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

Carty Jr., Amos W., Esq.

Name: GUMBS, NICHOLAS JERMAINE

A 040-159-442

Date of this notice: 1/13/2015

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

[)Cin.JtL ct2IVl.)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Nicholas Jermaine Gumbs, A040 159 442 (BIA Jan. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

5212 Wimmelskafts Gade, Ste. 200

St. Thomas, VI 00802

OHS/ICE Office of Chief Counsel - SAJ

7 Tabonuco St., Suite 300 (Rm 313)
Guaynabo, PR 00968

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virgima 20530

Name: GUMBS, NICHOLAS JERMAINE

A 040-159-442

Date of this notice: 1/13/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

D0ruu- ctVVt.J
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam:

Cite as: Nicholas Jermaine Gumbs, A040 159 442 (BIA Jan. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

P.O. Box 306852

St Thomas, VI 00803

OHS/ICE Office of Chief Counsel - SAJ

7 Tabonuco St., Suite 300 (Rm 31 3)
Guaynabo, PR 00968

GUMBS, NICHOLAS JERMAINE

U.S. Department of Jus t ice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A040 159 442- St. Thomas, VI

Date:

JAN

l 3 2015

In re: NICHOLAS JERMAINE GUMBS

APPEAL
ON BEHALF OF RESPONDENT:

Amos W. Carty, Jr., Esquire

The respondent, a native and citizen of Anguilla, appeals the decision of the Immigration
2
Judge, dated June 10, 2013, ordering his removal from the United States. We will dismiss the
respondent's appeal.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3).
We affirm the hnmigration Judge's decision. The respondent is inadmissible to the United
States under the provisions of section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act,
8 U.S.C. 1182(a)(2)(A)(7)(A)(i)(l), because he is an immigrant who, at the time of his
application for admission, did not possess a valid entry document (l.J. at 1; Exh. 1). The
respondent arrived in the United States on July 20, 2012, after having been absent for more than
1 year (Exh. 1; Tr. at 15). While, according to the Record of Deportable I Inadmissible Alien
(Form 1-213), the respondent did present a Lawful Permanent Resident Card (Form I-551) upon
his application for admission to this country, a Form I-551 is sufficient to allow for an alien's
admission to the United States only if the alien "if seeking readmission after a temporary absence
of less than 1 year."3 8 C.F.R. 21 l.l(a)(2).
1 Removal proceedings before the Immigration Judge in this matter were completed at a
Department of Homeland Security office in St. Thomas, Virgin Islands (see OPPM No. 04-06).

The Immigration Judge conducted the hearings there remotely from the Immigration Court in
Guaynabo, Puerto Rico, via video teleconference pursuant to section 240(b)(2)(A)(iii) of the Act.
2

The respondent, through counsel, claims that, on June 5, 2013, he mailed a Form 1-193 to the
Immigration Court and, on June 14, 2013, he filed a motion to reconsider. However, neither of
those filing are currently present in the record of proceedings.
3

There are exceptions to the rule that a Form 1-551, in itself, is sufficient to allow for an alien's
the admission to the United States only if the alien is seeking readmission after a temporary
absence of less than 1 year. For example, in certain circumstances, an alien seeking readmission
after a temporary absence of more than 1 year may present a Form 1-551 if he is seeking
readmission after any temporary absence connected with his or her duties as a crewman or he is
an employee of the United States government. See 8 C.F.R. 21 l.l(a)(2), (5), (6), (7).
However, the respondent does not meaningfully argue that he is entitled to an exception to this
rule.

Cite as: Nicholas Jermaine Gumbs, A040 159 442 (BIA Jan. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A040159 442

The Immigration Judge adVised the respondent that he could seek a waiver of the
requirement that he hold a valid entry document by filing an Application for Waiver of Passport
and/or Visa (Form I-193) (Tr. at 11).

See

section 211(b) of the Act, 8 U.S.C. 1182(b). The

Immigration Judge ordered the respondent to file everything, i.e., the Form 1-193, a witness list,
and supporting documents, with the Immigration Court no later than June 3, 2013, and, if the
documents were not timely filed, she would consider the form to be abandoned {Tr. at 20).

Matter of R-R-,

20 I&N Dec. 547, 549 (BIA 1992). The respondent

contend s that he attempted to fax his Form 1-193 to the Immigration Court on June 3, 2013.

Attempting to file a Form I-193 by fax was improper because, aside from the Notice of Entry of
Appearance as Attorney or Representative before the Immigration Court (Form EOIR-28), "[a]ll
,
other filings must be submitted as paper submissions to the Immigration Court.' 4 Immigration

Court Practice Manual, 3.l(a)(viii) at 34 (June 10, 2013), http://www.justice.gov/eoir/vll/

OCIJPracManual/Practice_Manual_review.pdf.

Accordingly,

as

the

respondent

has

not

established that he timely complied and properly complied with the Immigration Judge's filing
deadline, the Immigration Judge properly deemed his opportunity to file a Form I-193 to be
abandoned and ordered his removal from the United States to Anguilla.
Finally, the respondent has presented numerous documents on appeal. However, the Board

does not consider evidence first provided on appeal. See 8 C.F.R. 1003.l(d)(3)(iv); Matter of
Fedorenko, 19 l&N Dec. 57, 74 (BIA 1984) ("The Board is an appellate body whose function is
to review, not to create, a record."). Additionally, we decline to remand these proceedings to the
Immigration Judge to consider the evidence in the first instance as such evidence has not been
shown to affect the outcome of this case. See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
Even though the respondent has attached several letters of support to his appeal brief, as
discussed above, he is inadmissible under the provisions of section 212(a)(7)(A)(i)(I) of the Act
and has abandoned his opportunity to file a Form I-193.
For the reasons set forth above, the following order is entered.
ORDER:

The respondent's appeal is dismiss

The respondent does not argue that his attorney provided him with ineffective assistance of
counsel by attempting to file his Form 1-193 by fax. See Matter of Lozada, 19 I&N Dec. 637
(BIA 1988).

Cite as: Nicholas Jermaine Gumbs, A040 159 442 (BIA Jan. 13, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

8 C.F.R. 1003.3l {a), (c);

See

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
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IMMIGRATION COURT

#7

TABONUCO STREET, ROOM 401

GUAYNABO,

PR

00968

AMOS W. CARTY, ESQ.

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5212 WIMMELSKAFTS GADEW

ST.

THOMAS,

VI

00802
DATE:

FILE A.040-159-442

IN THE MATTER OF

Jun 11, 2013

GUMBS, NICHOLAS JERMAINE

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

S FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS,
MUST BE MAILED TO:

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
P.O.

BOX 8530

FALLS CHURCH,

VA

22041

. ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT,

8 U.S.C.

SECTION 1252B(c} (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6),

8 U.S.C.

SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS.

TO REOPEN,

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT:

(_

ON COURT

#7

TABONUCO STREET, ROOM 40

ABO,

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00968

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OTHER:

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IMMIGRATIO

CC:

COURT

VIVIAN REYES,DISTRICT COUNSEL/DRS/BICE LITIGATION

#7

TABONUCO ST.

GUAYNABO,

PR,

ROOM 313

009680000

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Immigrant & Refugee Appellate Center | www.irac.net

LAW OFFICE OF PEDRO K. WILLIAMS

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U. S.

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DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT
GUAYNABO,

IN THE MATTER:
GUMBS,

PR

FILE:

A 040-159-442

NICHOLAS JERMAINE

ON BEHALF OF RESPONDENT:
AMOS W.

CARTY,ESQ

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

VIVIAN REYES,DISTRICT COUNSEL/DHS/BICE LITIGATION
ORDER
On JUNE 3,

2013, pursuant to proper notice,

the above

entitled matter was set on the Court's docket for the purpose of
receiving I-193 application for relief from removal on
behalf of Respondent.
The Court takes notice upon review of the Record of Proceedings
that said application has not been filed in a timely manner,

thus

the Court finds Respondent has abandoned any and all claims for
relief from removal.
Wherefore,
resolved,

the issue of

inadmissibility having been previously

it is hereby Ordered that Respondent be removed from the

United States to ANGUILLA.

DATE:

CC:

tp/ /O )i

T/A
Alien's Representative

$Q

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

RESPONDENT

'-

UNITED STATES DEPARTMENT OF JUSTICE

Immigration Court
San Patricio 0/flce Building #7 Tabonuco SL Room #401
Guaynabo, PR 00968-4605

DOCKET: ST. THOMAS, US VIRGIN ISLANDS

IN THE MATTER OF:

CASE NO. A 040-159-442

GUMBS, NICHOLAS JERMAINE

RESPONDENT/APPLICANT

REMOVAL

PROCEEDl!'[{VS

JQSii41M-ESQ.

DECISION ON A MOTION

ftMQ 7

VIVIAN REYES, ESQ.

ATTORNEY/ALIEN

CHIEF COUNSEL

Immigrant & Refugee Appellate Center | www.irac.net

IN

A Motion FOR CONTINUANCE has been filed in the above captioned case. The Motion has been duly
considered and it appears to the Court that:

( )

The request is timely and reasonable. Therefore, IT IS HEREBY ORDERED that the Motion be
GRANTED.

( )

The Motion has been duly considered and it appears to the Court that no substantial grounds have been

advanced to warrant that it be granted. Therefore, IT IS HEREBY ORDERED that the Motion be and
the same is hereby DENIED.

( )

thng<J

>

Immigratio
CC:

CHIEF COUNSEL
COUNSEL FOR RESPONDENT/APPLICANT
RESPONDENT/APPLICANT

Date signed:

CERTIFICATE OF SERVICE

Judge

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