U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesb11rg Pike, S11ite 2000 Falls Ch11rch, Virginia 22041

Tahbaz, Hedy, Esq. Law Offices of Hedy Tahbaz, P.A. 168 S.E. 1st Street, Suite 902 Miami, FL 33131

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 20 0 Miami, FL 3313 0

Immigrant & Refugee Appellate Center | www.irac.net

Name: ABDE LF ATTAH MO HAM MAD KHAL IL, IS MAIL I BRAA097-659-194

Date of this notice: 3/16/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Malphrus, Garry D. Miller, Neil P.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Ismail Ibrahim Abdelfattah Mohammad Khalil, A097 659 194 (BIA March 16, 2011)

Q.S. Department of Justice

Executive Office fgr Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A097 659 194 - Miami, FL

Date:

MAR 16 2011

In re: ISMAIL IBRAHIM ABDELFATIAH MOHAMMAD KHALIL a.k.a. Ismail Abdelfattah a.k.a. Ismail Ibrahim Abdelfattah Mohammad Khalil a.k.a. Ismail Ibrahim Abdelfattah M. . .Kha. .Tharwat a.k.a. Ismail I. Abdelfattah M.K.T. IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Hedy Tahbaz, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Jill Tavlin Swartz Senior Attorney

APPLICATION: Remand

The Department of Homeland Security ("OHS") appeals the Immigration Judge's decision of January 15, 2009, terminating the respondent's removal proceedings. The appeal will be dismissed. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard, and review all other issues, including whether the parties have met their burden of proof, and issues of discretion, under a standard. 8 C.F.R. 1003. l(d)(3)(i), (ii).

Matter ofA-S-B-, 24 I&N Dec. 493 (BIA 2008).

de

novo

wife filed a petition for alien relative on his behalf (see unmarked Exhs. Form 1-130; State of Florida Marriage Record). The respondent was served with a Notice to Appear on October 23, 2003, and thereafter conceded the charges of removal (Exh. I; I.J. at 2). After the Immigration Court granted several continuances to await adjudication of the pending visa application by the United States Citizenship and Immigration Service ("USCIS"), in December 2007, the respondent obtained a writ of mandamus from the United States District Court in the Southern District of Florida, which compelled the USCIS to act upon the respondent's visa application (l.J. at 2). In February 2008, the USCIS issued a Notice of Intent to Deny the pending visa application, however the Immigration Judge found that a final decision has not yet been issued (l.J. at 3). The Immigration Judge thus properly determined that the USCIS has not complied with the District Court's order (l.J. at 4). We therefore agree with the Immigration Judge that, to ensure compliance with the District Court's order, the respondent's removal proceedings should be terminated. Accordingly, the following order shall be issued. ORDER: The appeal is dismissed.

On August 8, 2003, the respondent married a United States citizen and on the same day, his

Cite as: Ismail Ibrahim Abdelfattah Mohammad Khalil, A097 659 194 (BIA March 16, 2011)

UNITED STATES DE PARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Miami, Florida File No.: A 097 659 194 Thursday, January 15, 2009

In the Matter of ISMAIL ABDELFATTAH Respondent CHARGES: Section 237 (a} {3} (A} of the Immigration and Nationality Act - respondent having failed to notify the Attorney General of current address or furnish additional information as required by the Attorney General. Section 237 (a) {1} (C} {i) of the Immigration and Nationality Act - after admission as a nonimmigrant, failed to maintain nonimmigrant status under which he was admitted. A P PLICATION: Termination. IN REMOVAL PROCEEDINGS

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ON BEHALF OF RESPONDENT: Hedy Tahbaz Esquire 1 68 Southeast First Street Suite 902 Miami, Florida 3313 1

ON BEHALF OF OHS: Christian M. Pressman Assistant Chief Counsel Immigration and Customs Enforcement 333 South Miami Avenue Suite 200 Miami, Florida 33130

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a 28-year-old married male, citizen of Egypt. January 10, 2003, native and

He was admitted to the United States on as a nonimmigrant visitor for pleasure, and as

a condition of his admission and continued stay requird to comply with all registration requirements pursuant to 8 C. F. R. 2 64.l (f}. He was charged on a Notice to Appear, 1 issued

October 23,

2003,

marked into evidence as Exhibit Sukkar.

1 by

Inunigration Judge Elissa M. Thereafter, and denial to 3,

there were admissions to allegations 4 and 5.

1 and 2,

At a continued hearing while

Immigrant & Refugee Appellate Center | www.irac.net

represented by counsel, admitted,

the remaining allegations 3,

4 and 5 were

and the two above charges conceded.

Judge Sukkar found

that the respondent's removability was established by clear and convincing evidence as required by Woodby v. ( 196 6}. Thereafter, INS, 385 U. S. 276

the respondent declined to designate a Judge Sukkar designated the respondent's should removal become necessary. 2003, A visa to

country of removal.

native country of Egypt,

The respondent entered into a marriage on August 8, his spouse, who is a naturalized United States citizen.

petition was filed thereafter in the fall of 2003.

Judge Sukkar

has held this case in abeyance for over five years awaiting an adjudication on that immediate relative visa petition. The

respondent not having been satisfied with the time in which his petition has been pending before the United States Citizenship and Immigration Service went into United States in the Southern District of Florida, where District Court,

Judge Gold entered a

decision of relief granting a writ of mandamus compelling users to act on the petitioner's application, under the Equal Access to Justice Act, relief that would be proper and just. December 17, 2007. granting of attorney fees and granting any other That order was issued on

A 097 659 194

January 15,

2009

In February of 2008,

apparently USCIS issued a Notice of to which the respondent timely

Intent to Deny the visa petition, responded. However,

in the last 10 to 11 months no final The

decision on that pending visa petition has been forthcoming. matter now has fallen before this docket.

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Judge Sukkar's duties

have increased as an administrative manager upon assignment as the Assistant Chief Immigration Judge, this case. year ago, and she has reassigned well over a

Upon review of Judge Gold's decision,

compelling action for a final decision on the pending and this

visa petition of which users has sole jurisdiction, Court has no influence, terminate.

the Court entertained an oral motion to

The Department of Homeland Security is opposed to termination. It notes first it does not have its file, and is

not ready to proceed with the hearing today. file is still before USCIS. n addition,

Presumably that

Department of Homeland

Security notes that it would like the Court to enter an order of removal based on the findings back in 2003 by Judge Sukkar on the initial allegations and charge. The Court noted that in the Bull v. INS, would indicate

Eleventh Circuit Court of Appeals,

that a person in Section 237 proceedings, who has been inspected and admitted,

such as this respondent

should have proceedings As such, the

continued while there is a pending visa petition. Court finds itself in a bit of a Catch 22. in abeyance,

It should hold a case yet

which has been done now for over five years,

A 097 659 194

January 15,

2009

users has not issued a final ruling on their jurisdictional

hearing over the visa petition. Judge Gold, in the interim, intervened over 13 months ago That

granting the writ of mandamus for action in this case. directive or order has not, in the Court's view, Thus,

Immigrant & Refugee Appellate Center | www.irac.net

been completed

by the Department of Homeland Security.

the Court finds in

order to be in compliance with the writ it should terminate these proceedings so users will have both sole jurisdiction, always had, to adjudicate the visa petition and, as it

if upon a The

favorable approval,

to have jurisdiction to adjust status.

Court also believes that it is terminating without prejudice so that if the Department in the future wanted to issue a new Notice to Appear with any additional allegations and/or charges, it

could do so and have the respondent back before the Immigration Court, and therefore, the Department would not suffer any

prejudice while it still attempts to comply with the writ of mandamus from December of 2007. For those reasons collectively, respondent's motion to terminate. orders are hereby entered. ORDER Respondent was found subject to removal based on the two charges contained in the original Notice to Appear of October 23, 2003. the Court will grant the following

Accordingly,

A 097 659 194

January 15,

2009

. .

'

(- '

'l

FURTHER ORDER Upon respondent's oral motion to terminate, hereby granted. that motion is

Immigrant & Refugee Appellate Center | www.irac.net

ANI EL United States Immigration Judge

A 097

659

194

January 15,

2009

.. (
CERTIFICATE PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE J. DANIEL DOWELL,

in the matter of: ISMAIL ABDELFATTAH A 097 659 Miami, 194

Immigrant & Refugee Appellate Center | www.irac.net

Florida

is an accurate,

verbatim transcript of the recording as provided by and that this is the the Executive Office

the Executive Office for Immigration Review original transcript thereof for the file of for Immigration Review.

Donna Lee M.

O:inDCJ.. k fhe__ GH LSJGD

McGarry, T er Inc.

Free State Reporting,

March 12. 2009 (completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-14 7, 4 -channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.