U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Chavez, Nicolas OHS/ICE Office of Chief Counsel - DAL
Chavez & Valko, LLP 125 E. John Carpenter Fwy, Ste. 500
10830 N. Central Expressway Irving, TX 75062-2324
Suite 400
Dallas, TX 75231

Name: OMARI, JOHN NYAKUNDI A 028-989-663

Date of this notice: 4/28/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Kelly, Edward F.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
 ,,. '

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/ U.S. Depa rtment of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A028 989 663 - Dallas, TX Date: APR 2 8 2017

In re: JOHN NYAK.UNO! OMAR!

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Nicolas Chavez, Esquire

ON BEHALF OF OHS: Lynn G. Javier

Assistant Chief Counsel

APPLICATION: Termination of proceedings

The respondent, a native and citizen of Kenya who was previously admitted to the United
States as a lawful permanent resident, appeals the decision of the Immigration Judge, mailed
February 26, 2016, ordering his removal from the United States. The respondent's appeal, which
is opposed by the Department of Homeland Security, will be sustained. Removal proceedings
will be terminated.

We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003. l (d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R. 1003. l (d)(3)(ii).

The Immigration Judge sustained the charge of removability under section 237(a)(2)(A)(ii)
of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(ii), based upon a holding that
the respondent's federal conviction for Conspiracy to Commit Interstate Transportation of Stolen
Property and his Minnesota state conviction for Domestic Assault in the Fifth Degree constituted
convictions for crimes involving moral turpitude. While not reaching the adverse immigration
consequences of the respondent's federal conviction, we conclude that his Minnesota state
conviction does not constitute a conviction for a crime involving moral turpitude. Assuming that
the respondent's guilty plea can be effectively used to pare down the statute of conviction under
the modified categorical approach to determine which of the disjunctive elements he plead guilty
to committing, he was convicted of a violation MINN. STAT. 609.2242, subd. 1(2), as a result of
intentionally inflicting bodily harm upon against a family or household member. 1

1 As a whole, MINN. STAT. 609.2242, sub. 1, provides that "[w]hoever does any of the
following against a family or household member as defined in (MINN. STAT. section 518B.Ol ,
subd. 2], commits an assault and is guilty of a misdemeanor: (1) commits an act with intent to
cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts
to inflict bodily harm upon another."
) ' .

. .

A028 989 663

This Board has held that some convictions for domestic violence offenses, such as willful
infliction of corporal injury on spouse resulting in traumatic condition, constitute convictions for
a crime involving moral turpitude. Matter of Tran, 21 I&N Dec. 291 (BIA 1996). However, the
fact that a battery or assault crime is willfully committed upon a person whom society views as
deserving of special protection is not, in and of itself, sufficient to establish that the crime
involved moral turpitude. Matter of Sanudo, 23 I&N Dec. 968, 972-73 (BIA 2006). For

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example, we have held that a Virginia state conviction for assault and battery against a family or
household member, which does not require the actual infliction of physical injury, does not
categorically constitute a conviction for a crime involving moral turpitude. Matter of Sejas,
24 I&N Dec. 236, 236 (BIA 2007);

In the present case, the respondent's offense necessarily involved the "inflicting [of] bodily
harm" against a family or household member. However, we must consider a "minimum reading"
of the elements of the respondent's offense. See Gomez-Perez v. Lynch, 829 F.3d 323, 327
(5th Cir. 2016); Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016). "Bodily harm exists if the
victim of an assault perceives even a 'minimal amount of physical pain."' State v. Jarvis,
665 N.W.2d 518, 522 (Minn. 2003). Moreover, Minnesota Practice Jury Instructions 13.48
iterate that, in order for an assault to have been committed, it is not necessary that there have
been any physical contact with the body of the victim. Considering these circumstances, we
conclude that the elements of the respondent's offense have not been shown to necessarily
amount to a crime involving moral turpitude, i.e., a crime which is "inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed between persons or
to society in general." Matter ofDiaz-Lizarraga, 26 I. & N. Dec. 847, 849 (BIA 2016).

Finally, the Immigration Judge's interim decision in this case, dated September 27, 2011,
relied upon the respondent's plea of guilty to determine that he "hit his wife." However, since
the time of decision, the courts have made clear that a moral turpitude inquiry cannot be based
upon the "brute facts" of an alien's offense. See Mathis v. United States, 136 S. Ct. 2243, 2248,
(2016); Silva-Trevino v. Holder, 742 F.3d 197, 198 (5th Cir. 2014).

For the reasons set forth above, we conclude that the OHS has not established that the
respondent is subject to removal under the provisions of section 237(a)(2)(A)(ii) of the Act as it
has not shown that his Minnesota state conviction for Domestic Assault in the Fifth Degree
constitutes a conviction for a crime involving moral turpitude. As the Immigration Judge did not
sustain the other charges of removability, termination of these proceedings is appropriate.
Accordingly, the following order is entered.

ORDER: The respondent's appeal is sustained and these proceedings are terminated.

2
 ( __ /

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

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Chavez & Valko, LLP
Salas, Omar A.
10830 N. Central Expy
Suite 400
Dallas, TX 75231

IN THE MATTER OF FILE A 028-989-663 DATE: Feb 26, 2016

"'

OMARI, JOHN NYAKUNDI

ABLE TO FORWARD - NO ADDRESS PROVIDED

)( TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS 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, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
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 z.J D 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 PROCE EDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

OTHER:

IMMIGRATION COURT FF
CC: MERRILL-JOHNSON, MARGOT
125 E. HWY 114, STE 500
IRVING, TX, 75062

.:
 (
\

. '

UNITED STATES l>EPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATIER OF: )

) IN REMOVAL PROCEEDINGS

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OMARI, John Nyakundi )
) A 028-989-663
RESPONDENT )

CHARGES: Section 237(a)(2)(E)(i) of the Immigration and Nationality Act

(Act), as amended, in that any time after entry, you have been
convicted of a crime of domestic violence, a crime of stalking, or a
crime of child abuse, child neglect, or child abandonment.

Section 237(a)(2)(A)(iii) of the Act, as amended, as an alien who

has been convicted of an aggravated felony at any time after
admission as defined at 101(a)(43) including but not limited to
definitional subsections (M) and/or (U) of the Act.

Section 237(a)(2)(A)(ii) of the Act, as amended, in that any time

after admission, you have been convicted of two crimes involving
moral twpitude not arising out of a single scheme of criminal
misconduct.

APPLICATIONS: Application for Adjustment of Status under INA Section 245(a) in

Conjunction with a Waiver of Inadmissibility Pursuant to Section
212(h) of the Act.

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Omar A. Salas, Esq. Margot Merrill-Johnson, Esq.
Chavez & Valko, LLP Assistant Chief Counsel - DHS/ICE
10830 North Central Expwy., Suite 400 125 E. John Carpenter Freeway, Suite 500
Dallas, TX 75231 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I. FACTUAL AND PROCEDURAL IDSTORY

This case has a long procedural history, thus the Court will only state the pertinent facts

and history.

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The Respondent is a native and citizen of Kenya. Exh. 1. He became a lawful pennanent

resident of the United States on March 23, 1990. Id. On October 24, 2001, the Respondent was

served with a Notice to Appear charging him with removability under section 237(a)(2)(E)(i) of

the Immigration and Nationality Act (Act). Id. Additional charges were filed on June 19, 2001,

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under sections 237(a)(2)(A)(iii) and 237(a)(2)(A)(ii) of the Act. Exh. 1-A.

The charges under sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) have not been sustained.

However, on September 27, 2011, the Court found that he Respondent's conviction for 5th

Degree Assault under Minnesota law and his federal conviction for Conspiracy to Commit

Interstate Transportation of Stolen Property were crimes involving moral turpitude. Thus, he

was found removable as charged under section 237(a)(2)(A)(ii) of the Act, for having been

convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal

misconduct. See Exh. 1-A.

Presently, the Respondent seeks relief from removal under section 245(a) of the Act, in

conjunction with a waiver of inadmissibility under section 212(h) of the Act. A hearing on the

merits was held on August 14, 2013.

II. EVIDENCE

A. Documentary Evidence

The following documents are in the record of proceedings:

Exhibit I: Notice to Appear

Exhibit IA: Additional Charges oflnadmissibility/Deportability (Form 1-261)
Exhibit 2: Record of Deportable/Inadmissible Alien (Form 1-213), and attached
documents
Exhibit 3: Respondent's Conviction Record for Conspiracy to Commit Interstate
Transportation of Stolen Property
Exhibit 4: Application for Cancellation of Removal for Certain Permanent Residents
Exhibit 5: Copy of Indictment Relating to Respondent's Conviction for Conspiracy
to Commit Interstate Transportation of Stolen Property
Exhibit 6: Plea Agreement (Post-Remand)

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: ..
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Exhibit 7: Respondent's Supporting Documents and Designation of Witnesses (Post

Remand)
Exhibit 8: Application for Cancellation of Removal for Certain Permanent Residents
(Post-Remand)
Exhibit 9: Letter to Mr. Omar from the Immigration Service Acting Director, Karen
McCoy and Attached documents
Exhibit 10: Copy of Visa Petition filed by Mathias Omari

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Exhibit 1OA: Copy of Birth Certificate (Marked for Identification Purposes Only)
Exhibit 11: Approval Notice of 1-130, Petition for Alien Relative
Exhibit 12: Application for Adjustment of Status and Fee Receipt
Exhibit 13: Application for Waiver of Inadmissibility (Form I-601A)
Exhibit 14: Respondent's Supporting Documents and Witness List (Tabs 1-29)
Exhibit 15: Fourth Judicial District Family Court Division Notice of Responsive
Motion and Motion
Exhibit 16: Documents from INS (copies of a one-page handwritten letter, a Q&A, a
three-page letter, a Form 1-130 and a Form 1-751)

B. Admission of Documentary Evidence

There were only two objections as to the documents. The Government counsel objected

to the Respondent's submission of a copy of a birth certificate for a John Nyakundi arguing that

the certificate was a foreign document that had not been properly authenticated pursuant to 8

C.F .R. 1287 .6. The Court agreed and sustained the objection. Thus, it was marked for

identification purposes only as exhibit 1OA.

During the Respondent's testimony, Government counsel attempted to introduce a copy

of a motion filed by Jackline Ongechi in the Fourth Judicial District Court as impeachment

evidence. The Respondent's counsel objected arguing that it was hearsay evidence and claiming

that the document was fictitious. The Court overruled the hearsay objection, as hearsay evidence

is admissible in administrative proceedings and because the Respondent's counsel presented no

evidence to support his claim that the document was not authentic, it was admitted into the

record as exhibit 15. All other documents not objected to were introduced into the record.

3
 ' .

C. Testimonial Evidence

There were two witnesses in this case. The Respondent testified on his own behalf. The

Respondent's daughter Alicia Sabina Omari also testified.

Respondent's Testimony

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i.

The Respondent testified that he first entered the United States on an F-1 student visa.

He was 18 years old. The Respondent testified that he is not married, but he has been married

three times before. His first marriage was in January of 1989. That marriage only lasted six

months. It ended in June of 1989. His second wife was Eva Omari, she is a U.S. citizen. He

married her in 1991 and they divorced in 1996. His third wife was Jackline Omari. They

married in 1996. The marriage ended in divorce in 2005. The Respondent testified that he

remarried Eva Omari in May of2007. That marriage also ended in divorce in2013.

The Respondent testified that he had children with his first, second and third wife.

However-he later clarified that he only had children with his second and third wife. He had two

children with his second wife and one with his third wife. His oldest is his son Mathias. He is

24 years old. Sabina is the second born and she is 23 years old. The youngest is Jim, he is 17

years old. Jim lives in Minneapolis. Sabina and Mathias live in Dallas, Texas.

The Respondent stated that he used to pay child support for Jim. However, the state court

terminated the order upon request of the mother. When asked why she requested the court to

terminate the child support order, the Respondent stated "because she had moved on ... and

because she doesn't want me to have contact with my son ...she decided the best way to do that

was to terminate child support." The Respondent testified that despite that, he still keeps in

contact with his son through emails and phone calls. He further stated that he visited Jim two

times in Minneapolis.

4
 (

When asked if he had ever been citied or detained by any law enforcement officer, the

Respondent stated "yes .. . 10 times." The Respondent testified that he was first arrested in 1993

for failing to show proof of registration of insurance. He was not convicted for that offense. The

second time was in 1993 for a DWI charge, which he was also not convicted. The third time was

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in 1997 in MiIUleapolis for DWI. Again, he was not convicted. His fourth arrest was in 1998 in

Minneapolis for assaulting his third wife Jackline. He was again arrest for assaulting Jackline

that same year. For that offense he was convicted and received a probationary sentence of 90

days. The next time he was arrested was in 2002 in the Eastern District of Texas for

transportation of stolen property. The Respondent was convicted and sentenced to a six months

sentence in jail and three years of probation. Then in 2003, he was again arrested for DWI.

Those charges were dropped, however. Lastly, the Respondent was arrested in 2007 by

immigration officials in Dallas, Texas. The Respondent testified that he had no other arrests

after that.

Cross-Examination

The Respondent testified that he got his permanent status in the U.S. in 1989 through his

marriage with Eva. When asked if he ever paid child support from 1996 to 2007 for his children

Mathias and Sabina, the Respondent stated "no, I never paid child support. I was supporting

them financially by sending money to Eva to support them." The Respondent testified that he

did not have a child support order from the state of Texas during that time. He stated that they

went to court for the divorce and got joint custody of the children but he did not recall having to

pay child support.

The Respondent testified that he resided in Dallas, Texas with Eva continuously until

their divorce in 1996. The Respondent stated that they had not separated before they divorced.

5
 -- ------- ------- ------

After they divorced, the children primarily resided with Eva in Dallas. The Respondent testified

that he saw the children twice a month in Dallas from 1996 and on. During that time, he lived in

Minnesota. He testified that he sometimes would drive from Minnesota to Dallas and other

times he would fly. He further stated that he would stay at his brother-in-law's house when he

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came to visit his children. The Respondent again testified that he did not pay child support for

Mathias or Sabina.

From 2006 until 2012, the Respondent testified that Mathias and Sabina lived with him

and Eva. He stated that Mathias still lives with him. When asked if he still has a good

relationship with Eva, the Respondent stated "yes ... we talk almost every day."

Next, the Respondent testified about his relationship with Jackline and his son Jim. The

Respondent stated that he met Jackline in 1994 in Kenya. They started dating in 1995 when she

came to the United States to study in Minnesota. The Respondent testified that in 1995 he lived

in Minnesota. When asked to clarify his earlier testimony that he lived in Dallas with Eva until

1996, the Respondent stated, "For the one year difference, I used to back and forth so .. .I moved

to Minnesota in 1994 because I was going to school in Minnesota" The Respondent testified

that this was the fall semester, approximately August or September. He testified that he

separated from Eva before 1994. The Respondent testified that the initial plan was for Eva to

move with him to Minnesota, but she changed her mind.

Seeking clarity, Government counsel asked, "Okay, so starting in we'll say August or

September of 1994, you no longer resided with Eva. Is that a fair statement?" The Respondent

answered, "That's a fair statement." The Respondent stated that he resided with Eva from 1987

until the fall of 1994. During that entire time, the Respondent testified that he continued to

maintain a relationship with his children, but the children did not reside with him full time.

6
 The Respondent testified that he began living with Jackline when she came to the United

States in 1995. In 1996, they married. He lived with her until 1999. The Respondent testified

that their son Jim was born on May 26, 1996. When asked if he had a child support order for

Jim, the Respondent stated that he did. He testified that he paid about $200. He stated that he

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paid the money continuously. The Respondent testified that he was never delinquent on his child

support payments.

In an attempt to impeach the Respondent's testimony, Government counsel approached

the Respondent with exhibit 15, which includes a responsive motion and a sworn affidavit signed

by Jackline in 1998. The motion indicates that the Respondent was requesting that his child

support obligation be lowered due to the fact that he has another child support order in Texas.

The Respondent denied ever filing such motion. He stated that the document looked

"suspicious" and that he was not in the U.S. in 1998. Government counsel asked, "You told me

you lived with her until 1999. Is that not right?" The Respondent answered, "Yes." However,

when Government counsel again asked, "Okay, did you live with Jackline in 1999?" the

Respondent answered, "No, I did not." He stated that he stopped living with Jackline in 1998.

When asked to explain the discrepancy, the Respondent stated, "That is a bit long of a period of

time and sometimes I make a mistake. I don't have a record or make notes of when I stay with

her or not. I am trying to keep the information."

Government counsel, thus, instructed the Respondent to testify as such instead of

providing specific dates and then subsequently claim that he did not understand the question.

With that instruction in mind, the Respondent testified the following. He stated that he resided

with Jackline from 1995 to 1998, when they separated. He had a child support order for Jim.

However, he never asked to reduce the child support. When asked if Jackline wrote the

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statement, the Respondent stated "she never told me that she wrote the statement, but she signed

it." He testified further that he believed he last paid child support for Jim in 2002 and that he last

saw Jim about one year ago. The Respondent testified that he did not see Jim from 1998 until

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2012.

Next, the Respondent testified about his immigration history in the United States. He

stated that he entered on a student visa and remained in that status until he became a legal

permanent resident in 1990. He also testified that he applied for naturalization twice. His first

application was in 1994. He testified that when he filed that application he was living with Eva.

He was interviewed for the second application in 1996. When asked what he said during the

interview, the Respondent stated that he did not recall. At this point, Government counsel,

referring to exhibit 9, asked the Respondent if he remembered why his application for

naturalization was denied by the Immigration and Nationality Service (INS). The Respondent

stated, "It was denied on very flimsy grounds ... Because they alleged that it was written and then

signed by my wife but because my wife did not draft the letter but she signed the letter ...so I

believe they said I was misrepresenting facts about my application and based on that the

application was denied."

In its decision, the INS found that the Respondent stated incorrectly that his wife, Eva

Omari, went to Minnesota to visit and that he made false statements to make it appear that he

was living in a marital union with Eva. When asked to explain why he told INS during the

interview that Eva visited him in Minnesota when he had just testified in court that she never

visited him in Minnesota, the Respondent testified that Eva never visited him . He agreed that if

he told the INS otherwise, that would have been untrue.

8
 With his second application for naturalization, there was a letter signed by Eva. When

asked who wrote the letter, the Respondent answered "I don't know who wrote it. I know my

wife signed the letter." Government counsel approached the Respondent with the letter (Q 1).

Exh. I6. The Respondent confirmed that yes, this was the letter signed by Eva.

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Next, the Government asked the Respondent questions regarding the other documents

attached with the letter. See Exh. 16. The Respondent testified that on the Q&A (Q2) it

appeared to be Eva's handwriting. See id. On the three-page letter (Q3, Q4, QS) he testified that

it was Eva's handwriting. See id. However, the forensic document examiner, after reviewing the

handwritten letter (QI) with the other documents (Q2, Q3, Q4, Q5), concluded that Eva did not

write the letter submitted with the Respondent's naturalization application (QI). See id. "Your

testimony is that it was signed by Eva Omari?" Government counsel asked. The Respondent

answered, "What I am trying to tell you is that the same letter, this letter right here Judge, I took

the letter to my wife who signed this letter in front of the notary public and you should have this

letter signed by my wife in front of a notary public, that she is the one who signed the letter. She

attached her driver's license on this record and it should be part of the record."

The Respondent then was directed to the Q&A document (Q2), which he had testified

that it appeared to be Eva's handwriting. See Exh. I6. In that document, Eva stated that she did

not write or submit anything on the Respondent's behalf with regards to his naturalization

application. Id. Nonetheless, the Respondent reiterated that the letter was signed by Eva and she

attached her driver's license. When asked to explain why Eva on the Q&A stated that the

Respondent had a child support order for his kids while the Respondent told the Court that he

never had a child support order, he stated "I don't know why she was telling all these stories she

9
was telling but all I could think is that she thought I was with somebody else and she was

furious, that is the only way I can explain how she responded."

Next, the Respondent was questioned regarding his criminal history. The Respondent

testified that he was arrested in 1993 for DWI. When asked if he had to post a bond, the

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Respondent answered no, but he did appear in court. He testified that the case was dismissed in

1993. Af this point, referring to exhibit 14, page 117, Government counsel asked, "Okay and

according to the docket sheet, the case was filed in 1993 and in 1995 you did not appear and a

warrant was issued for your arrest and then in 1996 it was dismissed because it was absconded.

So, can you explain why your story is very different from this?" The Respondent answered,

"The attorney that was representing me on the case told me that it was dismissed. On what

grounds it was dismissed, I don't know." He explained that he went to court with his lawyer

soon after he was bonded out, and his lawyer told him it was dismissed. Government counsel

asked, "And why is that not represented on the docket sheet?" The Respondent stated, "I was in

court, I don't know. I don't know."

The Respondent testified that the next time he was arrested was in 1998 for domestic

violence. He stated that when he got home from work that night, he found his wife, Jackline,

having an extramarital affair. An argument arose. He stated that he did not physically touch,

push or throw anything at Jackline. Jackline called the police and he was arrested. The

Respondent stated that the charges were dismissed. Again in 1998, he was arrested for domestic

violence. The Respondent explained that it was the same situation; he walked in on Jackline

having an affair. The Respondent testified that he did not hit her. He only pushed her to the

wall. The Respondent pied guilty to assault and received 90 days probation. He testified that

Jackline had a restraining order against him but he did not recall for how long.
,

10
 Then in 2002, he was arrested for transportation of stolen property. The Respondent

testified that he was in business with an airline agent. They were a small travel agency and they

would buy tickets from wholesalers. They did this for about two and half years. The

Respondent testified that "allegedly some of the tickets that we bought from the alleged

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wholesalers happened to be stolen. The stolen tickets that were associated with my travel

agency, the government claimed that we had conspired to transport the stolen property across

state lines and that is how that came about." When asked if he sold stolen goods, the Respondent

stated that he sold tickets, but did not know the tickets were stolen. He said he found out the

tickets were stolen when he was in Kenya in 2002. Government counsel next asked, "Did you

ever travel yourself on tickets that had been stolen?" The Respondent answered, "Yes, that's

,
why I didn t know they were stolen. It is very stupid to travel on a knowingly stolen ticket."

However, in his plea agreement the Respondent stated that he did travel on stolen airline tickets

knowing they were stolen. See Exh. 6. To explain the conflicting testimony, the Respondent

testified that he was not telling the Court something different, that it was "only a correction of

events that occurred ten years ago that are quite difficult to remember." The Respondent stated

that as part of the plea agreement, he had to agree to all the factual allegations, which he testified

was correct. Then he admitted that the documents were stolen and that he used them in 1997.

The Respondent testified that he stopped the travel agency business in 1997 or 1998. He

received six months jail sentence and three years of supervision, plus he had to pay restitution.

11. Alicia Sabina Omari's Testimony

Direct Examination

Alicia testified that she is the Respondent's daughter, and she is a U.S. citizen. She lives

with her mother and brother Mathias. She works part-time as a data entry specialist with UPS.

11
She is also studying for an associate degree in criminal justice. After she receives her degree,

she hopes to join a police academy.

Alicia testified that her father, the Respondent, helps her pay for school expenses

including tuition and books. He gives her money every semester. She testified that her mother,

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however, has only paid for her school expenses once. Alicia testified that she only has two

classes left to complete.

Alicia further testified that she has suffered from depression since she was 15 years old.

She has been diagnosed with depression, anti-socialism, and slight bipolar disorder. She testified

that she was currently on medication and that her medication has gotten stronger over the years.

Alicia stated that the Respondent helps her with the medication expenses.

Cross-Examination

Alicia testified that she was born on September 13, 1990. She stated that she lived with

both of her parents until she was three years old, then she lived solely with her mother until

about when she was about 13 years old. She testified that during this time, from age 3 until 13,

she only saw her father about four or five times. During that time, her mother worked and

provided for her financially. From age 13 until about 18, she again lived with her mother and the

Respondent. Currently, Alicia lives with her mother and she does not pay for any rent or

groceries. She testified that her expenses are her car insurance and car loan. Her car payment is

$344 and her insurance is about $220 per month. The Respondent helps her pay for gas.

III. CREDIBILITY ANALYSIS

Any alien seeking relief or protection from removal must establish that he or she merits a

favorable exercise of discretion. INA 240(c)(4); 8 U.S.C. 1229a(c)(4)(C). The Real ID

Act's credibility framework found in INA 240(c)(4)(C) applies to "[a]pplications for relief

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from removal" made on or after May 11, 2005. Pub. L. No. 109-13, 119 Stat. 231 (2005). An

application is "made" on the date it is initially filed. Matter of S-B-, 24 I. & N. Dec. 42 (BJ.A.

2006). As the Respondent filed his applications after May 11, 2005, the Real ID Act's

credibility framework applies.

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Under the REAL ID Act, a court may determine credibility by examining the "totality of

the circumstances, and all relevant factors." INA 240(c)(4)(C). The Court must evaluate the

testimony of the applicant or other witness and determine "whether or not the testimony is

credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant has

satisfied the applicant's burden of proof." INA 240(c)(4)(B). In assessing credibility, the

Court may consider the following factors: demeanor, candor, responsiveness, inherent

plausibility of the applicant's or witness's account, the consistency between oral and written

statements, the consistency of such statements with evidence in the record, and any inaccuracy or

falsehood in such statements. INA 240(c)(4)(C). In making this determination, "(t]here is no

presumption of credibility." Id.

A. Credibility of the Respondent

There were significant credibility issues present in the Respondent's testimony. Initially,

the Court notes that his testimony was many times combative and evasive. He frequently

disregarded questions posed on cross-examination. The Government counsel, on several

occasions, had to repeat questions, in different ways, in order to elicit an appropriate response

from the Respondent. In addition to his demeanor, there were several inconsistencies that arose

during his testimony that taken together leads the Court to conclude he was not candid with the

Court.

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 First, much of the Respondent's testimony was in conflict with the evidence of record.

For example, the Respondent testified repeatedly that he never paid child support for Mathias

and Alicia. Yet, the record includes a handwritten statement that Eva provided to the INS stating

that the Respondent was ordered to pay child support for their children, Mathias and Alicia. See

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Exh. 16. The record also includes a signed sworn motion filed by Jack.line stating that the

Respondent was asking to have his child support obligation reduced because he had another child

support order in Texas. See Exh. 15. When asked to explain why his testimony differed from

Jackline and Eva's statements, the Respondent could not provide a convincing answer.

During his testimony, the Respondent also stated that Eva never visited him in

Minnesota. However, during his naturalization interview, he told the INS that Eva did visit him.

When questioned about these contradictory statements, the Respondent maintained that Eva

never visited him and admitted that if he told the INS otherwise, that would have been untrue.

Similar inconsistencies arose in relation to his criminal history. The Respondent testified

that he was arrested twice for domestic assault against Jack.line. His second arrest resulted in a

conviction. The plea agreement indicates that the Respondent hit his wife. Exh. 14, Tab 29 at

111. However, during his testimony, he claimed that he never hit Jackline. Additionally, when

asked if he travelled on stolen tickets, he vehemently denied knowing the tickets were stolen and

that "it is very stupid to travel on a knowingly stolen ticket." Nevertheless, when he pied guilty

to the conspiracy charge, he agreed that he travelled on stolen airline tickets knowing they were

stolen. See Exh. 6. His only explanation for this contradiction was that the events occurred a

long time ago and it was difficult to remember, but he later admitted that the tickets were stolen

when he used them.

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 Not only was the Respondent's testimony in conflict with the other evidence in the

record, his testimony was internally inconsistent, forcing him to correct his testimony several

times. For example, he testified that he lived with Eva in Dallas, Texas, continuously until their

divorce in 1996. He further stated that he and Eva had not separated before their divorce. He

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also testified, however, that he lived with Jack.line in 1995 in Minnesota. When asked to explain

the different testimony, the Respondent testified that in actuality he separated from Eva and

moved to Minnesota in 1994. Likewise, he testified that he lived with Jack.line from 1995 until

1999. Yet, when confronted with a motion filed by Jack.line in the family court in 1998

indicating that they were not living together, the Respondent again changed his earlier testimony

and stated that he stopped living with Jack.line in 1998. See Exh. 15. Although the Respondent

attempted to explain the contradicting testimony, his utterly different answers are irreconcilable.

Overall, the Respondent's propensity to change his story in an apparent attempt to portray

himself in a better light convinces the Court that, under the totality of the circumstances, he is

not a credible witness. Accordingly, the Court will render an adverse credibility finding against

him.

B. Credibility of Alicia Sabina Omari

Alicia's testimony was consistent, plausible, and believable. Her answers were

responsive and demonstrated candor toward the Court. Therefore, the Court finds that under the

totality of the circumstances, Alicia was a credible witness.

IV. APPLICABLE LAW

To establish eligibility for adjustment of status under section 245(a) of the Act, the

Respondent must demonstrate that he has been inspected and admitted or paroled into the United

States; is eligible to receive an immigrant visa and has a visa immediately available to him; is not

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statutorily barred from adjustment; and is admissible to the United States within the meaning of

section 212(a) of the Act or, if inadmissible, is eligible for a waiver of inadmissibility.

Section 212(h) of the Act allows a discretionary waiver for (1) crimes of moral turpitude,

except murder and torture; (2) commission of more than one crime; (3) prostitution; (4)

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diplomats who assert immunity; and (5) a single offense of simple possession of 30 grams or less

of marijuana. In order to obtain this waiver, the applicant must show that a denial of admission

would result in extreme hardship to a United States citizen or lawful permanent resident spouse,

parent, son, or daughter. INA 212(h)(l)(B). Such a finding is within the discretion of the

Court and the alien bears the burden of showing that he merits a favorable exercise of discretion.

Matter ofMarin, 16 I&N Dec. 581, 583 (BIA 1978).

Whether the Court should favorably exercise its discretion must be assessed on a case-by

case basis. Id. at 584. To make such a determination, the Court must "balance the adverse

factors evidencing an alien's undesirability as a permanent resident with the social and humane

considerations presented in his behalf." Id. Adverse factors include the nature and underlying

circumstances of the removability ground at issue, the presence of additional significant

violations of immigration laws, the existence of a criminal record, including the nature, rececy

and seriousness of the crime(s), and the presence of other evidence indicative of an alien's bad

character or undesirability as a permanent resident. Id. at 584. Positive discretionary factors

include family ties in the United States, a long-time residence in the United States (particularly

when residence began at a young age), evidence of hardship to the alien and his family upon

removal, service in the United States military, a history of employment, the existence of property

or business ties, evidence of value and service to the community, proof of genuine rehabilitation

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if a criminal record exists, and other evidence attesting to the respondent's good character (e.g.,

affidavits from family, friends, and responsible community representatives). Id. at 584-85.

As the seriousness of the negative discretionary factors increase, the applicant must

introduce "additional offsetting favorable evidence." Id. at 585. Thus, an applicant who has

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committed a single serious crime or a "succession of criminal acts, which together establish a

pattern of serious criminal misconduct" will not be granted relief absent a showing of "unusual

or outstanding equities." Id. at 633-34; see also Matter ofEdwards, 20 l&N Dec. 191, 196 (BIA

1990). "An alien who demonstrates unusual or outstanding equities, as required, does not

compel a favorable exercise of discretion; rather, absent such equities, relief will not be granted

in the exercise of discretion." Matter ofEdwards, 20 l&N Dec. at 196.

V. LEGAL ANALYSIS

Assuming arguendo that the Respondent has established extreme hardship to a qualifying

relative, the Court denies the Respondent's application for a waiver under section 212(h) of the

Act as a matter of discretion. See Matter of Mendez-Moralez, 21 l&N Dec. 296, 301 (BIA 1996)

(noting "that an application for discretionary relief, including a waiver under section 212(h), may

be denied in the exercise of discretion without express rulings on the question of statutory

eligibility.). Thus, he is not eligible for adjustment of status under section 245(a) of the Act.

The Respondent's long criminal history in the United States reflects a pattern of

dangerous behavior and disrespect for the law. The record indicates that while residing in the

United States, the Respondent was arrested four times for driving while intoxicated, which

resulted in a conviction in 2007. See Exh. 14, Tab 29. He was also arrested twice for assaulting

his then-wife Jackline, resulting in one conviction for which he was sentenced to 90 days

imprisonment. See id. Additionally, he was convicted in federal court for Conspiracy to

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 (

Commit Interstate Transportation of Stolen Property, an offense that resulted in over $665,000

loss to the victims. See Exh. 2. These are all very serious offenses. Consequently, the

Respondent must demonstrate "unusual or outstanding equities" in order to warrant a favorable

exercise of discretion. See Matter ofEdwards, 20 l&N Dec. at 196.

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The Respondent's positive equities include his long residence in this country and his

family ties including three U.S. citizen children. Additionally, the Respondent is well educated,

and he has a steady employment history. The Court also notes that the Respondent presented

affidavits from family and friends attesting to his good character, and his daughter testified that

he helps her with her expenses. See Exh. 14.

These equities, however, are counterbalanced by the Respondent's criminal record, which

reflects his "bad character or undesirability as a permanent resident of this country." Matter of

Mendez-Moralez, 21 l&N Dec. at 301. His testimony in regards to his criminal activity also

demonstrates a lack of rehabilitation. See id. at 304. When asked about his domestic violence

arrests, the Respondent seemed to indicate that he was provoked because he walked in on

Jackline having an affair. He also stated that he did not hit her, although the plea agreement

states that he "hit your wife." Exh. 14, Tab 29 at 111. Similarly, although he pled guilty to the

federal charge for transporting stolen property, he testified that he did not know the tickets were

stolen and that as part of the plea, he had to agree to all the factual allegations. An additional

negative factor is that the Respondent's naturalization application was denied based on a finding

that he made material misrepresentations regarding his marriage to Eva. See Exh. 16. This

finding combined with his lack of credibility leads the Court to conclude that the Respondent has

not met his burden of establishing that a grant of section 212(h) relief is warranted in the exercise

of discretion.

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r

VI. CONCLUSION

In light of the above, the Respondent is ineligible for adjustment of status because he

cannot demonstrate that he is "admissible to the United States for permanent residence," as

required by section 245(a)(2) of the Act. Therefore, the Respondent's application for adjustment

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of status is hereby denied. The Court notes, however, that even if the Respondent were

statutorily eligible for adjustment, the Court would still deny the Respondent's application in the

exercise of discretion for all of the reasons included in the analysis above.

Accordingly, the following order shall be entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's application for a waiver under

2l2(h) of the Act be DENIED.

IT IS FURTHER ORDERED that the Respondent's application for adjustment of status

pursuant to section 245(a) of the Immigration and Nationality Act be DENIED.

IT IS FINALLY ORDERED that the Respondent be REMOVED from

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States to Kenya on the charges contained on the Notice to Appear.

Date: th day of February, 2016

Dallas, Texas
Deitrich H. Sims
United States Immigration Judge

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