Lujan, Melissa R., Esq.

Michael Brooks-Jimenez, P.C.

5708 S. Western Avenue
Oklahoma City, OK 73109
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS
/
ICE Ofice of Chief Counsel - OKC
4400 SW 44th Street, Suite A
Oklahoma City, OK 73119-2800
Name: HERNANDEZ-HERNANDEZ, ELE ... A 07 4-571-777
Date of this notice: 3
/
31
/
2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Guendelsberger, John
Grant, Edward R.
Hofman, Sharon
Sincerely,
Do c O
Donna Carr
Chief Clerk
yungc
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
U.S. Dcpartmcntof Juscc
Executve Ofce fr I graton Review
Decision of te Boad of Im gration Appeals
Falls Chuch Viginia 20530
File: A074 571 777 - Dallas, TX
I re: ELENA HERNANDEZ-HERNANDEZ
I REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONENT: Melissa R. Luja, Esquire
ON BEHALF OF DHS: Michelle Alen-McCoy
Assistat Chief Counsel
APPLICATION: Adjustent of status
MAR 31 /I+
The respondent, a native ad citizen of Mexico, has fled a appeal fom the I gation
Judge's decision dated February 23, 2012, denyng her application fr adjustment of stats under
section 245(i) of the Immigation ad Nationality Act, 8 U.S.C. 1255(i), in the exercise of
discretion. We will remad the case to the Immigation Judge fr fhe proceedings.
The respondent agues on appeal that the Immigation Judge's discretiona denial of her
application to adjust status was eroneous and a abuse of discretion ad should be reversed.
Specifcally, the respondent argues that the Immigation Judge ered in (1) denying her
application pusuat to Matter of Almanza, 24 I&N Dec. 771 (IA 2009), on te basis of her
purorted filure to comply with the Court's instuctions, ad in (2) not weighing her positive
equities present in her case aganst her negative fctors, as set frth in Matter of Arai, 13 I&N
Dec. 494 (BIA 1970). See Respondent's Appea Brief at 4-7.
The respondent asserts that the fcts in her case difer fom tose in Matter of Almanza,
supra, in that, in that case, the alien did not submit the documentation that was specifcally
requested of m ad gave no reason fr faling to do so. Here, the respondent agues that she
did tae substantial steps to comply wit the specifc instctions the Imigation Judge gave her
on November 19, 2010, icluding hiring a ta prepaer on December 21, 2010, to prepae her
income tax retus, obtainng a tax I number, paying a porion of a bill she received fom te
Interal Revenue Service (I) in Febrary 2010, ad bringng to court documents evidencing
the actions she took to comply with the Immigation Judge's instrctions. The respondent
maintans that the Imigation Judge's refsal to accept the docwents she brought to cou on
April 21, 2011 {Tr. at 53), ad consider her reasons fr not having flly complied with te
instuctions he gave her was not reasonable. The respondent fther agues that the Imigation
Judge did not weigh her key negative fctor of not having fled taes in the United States against
her may positive equities, whch include her 20-plus yeas living in the Unted States with a
similaly long history of stable employent, her having two United States citizen childen, ad
her lack of a crinal histor. According to te respondent, had te Im gation Judge weiged
all the positive ad negative fctors in her case, he would have fund that te positive fctors
prevailed in her fvor. Id.
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
t J
A074 571 777
We agee with the Igation Judge tat the respondent did not show fll compliace with
his instctions despite the fve-month continuace he gated her on November 19, 2010.
Specifcally, the respondent did not bring to court on April 21, 2011, evidence tat she had eiter
paid all her delinquent taes or established a payment pla with the IS ad complete te frst
to payments. Nor did she bring evidence tat she fled her 2005 income ta ret (I.J. at 8-13;
Tr. at 44-47, 50-53). However, we agee wit te respondent tat the fcts in her case difer
somewhat fom tose in Mater of Almanza, supra, so tat it would have been reasonable fr te
Imigation Judge to at least accept the evidence she brougt to cou on April 21, 2011, ad
proceed with the adjudication of her application fr adjustent of status. We also agee with te
respondent tat the Immigation Judge's decision should have included a aalysis of te
positive ad negative equities in the respondent's case. Matter of Arai, 13 I&N Dec. 494 (BIA
1970). As such, we will remad the case fr the Immigation Judge to give both paies aoter
opportunity to submit additional evidence pertinent to the issue of the respondent's eligibility fr
adjustent of status as a mater of discretion ad tereafer issue a new decision tat includes a
aalysis of te positive ad negative equities in te respondent's case. However, we express no
opinon regading the ultimate outcome of these removal proceedings at the present tme. See
Matter of L-0-G-, 21 I&N Dec. 413 (BI 1996). Accordingly, te fllowing order shall be
entered.
ORDER: The case is remaded to the
with the fregoing opinion.
igraton Judge fr fher proceedings consistent
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
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.. QITED STATES DEPATMENT OF JUSTICE
ExECUTIV OFFICE FOR IMMIGRATION REVIEW
IMIGRATION COURT
m
'ICHAEL BROOKS-JIMENEZ PC
LUJA, MELISSA R.
5708 S. WESTERN AVE.
OKHOMA CITY, OK 73109
IN THE MATTER OF
HERNADEZ-HERNAEZ, ELENA
1100 COMMERCE ST., ROOM 404
DALLAS, TX 75242
FILE A 074-571-777
UABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Feb 23, 2012
w^M

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMIGRATION APPEAS
WITHIN 30 CALENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPAING YOU APPgAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVER REQUES
MUST BE MILED TO: BOAD OF IMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHUCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE AS TE RESULT
OF YOUR FAILURE TO APPEA AT YOU SCHEDUED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c} {3) OF THE IMMIGRTION A 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. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMIGRATON' COUT
1100 COMERCE ST., ROOM 404
DALLS, TX 75242
X OTHER: WITTE DECISION OF THE IMIGRTION JGE
CC: ALLEN-MCCOY, MICHELLE
125 E. HWY 114, STE 500
IRVING, TX, 75062
K
COUT CLERK
IMIGRTION COUT

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1'
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UNITED STATES DEPARTMENT OF JSTICE
EXCUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
IN THE MATER OF: )
)
HERNANDEZHERNANDEZ,ELENA )
)
)
)
RESPONDENT )
IN REMOVAL
PROCEEDINGS
A 074-571-777
CHARGES: Section 212(a)(6)(A)(i) of the Immigation and Nationality Act
(Act), as amended, in that you are an alien present in the United
States without being admitted or paroled, who arrived in the
United States at any time or place other than as designated by the
Atorey General
APPLICATION(S): Adjustment of Stats under Section 245(i) of the Act
ON BEHALF OF THE RESPONDENT:
Melissa Lujan, Esq.
Michael Brooks-Jimenez, PC
5708 S. Wester Ave.
Oklahoma City, OK 73109
ON BEHALF OF THE
DEPARTMENT OF HOMELAND
SECURITY:
Michelle Allen-McCoy, Esq.
Assistant Chief Counsel - I CE
125 E. John Caenter Fwy., Ste. 500
Irving, TX 75062-2324
ORDER OF THE COURT
The Respondent is seeking adjustment of status fr the above-captioned case. For
the fllowing reaons, te Respondent's application fr adjustment of status will be
DENIED.
WRITTEN DECISION OF THE IMMIGRATION JUDGE
FACTUAL AND PROCEDURAL HISTORY
The Respondent is a fmale, native and citizen of Mexico. Exhibit 1. She entered
the United States at or near Eagle Pass, Texas on or about July 16, 1999. Id. She was not
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ten admitted or paroled by an Immigration Offcer. Id .
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On September 16, 2009 the Respondent was personally served with a Notice to
Appea (NTA), charging her with removability under Section 212(a)(6)(A)(i) of the
Immigration ad Nationality Act (the Act). Id.
At a heang on Febrary 2, 2010, the Respondent, though cousel, admited
fctual allegations 1-4, and conceded the charge of removability contained in the NTA.
Thus, te Court concluded that the charge of removability had been established by clear
ad convincing evidence, and tat the Respondent was removable as charged. The
Respondent desigated Mexico as the country of removal.
At a hearing on July 2 7, 2010 te Respondent, through counsel, indicated her
intention to seek adjustment of status under Section 245(i) of the Act based on her
previously approved 1-130 petition. See Exhibit 3.
On September 10, 2010 te Respondent submitted her Application to Register
Peraent Residence or Adjust Status (For 1-485). Exhibit 4.
On November 19, 2010 the Cou conducted a heaing on the merits of the
Respondent's application fr adjustent of status. During the hearing, su arized infa,
the Respondent testifed that she failed to fle income taxes during her time living and
working in the United States. Following the Respondent's testimony, the Court ofered
the Respondent a continuance so that she could rectif her filure to pay income taxes.
Specifcaly, the Cou directed the Respondent to provide proof at her next heaing that
she has fed her 2005, 2006, 2007, 2008, ad 2009 income ta rets ad that she has
either paid all of the tes owed or has signed, fled, and agreed to a payment schedule
with the Iteral Revenue Service (IRS) ad made the frst to payments. The Court
2

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also made clea to te Respondent that if she did not comply wit the Court's instructions
the Cou would deny her application fr adjustment of status as a mater of discretion.
Both the Respondent and Respondent's counsel stated that they uderstood the
instructions.
At a hearing on April 21, 2011 the Respondent appeared befre the Court, with
counsel, without having paid te taes owed or having agreed to a payment pla with the
IRS fr the yeas specifed by the Cou. 1 The Respondent also admited, though
cousel, that she failed to fle her 2005 t rets as the Court had directed. The Cou
fud that the Respondent filed to comply with the Cour's instrctions, and terefre
her application fr adjustment of status would be denied as a matter of discretion.
A. Documentar Evidence
EVDENCE
The fllowing documents ae in the record of proceedings:
Exhibit 1: Notice to Appear
Exhibit 2. Record of Deportable/Inadmissible Alien (For I"213)
Exhibit 3: 1- 130 Approval Notice (Form 1-797)
Exhibit 4: Respondent's Application fr Adjustment of Status (Form 1-485)
Exhibit 5: Supporing Documents fr Respondent's 1-485 Application
B. Testimonial Evidence
Direct Examination
The Respondent cur ently resides in Hinton, Oklahoma, and has lived tere fr
about tent yeas. She has fur children, one of whom-her furteen year old
daughter-still lives at home. Two of the Respondent s children are United States
citizens, and her other children ae curently in the United States without authorization.
Although te Respondent stated that she had fled her 2006-2009 ta retrs, she admited tat she had
not ageed to a payment plan with the IRS and had not made the frst two payments.
3
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The Respondent has been separated fom the fther of her children fr 11 years
and is not currently married. The Respondent considers herself a single mother and te
fther does not help with the children.
The Respondent currently works as a cook at a restaurant. She ha worked at te
sae restaurat fr about 15 years, and has always been paid in cash. The Respondent
has never fled an income tax retu in the United States.
Te Respondent's 30-year old son assisted her in applying fr her green cad.
Her son has lived in Hinton, Oklahoma his whole life.
The Respondent stated that she has previously had problems with her immigration
status. One day the Respondent was ma car with her two daughters and her sister on the
way to the city when they were stopped by authorities. They were then brought to the
immigration offce. When they arrived at the immigration offce they were arrsted. The
Respondent's husband at that time, who was a legal resident in the United States, arrived
at the immigration ofce and picked everyone up. Te husbad the Respondent was
referring to was the fther of thee yougest children; her oldest child has a diferent
fther.
Te Respondent ten had to go befre a immigration judge, who grated the
Respondent volutary depare. The Respondent then lef the United States and went to
Mexico with her then husband ad two daughters that were bor in Mexico. When the
Respondent arrived in Mexico she lived at her sister's house fr about two years.
The Respondent's children went to school in Mexico and did well. The
Respondent then cae back to the United States illegally because it was too expensive to
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live in Mexico. Te fther of her children helped her by giving her about $100. Wen
the Respondent came to te United Sttes the second time she lived with her sister.
The Respondent has two siblings living i the United States, both of whom have
legal documentation. Her United States citizen son is employed at an oil compay.
Cross-Examination
When asked whether the Respondent wa aware that she was required to fle taes
in the United States the Respondent stated "Yes. " The Respondent stated that if the judge
grats her petition she would pay her taes. When asked why she didn't pay her taxes in
the past, the Respondent stated that she "didn't kow" ad tat her employer only paid
her in cash. Wen asked whether she did not know that she was supposed to pay tes
even though she lived in Oklahoma fr 20 yeas, the Respondent stated "No. " When
asked when she leaed that she was supposed to pay income taxes the Respondent stated
that she did not know, but it was maybe two years ago.
When asked why she did not pay her taxes fr the last two years even though she
was aware of this obligation the Respondent stated that she did not know. When asked
why the Court should believe her, the Respondent stated that she believes she ca pay her
taxes.
When asked whether, at the time she was ganted volutary depae, she was
told that she was not supposed to enter the U. S. without lawfl status, te Respondent
stated "Yes, tey did tell me." When asked whether she had lawfl stats when she
retred to the United States the second time, the Respondent stated "No." Wen asked
why she ignored tat requirement the Respondent stated tat it is had to live in Mexico
and that everything is so expensive. When asked whether she thought the law did not
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apply to her because it was expensive in Mexico the Respondent stated "Yes. " When
asked whether she thought the fderal tax laws apply to her the Respondent stated that "I
believe so, yes."
Redirect Examiation
Te Respondent stated that she only went to school in Mexico until the third
gade ad has never had any education in the United States. Wen asked wheter she
wanted to go back to Mexico the Respondent stated that she did not, but that her husband
told her that they had to go back to Mexico. Her siblings, however, were concered
about her going back to Mexico.
The Respondent stated that she did not kow how to get a identifcation number
so tat she could fle her taxes. The Respondent stated that her daughter helped her
obtain a attorey fr tese proceedings and that her daughter and broter helped her get
her paperwork together. The Respondent stated that her oldest son helps her with the
daughter who lives at home with her. Wen aked whether her faily helps her make a
lot of her decisions te Respondent stated "Yes. "
When asked whether she was nervous in court the Respondent stated "more or
less. " The Respondent stated that she understood al of the questions being asked of her
and that she believed she was being honest to the cour.
Recross-Examination
When aked whether the Respondent was brought to the United States against her
will, the Respondent stated "No, I aso wanted to come." When asked whether she
uderstood it is her responsibility to fle income taxes ad not somebody else's te
Respondent stated "Yes. "
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:

Questions by the Immigration Judge

Wen asked whether the Respondent has ever been convicted of a crme, she
stated "No." Wen asked whether she has ever been aested aide fom being detained
by te immigation authorities the Respondent stated "No. " When asked how old her
fu children are the Respondent stated her children were 14, 24, 26, ad 30. The
Respondent stated that her 30-year old son assisted her in fling te application presently
befre the Court.
CRDIBILITY DETERINATION
Te Respondent's application fr adjustment of status wa made afer May 11,
2005, the efective date of the RAL ID Act. Terefre, her application is subject to the
credibility and corroboration standards contained at INA 240(c)(4). Under IA
240(c)(4)(C), a credibility deterination by an Immigration Judge concering an
application fr relief fom removal is based on the fllowing critera:
[c]onsidering the totalit of the circumstances, and all relevat fctors, the
immigration judge may base a credibility determination on the demeanor, cador,
or responsiveness of the applicat or witess, the inherent plausibility of the
applicant's or witness's account, te consistency between te applicant's or
wtness's written and oral statements (whenever made and whether or not under
oat, ad considering the circumstances under which the statements were made),
the interal consistency of each such statement, te consistency of such
statements with other evidence of record (including the repors of the Deparent
of State on country conditions), and any inaccuracies or flsehoods in such
statements, without regard to whether a inconsistency, inaccuracy, or flsehood
goes to the hea of the applicant's clam, or ay other relevant fctor. There is no
presumption of credibility, however, if no adverse credibilit deterination is
explicitly made, the applicant or witness shall have a rebuttable presumption of
credibility on appeal. INA 240(c)(4)(C).
Here, although the Cou has concers regarding the Respondent's falure to pay her
income taes, the Court fnds that under the totalit of te circumstances the Respondent
testifed credibly.
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LEGAL STANARS AN ANALYSIS
The Respondent in this case is seeking adjustment of stats pusuat to
Section 245(i) of the Act. INA 245(i) states i relevant par:
(1) Notwithstading the provisions of subsections (a) and (c) of this
section, an alien physically present in the United States-
(A) who-
(i) entered the United States without inspection .. .
(B) who is the benefciary (including a spouse or child of the
principal alien, if eligible to receive a visa under section 203( d) of
this title) of-
(i) a petition fr classifcation under section 204 [8 U. S. C.
1154] that was fled with te Atorey General on or
befre April 30, 2001 . ..
may apply to the Atorey General fr te adjustent of his or her status
to that of an alien lawfully admitted fr permanent residence. The
Attorey General may accept such application only if the alien remits with
such application a sum equaling $1,000 as of the date of receipt of the
application ....
(2) Upon receipt of such an application ad the sum hereby required, the
Attorey General may adjust the status of the alien to that of an alien lawflly
admitted fr peranent residence if;
(A) the alien is eligible to receive a immigrant visa and is admissible to
the United States fr permanent residence; and,
(B) a immigant visa is immediately available to the alien at the time
the application is fled.
The alien bears the burden of establishing eligibility fr adjustment of status. See
INA 240(c)(4)(a)(i).
2
If eligibility is established, adjustment of status may be granted
in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien
As noted above, the Respondent's application fr adjustent of status was made afer May 11, 2005, the
efective date of the RAL ID Act. Therefre, her application is subject to the standards contained in IA
240(
c
)(4).
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applying fr relief bears the buden of demonstrating that relief is merit

d in the exercise
of discretion. See INA 240(c)(4)(a)(ii); See also Matter of Ibrahim, 18 I&N Dec. 55
(BIA 1981); Matter of Caaos, 17 I&N Dec. 215 (BI 1980); Matter of Blas, 15 I&N
Dec. 626 (BIA 1974, A.G. 1976). The Court's discretionary decision depends on te
fcts of te paicula case and, as such, is "a matter of discretion ad of administative
grace, not mere eligibility; discretion must be exercised ... even though the stattory
prerequisites have been met." Matter of Ortiz-Priet o, I 1 I&N Dec. 317, 319 (BIA I 965);
see als o Matter of Blas, 15 l&N Dec. at 628. A fvorable exercise of adinistrative
discretion is wa ated where positive fctors, such as family ties, lengt of residency,
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and hardshp, outweigh adverse considerations. Matter of Arai, 13 l&N Dec. at 496.
However, where adverse fctors are present, it may be necessary fr the applicant to
present uusual or outstanding counterailing equities to merit a grant of an application
fr adjustment of status. Id.
Here, tere is no dispute that the Respondent ha met the basic requirements fr
eligibility fr adjustent of status under INA 245(i): The Respondent admitted that she
was not inspected or paoled by an Immigration Offcer when she entered the United
States; an I-130 petition was fled on her behalf prior to April 30, 2001; she paid the
required fe; the Respondent is eligible to receive an immigrant visa and is admissible fr
peraent residence; ad a visa is immediately available to her based on her previously
approved 1-130. See Exhibit 1; Exhibit 3; Exhibit 5, Tab C. Therefre, te minimum
requirements provided in IA 245(i) have been satisfed.
However, as noted above, the Respondent also bears the burden of establishing
that she merits a fvorable exercise of discretion. The Cour fnds, fr the fllowing
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reasons, that the Respondent has not met this burden, and therefre the Court will deny
the Respondent's application as a matter of discretion.
Here, the Court's primary discretionary concer was the Respondent's falure to
fle income taxes despite working in the United States fr almost 15 years. The
Respondent stated during testimony that she has worked in the same restaurant fr almost
15 years and admitted that she did not fle income taxes during that entire period. The
Respondent's only explanation fr her filure to fle her income taxes was that she "did
not know" that she had to. The Court fnds this explanation to be unsatisfctory.
Furhermore, the Respondent admitted during testimony that "maybe two years ago" she
did lea that she was indeed required to pay income taxes. Despite this knowledge,
however, the Respondent also filed to fle her income taxes fr the past two years.
Given the length of time the Respondent filed to fle income taxes, and tat she still
filed to fle even afer admitting she was aware that she was required to, the Cour
considered this issue to be a signifcant negative discretionary fctor.
Despite its concers, te Court wished to aford the Respondent every opporunity
to rectif this negative discretionary fctor, and thereby meet her burden of proof to show
that she merited a fvorable exercise of discretion. Thus, under Mater of Almanza
Arenas, the Cour directed the Respondent to provide proof at her next heaing that she
had fled her 2005, 2006, 2007, 2008, ad 2009 income tax rets and that she has either
paid all of the taxes owed or has signed, fled, and agreed to a payment schedule with the
Interal Revenue Service (IRS) and made the frst two payments. In Mater o/ A/manza
Arena, te Boad of Immigration Appeals (BIA) upheld an Immigration Judge's
determination that a respondent filed to meet his burden of proof when he did not
IO
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provide additional documents requested by te court ad gave no reaon fr faling to do
so. 24 I&N Dec. 771, 775-76 (BIA 2009). In that case, the BIA also noted that "by
specifing on the record the docuents that he expected the respondent to produce and
gating the respondent, who was represented by counsel, a continuace to obtain the
documents, the Immigration Judge fllowed a procedure that we fnd appropriate and
would encourage." Id. at 777, n. 4.
Here, in an efort to provide the Respondent with ample time to provide the
requested documents, the Court gave the Respondent a continuance of nearly fve
monts. The Cour also made it clea to the Respondent that if she filed to comply with
the Cour's instuctions the Court would deny 4er application fr adjustent of status as a
matter of discretion. The Court took pains to ensure that both the Respondent and her
atorey understood precisely what the Cour expected the Respondent to provide at the
next heaing. However, as noted above, the Respondent appeared at her April 21, 2011
witout having complied with the Cou's instuctions to either pay all of her delinquent
tres or agree to a payment plan with the IRS ad complete the frst two payments. 3 I
addition to filing to comply with te Cour's instuctions to agree to a payment pla, the
Respondent also admitted that she filed to fle her 2005 ta returs at all. The
Respondent provided no explaation as to why she filed to comply with the Cou's
instrctions. Tus, under Matter of Almanza-Arenas, the Court fnds that the Respondent
has faled to satisfy her buden of proof to show that her relief is merited in the exercise
Although the Respondent stated that she fed her 2006-2009 t returs, the Cour made clea to the
Respondent at her previous hearing tat this would not be enough. The Court specifcally instcted the
Respondent to appear at her April 21, 2011 heaing having either paid all of the taxes she owed between
2005 and 2009 or having ageed to a payment plan with the IRS and made the frst two payments. Thus, as
the Respondent was instcted, the simple fling of her 2006-2009 tax returs was insufcient to comply
with Matter aJ Almanza-Arenas.
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of discretion as required under INA 240(c)(4)(a)(ii). See als o Matter of Ibrahim, 18
I&N Dec. 55 (BIA 1981); Matter of Cavaz os, 17 I&N Dec. 215 (BIA 1980).
In addition to her failure to meet her burden to show that she merits a fvorable
exercise of discretion, the Court also notes that the Respondent has filed to comply wit
26 U.S.C. 6039E of the Interal Revenue Code. That provision requires that,
notwithstanding any other provision of law, any individual who applies fr lawfl
peranent residence in the United States must include with any such application a
statement that provides "infrmation with respect to wheter such individual is required
to fle a retu of the tax imposed by chapter 1
4
fr such individual's most recent 3
taxable years." 26 U.S.C. 6039E(a)-(b)(3). Tus, under the statute above, the
Respondent was required to provide a statement as to wheter she had to fle income t
rets fr the three taxable yeas preceding her application. Here, the Respondent fled
her application to register peranent residence or adjust status (I-485) on September 10,
2010. The Respondent was terefre required to provide a statement providing
infrmation with respect to whether she was required to fle income tax returs between
2008 and 2010. However, when the Respondent applied fr adjustment of status on
September 10, 2010, she only provided infrmation wit respect to her taxable income
fr 2009, meaning she was not in compliance with the statute as she did not provide
infration related to 2008 and 20 I 0. Although not dispositive, the Respondent's failure
to comply with 26 U.S.C. 6039E is a additional negative discretionary fctor, which,
given the Respondent's filure to produce the documents requested of her, she failed to
address to the Court's satisfction.
The " imposed" by chapter I includes, among oter things, the income tax owed fr maried and
uma ied individuals at various income levels. See 26 U.S.C. l(a)-(d).
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For the reasons stated above, the Court will deny the Respondent's application fr
adjustment of status as a mater of discretion.
CONCLUSION
Accordingly, the fllowing Orders will be entered:
ORDERS
IT IS HERBY ORDERD tat the Respondent's application fr adjustment of
status pusuat to Section 245(i) of the Immigration and Nationality Act be DENIED.
IT IS FURTHER ORDERED that the Respondent by REMOVED to
MEXCO on the charges contained in the Notice to Appea.
Ths d. day of Februa, 2012
13
Immigration Judge
MP :7w.F
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