U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, V1rgm1a 22041

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Gomez, Zoila Marisol OHS/ICE Office of Chief Counsel - BOS
Law Offices of Zoila M. Gomez P .0. Box 8728
84 East Haverhill Street Boston, MA 02114
Lawrence, MA 01841

Name: H ,J L A 772

Date of this notice: 6/29/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Kendall Clark, Molly
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: J-L-H-, AXXX XXX 772 (BIA June 29, 2017)
. ..

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A 772 - Boston, MA Date:

JIN 2 9 2017
In re: J L H

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Zoila M. Gomez, Esquire

APPLICATION: Cancellation of removal under section 240A(b)(l) of the Act

The respondent, a native and citizen of the Dominican Republic, appeals from the
Immigration Judge's decision dated August 16, 2016, which denied his application for
cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C.
1229b(b), but granted voluntary departure under section 240B of the Act, 8 U.S.C. 1229c.
The Department of Homeland Security (DHS) has not replied to the respondent's brief on
appeal. The record will be remanded.

The record indicates that a different Immigration Judge (''the second Immigration Judge")
from the Immigration Judge who presided over the respondent's hearing (''the first Immigration
Judge") signed and issued the August 16, 2016, decision (l.J. at 4). In this regard, and in relevant
part, the respondent applied for cancellation of removal based on his claim that his removal
would result in exceptional and extremely unusual hardship to his qualifying relatives (his
United States citizen child) (l.J. at 4; Exh. 3). At the conclusion of the merits hearing on
October 29, 2014, the first Immigration Judge closed the record and indicated that a decision
would be issued later (Tr. at 73). See section 240A(e) of the Act; 8 C.F.R. 1240.2l(c)(l)
(directing immigration judges to reserve granting or denying applications for cancellation of
removal until such time as a grant becomes available in a subsequent fiscal year).

On August 16, 2016, the second Immigration Judge signed and issued a written decision
"for" the first Immigration Judge. That decision, evidently prepared by the first Immigration
Judge, denied the respondent's cancellation of removal application but granted voluntary
departure (l.J. at 4).

Section 240A(e) of the Act provides context for analyzing this case and addressing some of
the concerns we have with this case before us. That section states that no more than 4,000
applications for cancellation of removal under section 240A(b) of the Act or suspension of
deportation under former section 244(a) of the Act, 8 U.S.C. 1254(a), may be granted in any
fiscal year. Federal regulations at 8 C.F.R. 1240.21 set up a procedure to implement this
statutory cap. Under this procedure, the Immigration Judges and the Board can grant (or deny)
cancellation and suspension cases as long as nwnbers are available. With certain exceptions,
once the cap is reached further decisions will be reserved and issued once nwnbers become
available. The regulation provides in pertinent part:

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772

When grants are no longer available in a fiscal year, further decisions to grant or
deny such relief shall be reserved until such time as a grant becomes available under
the annual limitation in a subsequent fiscal year. Immigration judges and the Board
may deny without reserving decision or may pretermit those suspension of
deportation or cancellation of removal applications in which the applicant has failed
to establish statutory eligibility for relief. 1

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8 C.F.R. 1240.21(c)(l)

We find additional guidance on the applicability of the annual cap in an Operating Policies &
Procedures Memorandum ("OPPM") issued by the Office of the Chief Immigration Judge.
Procedures on Handling Applications for Suspension/ Cancellation in Non-Detained Cases Once
Numbers are no Longer Available in a Fiscal Year (OPPM 12-01) ( February 3, 2012). The
OPPM sets forth the procedures for reserving decisions in non-detained suspension of
deportation or cancellation of removal cases which are subject to the cap. The OPPM does not
specifically address or authorize one Immigration Judge to render and reserve an oral or written
decision while another Immigration Judge issues that decision. See OPPM 12-01.

Federal regulations provide that where an Immigration Judge is no longer available to

complete his or her assigned cases, another Immigration Judge may be assigned to complete
those cases. 8 C.F.R. 1240.l(b). The regulations require that the new Immigration Judge
familiarize himself or herself "with the record in the case and shall state for the record that he or
she has done so." 8 C.F.R. 1240.l(b). In this case, the record does not reflect that the second
Immigration Judge complied with this regulation, as she did not state on the record that she had
familiarized herself with the case.

Additionally, assuming the first Immigration Judge prepared the written decision, the second
Immigration Judge's effort to give legal effect to the first Immigration Judge's decision by
signing the decision on his behalf on August 16, 2016, was also improper; the first Immigration
Judge was retired on that date and thus had no authority to issue decisions. In this regard, there
is no indication that the first Immigration Judge was re-appointed as an Immigration Judge on
that date or that he was designated or selected as a temporary Immigration Judge. See 8 C.F.R.
1003.lO(a), (e). There is no authority supporting the proposition that an Immigration Judge
can decide a case after retiring, unless re-appointed as an Immigration Judge or otherwise made a

temporary Immigration Judge.

Under the circumstances, we will remand the record for the Immigration Judge who is
substituted for the first Immigration Judge to comply with the requirements of 8 C.F.R.
1240.l(b). We express no opinion as to the respondent's ultimate eligibility for the requested
form of relief. Accordingly, the following order will be entered.

1 The regulation further specifies that the denial or pretermission may not be based on an
unfavorable exercise of discretion, a finding of no good moral character on a ground not
specifically noted in section lOl(t) of the Act, 8 U.S.C. l lOl(t), or a failure to establish the
requisite hardship. 8 C.F.R. 1240.21(c)( l).

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772

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the forego ision.

FOR THE BOARD

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Cite as: J-L-H-, AXXX XXX 772 (BIA June 29, 2017)


' .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON, MASSACHUSETTS

IN THE MATTER OF:

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J L H In Removal Proceedings
A 772
Respondent

CHARGE: Immigration and Nationality Act (INA) section 212(a)(6)(A)(i), in that the
Respondent is an alien present in the United States without being admitted
or paroled.

APPLICATIONS: Cancellation of removal pursuant to INA section 40A(b)

ON BEHALF OF RESPONDENT ON BEHALF OF DBS

Zoila Gomez, Esquire Mary Kelly , Esquire

84 East Haverhill Street Assistant Chief Gounsel
Lawrence, MA 01841 15 New Sudbury Street, Room 425
Boston, MA 02203

DECISION OF THE IMMIGRATION JUDGE

I. Background and Procedural History

The Respondent in this case, J L H is a forty year old, divorced, native and
citizen of Dominican Republic. Removal proceedings were initiated against him when the
Immigration Service of the Department of Homeland Security issued a Notice to Appear (NTA)
on March 28, 2011, charging him with being removable from the United States on the basis of
the charge set forth above. (Exhibit 1).

The respondent, through counsel, admitted the truth of the factual allegations in the
Notice to Appear, conceded removability as charged, designated Dominican Republic as the
country for removal purposes if necessary, and sought the opportunity to apply for the ground of
relief set forth above. (Exhibit 2 ).

Based upon the respondent's admissions, as well as his concession of removability, I find
that removability has been established by clear and convincing evidence.

II. Applicable Law

To be eligible for cancellation of removal under INA 240A(b), the Respondent must


.. (

establ!sh that he ( 1) has been physically present in the United States for a continuous period of
not less than 10 years immediately preceding the date of such application; (2) has been a person
of good moral character during such period; (3) has not been convicted of an offense Wlder
section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act; and (4) establishes that removal would
result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who
is a citizen of the United States an alien admitted for lawful pennanent residence. See INA

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240A(b)(l).

The ten-year period of good moral character is calculated backward from the date on
which the final administrative decision is entered by the Immigration Judge or the Board. Matter
of Garcia, 24 l&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-
798 (BIA 2005).

An alien who has committed a crime involving moral turpitude that falls within the "petty
offense" exception is not ineligible for cancellation of removal under INA 240A(b)(l)(B) of
the Act, because commission. of a petty offense does not bar the offender from establishing good
moral character under section I 01 (f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec.
590 (BIA 2003). An alien who has committed more than one petty offense is not ineligible for
the "petty offense" exception if "only one crime" is a crime involving moral turpitude. Id.

To establish "exceptional and extremely unusual hardship," the applicant must show
that his qualifying relative would suffer hardship substantially beyond that which would
ordinarily result from an alien's removal. See Matter of Momeal, 23 l&N Dec. 56, 59 (BIA
2001) (finding that the qualifying relatives were healthy and would suffer hardship that was not
substantially different from that expected from the removal of any alien with close family
members in the United States). Yet, the alien need not show that such hardship would be
unconscionable. Id. at 61. Only hardship to the alien's qualifying relative is considered. INA
Section 240A(b)(l)(D). However, hardship to the alien may be evaluated insofar as it affects his
or her qualifying spouse, parent, or child. Matter of Monreal, 23 I&N Dec. at 63.

Factors to be considered in determining the level of hardship include the qualifying

relative's age, health, length of residence in the United States, and family and community ties in
the United States and abroad. Matter of Monreal, 23 I&N Dec. at 63. A lower standard of living,
diminished educational opportunities, poor economic conditions, and other adverse country
conditions in the country of removl are also relevant factors, but will generally be insufficient,
in and of themselves, to support a finding of exceptional and extremely unusual hardship. Matter
of Andazola-Rivas, 23 l&N Dec. 319, 323-324 (BIA 2002); Matter of Monreal, 23 I&N Dec. at
63;. However, all hardship factors should be considered in the aggregate to determine whether
the qualifying relative will suffer hardship that is exceptional and extremely unusual. Matter of
Monreal, 23 l&N Dec. at 64. See generally Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001)
(evaluating the P.ardship standard under the former suspension of deportation statute). For
example, the Board has determined that diminished educational and economic opportunities in
the country of removal, when combined with the financial burden on the adult respondent, who
was sole financial provider for her six U.S. citizen children, the children's unfamiliarity with the

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language in the country of removal, the lawful residence of the respondent's immediate family in
this country, and the lack of family ties in the country of removal, among other factors,
cumulatively rendered the hardship "well beyond that which is nonnally experienced in most
cases of removal." Matter ofRecinas, 23 I&N Dec. 467, 472 (BIA 2002).

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III. Statement of the Facts

The respondent was served with his NTA on March 28, 2011. In order to satisfy the
continuous physical presence requirement the respondent would be required to demonstrate that
he entered the United States on or before March 27, 200 l.

The respondent's testimony was that he entered PuertoRico by boat, without inspection,
on July 16, 2000, and then New York on July 20, 2000, with a visitor visa that he purchased for
$3,000.00. However, the visa, which was issued to a person by the name of Clifford Walters,
was not issued until August 21, 200 l: Therefore, the respondent could not have purchased the
visa in July of 2000, because it did not exist at that time.

Other than the visa which was issued on August 21, 2001, and a few non-persuasive
personal letters, the respondent has not submitted any supporting documentation regarding his
presence in the United States prior to the year 2009. The respondent has failed to establish that
he entered the United States on or before March 27, 200 I. The respondent's testimony with
respect to this aspect of his case is deemed to be non-credible.

The respondent testified that he has a four year old United States citizen daughter, H
and a twelve year old daughter L , who is neither a United States citizen or lawful permanent
resident.

H 's mother is also a citizen of Dominican Republic who is neither a United States
citizen or lawful permanent resident. H is healthy and well-adjusted. She does well in pre
school.

The respondent says that if H is required to go to Domincan Republic with him she
would not have as good an education and will have a better future in the United States. It will be
difficult for him to obtain employment in Dominican Republic.

IV. Findings and Analysis

The respondent has failed to establish the requisite physical presence in the United States
such as to qualify for cancellation of removal.

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. The respondent has not been convicted of any disqualifying criminal offenses. His New
Hampshire shoplifting conviction qualifies as a petty offense.

For the purposes of this decision I will I find the respondent to be a person of good moral
character.

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The respondent has not demonstrated that the hardship to his United States citizen child
would be substantially beyond the ordinary hardship that would be expected when a close family
member leaves this country. Considering all of the hardship factors in the aggregate I find that
the lower standard of living, adverse country conditions and lesser educational opportunities in
Dominican Republic are insufficient to support a finding of exceptional and extremely unusual
hardship. I do not find that this is a truly exceptional or compelling case.

The respondent has applied for the privilege of volutary departure in the alternative and
I find him to be worthy of such minimal relief.

ORDERS

IT IS HEREBY ORDERED that the respondent=s application for cancellation of

removal be denied.

IT IS FURTHER ORDERED that the respondent be granted the privilege of

voluntary departure without expense to the government within 60 days from the date of
this order upon the condition that he report to the DHS in or with five business days from
the date of this order for the purpose of posting a $500.00 voluntary departure bond, as
well as satisfying the DHS as to proper and appropriate travel documentation. If the
respondent fails to voluntarily depart when and as required then and alternate order of
removal from the United States to Dominican Republic will be entered forthwith and he
will become ineligible for a period of ten years for voluntary departure, cancellation of
removal, registry and adjustment or change of status. Additionally he will be subject to a
fine of $3,000.00.

If any party elects to appeal this decision the Notice of Appeal must be received by the
Board of Immigration Appeals within thirty (JO) days from the date of this decision.

' rA._
'S/ ffo./lb
oatr / Leo rd Shapiro
Im igration Judge