving from the city of Murray Utah to the

respodets home a dferet cty i Utah The repodent had acoho in hs

ytem He panned to drive wthout a icese on a freeway from Murray Utah aer

vtng the bar to his home n Soth Jordan Utah Ths mconduct endangered the

ive ad property o other peope Fortuatey on thi occasion the Utah hghway patro

ecountered the repondent o a freeway onramp attempting to enter a highspeed

freeway He wa charged with drvng with acohol n hs ystem ad utimately

covcted by hi pea of guty to mpaired drving This mcoduct and convicton

another negative factor n asesing good mora character

Additioaly the repodent at a time when he wa married to a US citzen iedtaxes a a sige peron That way he woud ot be responibe fr the back taxes that

h wife owed to the US Government If he had ed marred fiing joity then he may

have been resposbe to the US Govern�et for those back taxes. Thi i another

negative factor

The Court dd conider positive factor The respodent abadoned his chidren

i Tonga to etabih a new ie in the United States wthout permsson from the US

Government Neveheess he tetied that he has sent money to his two chidren in

oga r thr educton ad ood h s a postve factor e ao curret y works

and upports his thrd chid that he ired inside the U ted State This is ao a poitive

actor Respode t aso currenty works and is abe to support his chidren with his

A200-673398 7 December 16 2014


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cuent empoyment This is aso a positive facto

Consideing the positive and negatie actos and the totaity of cicumstances,

the Cout is unabe t in that the espondent is has been a peson of goo moa

chaacte inside the United States o the ast ive yeas. Theefoe the Court is unabe

to gant concusion voluntay depatue

ORDERS

T IS HEREBY ORDERED that the esponent's appication f adjustment o

status unde Section 245 of the Act be denie

IT IS HEREBY ORDERED that the espondents appication fo vountay

departue unde Section 240 of the Act be denied

IT IS HEREBY ORDERED that the espondent be emoved fom the nited

States and depoted to Tonga n the chage contained in the Notice to Appea

sgnature

A200673-398

Please ee the next page for electronic

DAVID C ANDERSONImmigation Judge

8 Decembe 16 2014


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/ I s l /

Imigrati on Judge DAV D C. NDERSON

andesda on Mach 2 0 , 20 15 at 2 : 37 PM GT

A200-673-398 9 December 1 6, 21 4

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tenisini taufalele, a200 673 398 (bia feb. 5, 2016)

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