Case: 18-11620 Date Filed: 11/07/2019 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-11620 ________________________ Agency No. A095-915-511 OLIVIA TOMAY-HART, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (November 7, 2019) Before MARTIN, ROSENBAUM, and BOGGS,∗ Circuit Judges. BOGGS, Circuit Judge: ∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 18-11620 Date Filed: 11/07/2019 Page: 2 of 10 This marriage-based immigration case arises from a visa petition for an immediate relative (I-130 petition) filed in 2001 by a United States citizen, Nigel Hart, on behalf of his non-citizen wife, Olivia Tomay-Hart, and her corresponding application for adjustment of status (AOS) to become a lawful permanent resident (I-485 application). During the couple’s interview with United States Citizenship and Immigration Services (“USCIS”), questions arose regarding the paternity of the couple’s second child, Hersof. DNA testing was ordered and revealed that Mr. Hart was not Hersof’s biological father. In 2009, the USCIS denied Tomay-Hart’s AOS application based on the paternity issue. In 2014, Tomay-Hart was placed in removal proceedings before an immigration judge, who denied Tomay-Hart’s motions for cancellation of removal and voluntary departure and issued an order of removal. Tomay-Hart appealed to the Board of Immigration Appeals (BIA), moving for a remand for consideration of new evidence, which was that she was now eligible for AOS based on a new I-130 petition filed by her now-adult son, Exodo, who is a United States citizen. The BIA dismissed Tomay-Hart’s appeal and denied her motion to remand to the IJ. Tomay-Hart filed this petition for review, challenging the BIA’s dismissal of her claim. I. FACTS AND PROCEDURAL HISOTRY Petitioner, Olivia Tomay-Hart, a 53-year-old Mexican national, entered the United States without admission or parole in March 1993. Since entering, she has 2 Case: 18-11620 Date Filed: 11/07/2019 Page: 3 of 10 never departed the United States. She has no criminal record. On April 30, 2001, Tomay-Hart married a United States citizen, Nigel Hart, in Atlanta, Georgia. That same day, Hart filed an I-130 visa petition for an immediate relative on her behalf, and Tomay-Hart filed an I-485 Application for Lawful Permanent Residency, also known as an application for AOS. 1 Tomay-Hart and her husband claimed two United States citizen children, Exodo and Hersof. During USCIS interviews when Hersof was 2 or 3 years old, his paternity came into question. USCIS ordered DNA testing and it was discovered that Hart was not Hersof’s biological father. In September 2009, USCIS denied Tomay-Hart’s I-485 adjustment of status application over concerns as to the bona fides of the marriage, based largely on Hersof’s paternity. In January 2010, DHS sent Tomay-Hart a Notice to Appear (NTA) for removal proceedings in immigration court for being an alien present in the United States without admission or parole, pursuant to INA § 212(a)(6)(A)(i)(I), 8 U.S.C. § 1182(a)(6)(A)(i)(I). Tomay-Hart moved for cancellation ...
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