Check out Mohamed Bary's missing immigration documents. Mr. Bary lost his application for amnesty. He lost his appeal for reconsideration of the administrative law judge's denial of that amnesty application, (or, application for change of status to temporary resident legal alien, to be more precise.) Mohamed Bary made contradictory allegations as to his residency, and he obviously committed perjury.
He and his family are subject to immediate deportation and further exclusion. He claimed he came to America to tend to Rifqa's eye, when in fact he came illegally through Mexico (according to the document), and the "doting" father never got Rifqa medical treatment.
For several months the attorneys for Rifqa Bary's parents have been promising to produce their immigration documents. And yet they still have failed to produce them. First, Craig McCarthy (since discharged) and then the new, improved, CAIR-approved Shayan "Shaytan" Elahi repeatedly promised to produce them here and here and here and here. The Barys have ten days before they are in contempt of court. My money says they are going to say the documents are lost.
Perhaps the Barys have not provided the documents because they are here illegally, as these Department of Homeland Security documents show.
Yesterday Judge Daniel Dawson laid down the law and said in no uncertain terms that Rifqa would not be returned to Ohio until the immigration docs were produced.
Shayan "Shaytan" Elahi claimed yesterday that there were no docs to submit. The judge said they got into this country, he wants that paperwork. Apparently only two pages of Aysha's passport were submitted.
Judge Dawson insisted, "the court would feel lot better if these documents were here, before it gives up jurisdiction." And Rifqa's GAL Krista Bartholomew said that Rifqa Bary runs the risk of deportation if she takes public transportation anywhere in this country.
Elahi got very nasty with the judge when he insisted on getting the immigration paperwork. "You and your client didn't supply it. I want it before this child leaves Florida," said Dawson.
Elahi accused Rifqa's attorney, John Stemberger, of "religious predatory practices" and accused Stemberger of wanting to kidnap her, "squirrel her away".
Bottom line, Dawson said it is the parents' fault for not getting the immigration documentation. He doesn't plan to release her until he sees it.
Bary has been in the United States illegally since the date of his entry, and until now. He is an illegal alien, subject to deportation and further exclusion. Simple as that.
Please note: [in several of the places on the appeal, the "Bary" name was not successfully redacted or blacked out, generally referring to the Bary business entity. It is quite clear, however, based on this order, that Mr. Bary entered the U.S. illegally through Mexico, and that his status is that of illegal alien, presumably this status applying to his wife and family. Rifqa is an illegal alien, as well. She needs, in my estimation, to apply for asylum, or she faces deportation.]
Also, if you look at the appeal closely, you will see that the administrative courts repeatedly asked Bary for supporting documentation, such as tax records. They were not provided.
This document is rejection of Bary's appeal for status as a temporary resident. . . Sept 2, 2008. . .7 pages. .
. Order: the appeal is dismissed. This decision constitutes a final notice of
ineligibility. APPLICATION: Application for Status as a Temporary Resident pursuant to Section 245A of the
Immigration and Nationality Act, as amended, 8 U.S.C. $ 1255a
ON BEHALF OF APPLICANT:
This is a petition for non immigrant worker, original application. . .July 26, 2005. . . 6 pages. . .Order: the appeal is dismissed.
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3042
Washington, DC 20529
U. S. Citizenship
FILE: EAC 02 247 54828
Office: VERMONT SERVICE CENTER
Date: c.$!&~ 2 6 & e ) ~
IN RE: PETITION: Petition for a Nonimmigrant Worker
Pursuant to Section 10 1 (a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) ON BEHALF OF PETITIONER:
* ' Robert P. Wiemann,
Director Administrative Appeals Office
EAC 02 247 54828 Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
According to the evidence contained in the record, the petitioner was established in 2000 and claims to be a gem and jewel import and marketing firm. It claims to be a branch office of Bary & Company, located in Lanka.
The petitioner claims one employee and gross annual income in the amount of $237,561.00. It seeks to extend its authorization to employ the beneficiary temporarily in the United States as its managing partner at a weekly salary of $800.00.
The director determined that the petitioner failed to submit sufficient evidence to establish that the beneficiary has been or will be employed primarily in an executive or managerial capacity. On appeal, counsel disagrees with the director's determination and asserts that the evidence establishes that the beneficiary's duties have been and will continue to be primarily executive or managerial in nature.
To establish L-1 eligibility under section lOl(a)(lS)(L) .of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the beneficiary's application for admission into the United States, has been employed abroad in a qualifying managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render his or her services to the same employer, or a subsidiary, or affiliate thereof, in a capacity that is managerial, executive, or involves specialized knowledge (C), provides:
The petitioner initially described the beneficiary's duties in the petition as:
"Look[s] for wholesale and retail
stone and gem merchants in the United States and boost [sic] the sales operation of gems and stones."
In response to the director's request for additional evidence on the issue, counsel described the beneficiary's duties as: The beneficiary gets shipment [sic] from Sri Lanka. He orders and supervises the manufacturing of some custom made gems and jewels material and markets the gems and jewels commodities in different shows and business exposition [sic] in the United States.
The director denied the petition after determining that the evidence was insufficient to establish that the beneficiary had been or would be employed primarily in a managerial or executive capacity. The director noted that, although specifically requested, the petitioner failed to submit a complete position description for all employees in the United States; a breakdown of the number of hours devoted to each of the employees' job duties; and financial evidence relating to the number of persons employed by the U.S. entity.
The director further stated that it appeared from the record that the beneficiary alone was primarily engaged in providing sales services to the company's clients at various trade shows and out of his home, rather than directing the management of the organization. The director concluded that the beneficiary had been and would be performing the day-to-day duties of the organization and that any managerial or executive duties were only incidental to such tasks.
On appeal, counsel disagrees with the director's decision and asserts that sufficient evidence has been submitted to establish that the beneficiary has been and will continue to be employed primarily in a managerial or executive capacity.
Counsel asserts that the beneficiary manages and supervises the U.S. entity and exercises discretion over the day-to-day operations of the organization. Counsel also asserts that the beneficiary, from time to time, during various trade shows and exhibitions, hires and supervises independent contractors.
Counsel refers to an unpublished AAO decision in support of his claim on appeal. On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been or will be employed in a managerial or executive capacity.
furnished no evidence to establish that the facts of the instant petition are analogous to those in the
unpublished case. The petitioner has failed to submit evidence to substantiate its claim that the U.S. entity
hires and supervises independent contractors for various trade shows and exhibitions. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).
Furthermore, while 8 C.F.R. 5 103.3
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the beneficiary's duties include managing the import, marketing, sales, and manufacturing of gems and jewels. The petitioner did not, however, define how the beneficiary manages the functions of the organization or how he supervises employees. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, supra. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
In addition, the petitioner describes the beneficiary as manufacturing, marketing, and selling the gems and jewels. Since the beneficiary actually manufactures, markets, and sells the gems and jewels he is performing a task necessary to provide a service.
An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). In the request for evidence, the director requested that the petitioner submit a U.S. business organizational chart; a complete position description for all employees in the United States; a breakdown of the number of hours devoted to each of the employees' job duties; and financial evidence including IRS Form 941 and payroll summaries relating to the number of persons employed by the U.S. entity. The petitioner failed to submit these documents in response, stating that the beneficiary was the only employee who, from time to time, hired and supervised independent contractors. Contrary to the petitioner's belief, this evidence is critical as it would have established whether the beneficiary has been and would be performing primarily in a managerial or executive capacity. The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. $ 103.2
(b)(8). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. $ 103.2(b)(14). The evidence and explanations submitted by the petitioner are insufficient to establish that the beneficiary has been or will be employed primarily in a managerial or executive capacity. It appears from the record that the beneficiary has been performing and will continue to perform the day-to-day EAC 02 247 54828 Page 6
services of the U.S. entity, rather than manage or supervise the business operation as a whole, a function within the organization, or personnel staff. Accordingly, the appeal will be dismissed. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S..C. 9 1361. The petitioner has not sustained that burden. ORDER: The appeal is dismissed.
Here's an excerpt from my interview with a woman, an apostate, who
came to the hearing just to show moral support. She does not know
Rifqa, but is an ex-Muslim from Sri Lanka. This is the audio.
I am sitting here with a family - their names will not be disclosed. Their background is Sri Lanka much the way Rifqa Bary's background is Sri Lanka - the Mum is an apostate. She is a convert from Islam.
Can you tell us a bit about the danger that Rifqa faces?
Sri Lankan Apostate: Yes, she will have real problems. Even if she has to go to the family, Mother and Father. Because it is in their faith, it is written this has to happen when you go away from the Islam, then Kill.
As Prophet Mohammad has told as in the Hadiths and also in the Koran. This is what I learnt also when I was a muslim. That you should kill all the Jews first and then the Christians then other nations if you are not believing in Allah.
So, this was taught when I was a small child. This is like being brainwashed.
People they don't know what is in the Koran, they don't want to know even
because it is simply holy. You are not allowed to see what is inside, and even
if you see that, it is in Arabic language, and translation they are not
interested. They believe that. They say Koran nobody can translate, so what can
we believe? Somehow I got to know the reality. In the Koran it is written that
there is light and guidance in the Torah and light and guidance in the Injil [Gospel].
Then, it is in the Old Testament and New Testament and even though we are not allowed to read these or see these people who have this book, Islam teaches us always don't breed with those Kuffars, with unbelievers who are not in Islam, and that they have changed their own books and the Christians and the Jews, they are not like those days that books which God gave and so today Allah gave for us, that is why we are going on like Allah wants, so this is not the real way. When Allah says in the Koran that Torah has lied, Indian has lied, then why don't I see this.
Pamela: So let me ask you a question. You come from Sri Lanka? If she goes back to Sri Lanka with her family becomes they have problems with their legal status - what will it be like for a muslim in Sri Lanka, someone like Rifqa who has converted? Are they a secular society are they understanding of such a conversion?
Sri Lankan Apostate: No. She will die, she will die in her society. Society won't leave her alone. Even if the family, Mother and Father has a little sympathy, but not society, society is worse because she has gone too far.
Pamela: You mean more pressure from society, more judgement comes down upon the family?
Sri Lankan Apostate: Yes. The society will never leave the family in peace. They have to take a stand for this, because it is the shame. Rifqa has brought a shame for their religion and for their society.
Pamela: So your whole family is here? You are not related to Rifqa?
Sri Lankan Apostate: No.
Pamela: Why did you come to this hearing with your family?
Sri Lankan Apostate: Because when I see the youtube everytime, it is like my situation
Pamela: When you heard Rifqa on youtube, that was on my site, you saw yourself in her?
Sri Lankan Apostate: Yeah, I had really sympathy on her, this is my same situation that is going on with her, eh, that danger in life.
The interview with the apostate woman was especially good, and points to a way
in which the legal standards of the asylum application based on religious
persecutions involving individuals might be met. it says that governmental
action or policy must be shown. if a societal wide attitude as this lady
describes could be established, and the government knew about it, did nothing,
or even encouraged it, then the government might be shown sufficiently
complicitous to meet the statutory standard of conduct.
John Jay, formerly a prosecutor in juvenile court in Washington suggests, "a similar standard applies in our civil rights law, and has for years, called "governmental action." as an example, social clubs, like the elks, who were sufficiently linked to governmental action could be prohibited from discriminating.
the legal and intellectual "template" is already there. the argument could be extended in the context of asylum, and the statutory elements to be proved to establish a case. rifqa's case would be a good test vehicle.
plus, there is the issue of time.
it would take time to resolve.
and, finally, there is the issue of her legal status. a person seeking asylum may do so from inside the u.s., and does not have to leave and petition for re-entry. that is the advantage".
Atlas readers : CONTACT CRIST
Governor Charlie Crist's office: Phone: (850) 488-4441,
Fax: (850) 487-0801
UPDATE: More from John Jay:
This is the final decision of an administrative appeals office of the united
states citizenship and immigration services, Dept. of Homeland Security. The
appeal was taken from an adverse ruling of an administrative judge upon the
applicant's request for adjustment from illegal alien with unlawful entry
to that of a temporary (permanent) resident in the united states under 8
u.s.c. sec. 1255a(1)(2)(a.). This would be more familiarly known as an
Under this statute, the applicant for changed status has to allege and prove by a preponderance of the evidence that he illegally entered the united states before january 1, 1982 and that he has resided continually in the United States since or before that date continuously as an illegal resident alien.
The administrative judge who initially heard applications request for an adjustment to a temporary resident in the united states found that the applicant did not demonstrate by a preponderance of the evidence, e.g., more likely than not, by material, relevant and probative & convincing evidence that:
1.)he had demonstrated entry
into the United States illegally on or before that date, and nor 2.)that he
demonstrated a continuous residence within the United States since that date
through any and all applicable dates thereafter to the date of his filing an
application for adjusted status.
The appeals tribunal of the United States citizenship and immigration services upheld the administrative judge's decision, by this decision issued on September 2, 2008, specially ordering that applicant was not eligible to reopen or further argue his case at that administrative level. further appeal, if taken, would likely have lain in the United States federal district courts, under applicable administrative law rules: his remedies within the bureaucracy "exhausted." specifically, they noted that while certain affidavits were filed in support of the application for adjusted status, they were grossly deficient in alleging that the affiants knew anything of the applicants entry into the united states or when or where it occurred, and were also grossly deficient in alleging any personal knowledge of applicant's residency status in the united states during the applicable period. the appellate decision also noted that the applicant was directed to submit tax and earnings records to the tribunal, as might have substantiated his allegations of continuous business activities while in the united states, but that he did not do so. and, the appellate court also noted that certain evidence submitted by the applicant (receipts for the sale of colored jewels) indicated that he was doing business in the united states after the date of January 1, 1982 under letter head from Sri Lanka with his name on the company name, and absolutely no indication upon the receipts to explain or establish that the company was doing business in the united states under his name or legal establishment.
The appellate order denied his application for an adjustment to that of temporary resident alien.
This would have left his legal status as of the date of his application for an adjustment under 8 u.s.c. sec. 1255a just as on the date of application, as that of a illegal alien. this is just as the applicant would have alleged upon the face of his request for an adjustment: the statute was available as relief only to person who had entered and stayed in the united states as illegal aliens.
the applicant has been in the united states illegally since the date of his entry, and, until now. he is an illegal alien, subject to deportation and further exclusion. simple as that.
Please note: [in several of the places on the appeal, the "bary" name was not successfully redacted or blacked out, generally referring to the bary business entity. it is quite clear, however, based on this order, that Mr. Bary entered the U.S. illegally through Mexico and that his status is that of illegal alien, presumably this status applying to his wife and family. rifqa is an illegal alien, as well. she needs, in my estimation, to apply for asylum, or she faces deportation.]
UPDATE: Check out this site Sri Lanka Christians. It gives info about the religious situation for Christians in Sri Lanka: (hat tip Judith)
Copyright Pamela Geller, All rights reserved. Credit and link.