U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: ELIAS, GALVAN

A 092-966-446
Date of this notice: 7/6/2016

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

DoYUtL caAA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Connor, Blair
Adkins-Blanch, Charles K.
Mann, Ana

Userteam: Docket

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Cite as: Elias Galvan, A092 966 446 (BIA July 6, 2016)

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Gonzalez, Michelle Esther

Michelle Gonzalez, Inc.
7420 Seville Avenue
Huntington Park, CA 90255

U.S. Department or'Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A092 966 446 - Los Angeles, CA

Date:

JUL - 6 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Michelle Esther Gonzalez, Esquire
APPLICATION: Application for registry under section 249 of the Act, adjustment of status
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
April 17, 2015, decision denying his application for registry pursuant to section 249 of the
Immigration and Naturalization Act, 8 U.S.C. 1259. The respondent also submits new
evidence on appeal. The Department of Homeland Security (DHS) did not file an appeal brief.
The record will be remanded for further proceedings.
The Immigration Judge pretermitted the respondent's application for registry, ruling that
the respondent did not establish his entry into the United States before January 1, 1972, his
continuous residence since entry, or that he is not inadmissible under section 212(a) of the Act, 8
U.S.C. 1182. The Immigration Judge did not accept the respondent's witness list or permit
witness testimony because the respondent did not submit declarations or summaries of witness
testimony in compliance with the Immigration Court Practice Manual. The respondent argues on
appeal that his witness list, which specified that each witness would discuss his continuous
residence, good moral character, and rehabilitation, contained sufficient information regarding
the testimony of his witnesses. He further argues, among other things, that the Immigration
Judge violated his due process rights by not allowing him to present witness testimony in support
of his application.
We conclude that the Immigration Judge should have permitted the presentation of
witness testimony in support of the application for registry under section 249 of the Act. The
respondent was in substantial compliance with the Immigration Court Practice Manual when he
presented a witness list that outlined specific areas of witness testimony. Among other evidence,
the respondent also presented a letter from one of the witnesses that further expanded on the
scope of her potential testimony. Thus, while we make no determination as to the merits, we
find that a remand for the presentation of witness testimony in support of the application is
appropriate in this case. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994) (due process for
an immigrant in deportation proceedings includes the right to a full and fair hearing).
On remand, the Immigration Judge also should consider the new evidence presented on
appeal and provide the respondent with an additional opportunity to submit further evidence in
support of the application. Further, the Immigration Judge should also consider whether the
Cite as: Elias Galvan, A092 966 446 (BIA July 6, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: ELIAS GALVAN a.k.a. David M. Dominguez a.k.a. David Matthew Dominguez a.k.a.
David Dominguez a.k.a. Elias Leo Galvan a.k.a. Galvan Elias a.k.a. Leo Galvan a.k.a.
David Mathew Dominguez

A092 966 446

respondent is inadmissible under section 212(a) of the Act in light of Castillo-Cruz v. Holder,
581 F.3d 1154, 1161 (9th Cir. 2009) (holding that a conviction for receipt of stolen property
under California Penal Code 496 "is not categorically a crime involving moral turpitude
because it does not require an intent to permanently deprive the owner of property").

ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion.

FOR THE BOARD

2
Cite as: Elias Galvan, A092 966 446 (BIA July 6, 2016)

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Accordingly, the record will be remanded for further proceedings.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

April 17, 2015

In the Matter of
)
)
)
)

ELIAS GALVAN
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Present without being admitted or paroled.

APPLICATION:

Registry.

ON BEHALF OF RESPONDENT: ROBERT DE LA MADRID

ON BEHALF OF OHS: LEE P. CRYSTAL

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Mexico who entered the United
States without presenting himself for admission by an Immigration officer. He was
placed in removal proceedings by issuance of a Notice to Appear dated July 11, 2013.
He was charged with being removable from the United States because he is present
without being admitted or paroled.
The respondent admitted the allegations of fact and conceded the charge of
removability. He declined to designate a country of removal and the Court directs

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File: A092-966-446

Mexico as the country of removal should that become necessary. Based upon the
respondent's admission, See Exhibit 2, I do find that he is removable by evidence which

The respondent, in lieu of removal and deportation, filed an application for

registry under 249 of the Act. That application and supporting documents are in the
record as Exhibit 4. He also submitted additional supporting documents which are in
the record as Exhibit 5. And then for identification purposes as Exhibit 6 is a witness list
that was filed on April 2, 2015.
The respondent did not submit any declarations from any of the witnesses on the
list. He did submit a letter from his sister, Yolanda Galvan. The Court did not accept
the witness list as an exhibit because it did not comply with the Practice Manual, which
requires a summary of the testimony. The only thing that the respondent indicates in
his witness list is that they would testify about his physical presence, good moral
character and rehabilitation. That is not a summary. It is merely topics they plan to
address. Furthermore, the application for registry requires documentary evidence and
sometimes the Court may accept affidavits. So the respondent was on notice that he
should have presented written affidavits from these witnesses if he wanted to have them
considered.
The one documentary letter that he did submit was from his sister Yolanda
Galvan. This letter dated January 7, 2014, is on page 34 of Exhibit 4. This letter states
that the family came here in 1966 and that the family would frequently visit Mexico for
vacation and to visit relatives. And that her brother, the respondent, was born in Mexico
on December 23. 1971. And that the parents did submit some paperwork for her
brother, but it never materialized. The only evidence of paperwork that was submitted
to this Court was a legalization application that was denied, apparently for lack of
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April 17, 2015

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is clear and convincing.

evidence of residency. That is also in the record, submitted by the respondent with his
application. The sister's letter indicates that the parents have both passed away. The

does not give a date. And that she does not have any access to the paperwork that the
father had because he remarried and they do not have a good relationship with his
second wife. And that they do not have documents to prove that he was continuously in
the United States since shortly after he was born. That the documentation would have
included vaccination records and medical records, as well as photographs. And her
letter indicates further that she was 11 years old when her brother was born and she
can attest to the fact that he has always lived with them in the United States.
The Court finds that the respondent is unable to establish eligibility for registry.
Section 249 of the Act requires that the respondent establish that he entered the United
States prior to January 1, 1972; that he has had his residence in the United States
continuously since such entry; is a person of good moral character; and is not ineligible
to citizenship; and is not deportable under 237(a)(4)(8). In addition, the respondent
must satisfy the Attorney General that he is not inadmissible under Section 212(a)
insofar as it relates to criminals.
In this case, the Court finds that the respondent's application is pretermitted and
denied because he has failed to establish continuous residence in the United States.
He has failed to establish that he entered the United States prior to January 1, 1972,
and that he has continuously resided here since such entry. And he has failed to
establish that he is not inadmissible under Section 212(a)(2), crime involving moral
turpitude.
In this case, turning first to the issue of entry, the respondent submitted a copy of
his birth certificate which shows that he was born December 23, 1971. That means that

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April 17, 2015

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mother passed away in October of 1982. The father passed away also, although she

he would have had to have entered the United States within a few days of being born or
a week of being born in order to qualify for registry. The respondent has presented no

that he entered prior to January 1, 1972. She says that the family immigrated to the
United States in 1966 and that the respondent has always lived with them in the United
States except the respondent was born in Mexico in 1971. She does not indicate when
he crossed the border, how old he was when he crossed the border and her letter is
insufficient to establish that he entered before January 1, 1972. She indicates in her
letter that they do not have access to documentary evidence to prove it and
unfortunately the respondent has the burden of proof. Her letter also does not provide a
lot of details. We do not know the exact date that he entered the United States, where
she was when he was born, when he crossed the border, how she knows or can recall
what date it was that he crossed the border. Her letter has no specific information
regarding that and by itself is insufficient.
It is also insufficient in connection with all the other documents the respondent
submitted. Although he submitted some documentation of being in the United States,
he has not presented evidence to establish that he has continuously resided in the
United States since January 1, 1972. He has presented some evidence of some school
records, but it does not cover of all the years or even all of his school years. There are
no graduation certificates. There is no work records. There are no medical records.
There would have had to have been some kind of immunization record. He has
presented nothing. The respondent's documentary evidence is severely lacking and he
has the burden to prove his eligibility.
The regulations at 8 C.F.R. 1249.2 indicates that the application must be made
on a Form 1-485 and accompanied by a Form G-325A. The respondent did not submit a

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evidence of entry prior to January 1, 1972. His sister's letter is insufficient to establish

G-325A. He did submit the 1-485. The application shall also be accompanied by
documentary evidence establishing continuous residence in the United States since

Documentary evidence may include any records of official or personal transactions or

recording of events occurring during the period of claimed residence. Affidavits of
credible witnesses may also be accepted.
The respondent unfortunately has not met his burden of proof by submitting
sufficient documentary evidence to prove continuous physical residence since before
January 1, 1972, nor has he presented sufficient documentary evidence to prove that he
entered prior to January 1, 1972. Accordingly, the Court is pretermitting his application
on this ground.
Secondly, the Court is pretermitting his application on the ground that the
respondent has failed to establish that he is not inadmissible under Section 212(a)(2) of
the Act, specifically crime involving moral turpitude.
The respondent has been convicted of several offenses in the United States.
One of those convictions was in 1992. See Exhibit 5. On page 42 of Exhibit 5 the
respondent submits documentation showing that he was convicted of receiving stolen
property, for which he received a three-year sentence. The copy is not very good, but
the respondent indicated that he believed that it was a suspended sentence and that he
did not go to prison, but that he did spend some time in jail while the case was being
considered. He believes about three or four months is what he spent in jail for the
receiving stolen property conviction. The respondent subsequently had the conviction
expunged, but the expungement does not erase the conviction for Immigration
purposes. So the respondent remains inadmissible for having been convicted of a
crime involving moral turpitude, that is receiving stolen property. The respondent has

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prior to January 1, 1972. All documents must be submitted in accordance with 103.2(b).

not submitted any waiver application and the Court finds that he has not established his
eligibility for registry under 249 and his application for registry is, therefore, pretermitted

The respondent's case was scheduled for today's hearing on August 26, 2014.
The Court finds that respondent has had ample opportunity to prepare his case and has
failed to submit sufficient evidence of his eligibility. Accordingly, the Court is
pretermitting and denying his application on the basis that he has failed to establish
statutory eligibility for the relief he seeks.
The only other relief pending before the Court is voluntary departure in the
alternative. This is a minimal form of relief. The Government indicates they would not
appeal a grant of voluntary departure. It is a discretionary application. The respondent
has established statutory eligibility. And while there are adverse factors present in his
case, there are also positive factors in his case and on balance, the Court will grant the
minimal form of relief of voluntary departure.
ORDER
IT IS ORDERED that respondent's application for registry be denied.
IT IS FURTHER ORDERED that the respondent's application for voluntary
departure be granted.
The respondent is to depart the United States voluntarily and at his own expense
on or before June 16, 2015. If the respondent remains in the United States after June
16, 2015, without permission of the Department of Homeland Security, then the Court's
order will automatically convert to an order of removal and deportation to Mexico.
The respondent must pay a $500 voluntary departure bond with the Department
of Homeland Security Immigration and Customs Enforcement Field Office Director
within five business days of today's date.
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and denied.

If the respondent appeals this decision, he must provide the Board of Immigration
Appeals within 30 days of filing an appeal sufficient proof that he has posted the

its final order if the respondent does not submit timely proof to the Board that he has
paid the voluntary departure bond.
If the respondent does not appeal but instead files a motion to reopen or
reconsider during the voluntary departure period, the period allowed for voluntary
departure will not be stayed, tolled or extended, the grant of voluntary departure will be
terminated automatically, the alternate order of removal will take effect immediately and
the penalties for failure to depart will not apply.
There is a civil monetary penalty if respondent fails to depart within the voluntary
departure period in the presumptive amount of $3,000.

ROSE PETERS
Immigration Judge

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voluntary departure bond. The Board will not reinstate the voluntary departure period in