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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Saleh Mohammed Otaifah A055 775 988 (BIA Jan 26 2015)
8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
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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)
8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
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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
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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-
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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
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uary
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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
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~
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
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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
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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
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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
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January
18, 20
13
8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
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
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8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
13/15
8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
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
8/9/2019 Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015)
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)
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