Professional Documents
Culture Documents
Department of Justice
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.
O'Connor, Blair
Wendtland, Linda S.
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Userteam: Docket
Cite as: Teresa Moreno-Gonzalez, A200 946 740 (BIA June 29, 2017)
A098 657 014
It is undisputed that the respondent is statutorily eligible to adjust his status pursuant to section
245(i) of the Act. Accordingly, the sole question on appeal is whether the respondent merits this
relief in the exercise of discretion (I.J. at 3-13). Where an applicant for adjustment of status under
section 245 of the Act presents adverse discretionary information, it is necessary to
offset this negative information with countervailing positive equities. See Matter of Arai,
13 I&N Dec. 494, 496 (BIA 1970). In the absence of adverse factors, adjustment of status will
Among the factors deemed adverse to an alien are "the nature and underlying circumstances
of the [ground of inadmissibility], the presence of additional significant violations of this country's
immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness,
and the presence of other evidence indicative of a respondent's bad character or undesirability as
a permanent resident of this country." See Matter of Marin, 16 l&N Dec. 581, 584 (BIA 1978).
Favorable considerations "include such factors as family ties within the United States, residence
of long duration in this country (particularly when the inception of residence occurred [at an early
age]), evidence of hardship to the respondent and [his] family if [removal] occurs, service in this
country's Armed Forces, a history of employment, the existence of property or business ties,
evidence of value and service to the community, proof of a genuine rehabilitation if a criminal
record exists, and other evidence attesting to a respondent's good character." See id. at 584-85.
Upon de novo review, we agree with the Immigration Judge that the respondent's criminal
history is a negative factor in his case (I.J. at 10-13). The respondent was arrested on five separate
occasions between 2003 and 2012: 1) driving while under the influence ("DWI") in 2003,
2) battery against a household member in 2005, 3) aggravated battery with great bodily harm in
2008, 4) public affray in 2010, and 5) shoplifting in 2012 (I.J. at 3-4; Exh. 2A, Tab Cat 60). The
DWI offense was dismissed without prejudice because the arresting officer retired and pre-trial
interviews were not completed before trial (Exh. 2A, Tab D at 61; I.J. at 5). The battery against
a household member charge was dismissed because the respondent was granted voluntary
departure in removal proceedings and supposedly was not going to be in the United States any
longer (Exh. 2A, Tab D at 64; I.J. at 5-6; Tr. at 48-49). The aggravated battery with great bodily
harm charge was dismissed without prejudice (Exh. 2A, Tab D at 67-69; I.J. at 6), and the public
affray charge also was dismissed (Exh. 2A, Tab D at 70; I.J. at 6). The respondent served some
time in jail for the shoplifting charge, but it was ultimately dismissed after the respondent agreed
in pre-trial proceedings to perform community service (Exh. 2A, Tab D at 71; I.J. at 6-7; Tr. at 53,
88-91). We note that none of these arrests resulted in a conviction.
In contrast, there are several significant positive equities in the respondent's case (I.J. at 7,
9-10). The respondent and his wife have been married since 2001 and she is a naturalized
United States citizen. They have three United States citizen children, ages 18, 16, and 5 at the
time of the respondent's hearing below, and the respondent helped to raise the respondent's wife's
older daughter from a prior relationship (I.J. at 2, 9; Tr. at 41, 48). Both the respondent and his
wife work (I.J. at 2; Tr. at 41-43). If the respondent is removed, his wife and children would
remain in the United States without him, resulting in family separation (1.J. at 3; Tr. at 46-47). The
respondent's wife has suffered from depression, including suicidal ideations, but she and the
respondent testified that she was doing pretty well at the time of the hearing. However, the wife
2
Cite as: Teresa Moreno-Gonzalez, A200 946 740 (BIA June 29, 2017)
A098 657 014
is concerned that the respondent's removal would exacerbate her depression. I.J. at 7; Tr. at 46,
101, 103-104; Exh. 2B at 28-37. The respondent also submitted several letters of support from
community leaders and employers that communicate their high regard for him as a person and a
professional (Exh. 2B at 43-49).
In balancing the foregoing positive and negative considerations, we disagree with the
When considering the foregoing, and counterbalancing the negative considerations against the
positive equities in this case, we disagree with the Immigration Judge that the negative factors
outweigh the positives. In particular, we conclude that the lack of any criminal convictions, in
conjunction with the respondent's length of residency, his long marriage to a naturalized
United States citizen, his three United States citizen children and one stepchild, his wife's
depression, his steady employment history, and his letters of support, tip the balancing of the
equities in the respondent's favor. Thus, the respondent is deserving of adjustment of status in the
exercise of discretion.
3
Cite as: Teresa Moreno-Gonzalez, A200 946 740 (BIA June 29, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS
In the Matter of
)
RODOLFO CAJIGAS SIFUENTES ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
1
United States without being admitted. During the course of the hearing, the
Government chose to strike the 212(a)(9)(C)(i) charge to the remaining allegations and
The respondent has applied for cancellation of removal pursuant to Section 245
of the Act. The issue before the Court today is his eligibility for this form of relief.
STATEMENT OF FACTS
The Notice to Appear has been marked and admitted as Exhibit 1. Additionally,
the following documents have been marked and received into evidence. Exhibit 2 was
Exhibit 2-A is other information supporting the request of relief to include criminal
requested relief, to include letters of support from friends and families and tax returns.
Exhibit 3 was the Government's memorandum of law, to include l-213's related to the
respondent.
Testimony was taken from the respondent, his wife, and oldest son. Their
Respondent states that he is married to his United States citizen wife. They have
three children, all born in the United States, ages 18, 16 and 5. They are all attending
school and doing well. According to the respondent, his wife has two separate jobs. He
cannot recall the name specifically of where she works. She does have, apparently, a
varied work schedule. Respondent testifies that he has worked in the construction field
for over 16 years, makes approximately $450 per week presently, works from 7:00 to
they are purchasing. Turning to volunteer work, the respondent states that he works in
a program dealing with food services to those in need. Further, he states he does help
Related to his children, respondent testifies that he does spend time with them
after school and after work to include going to the park, playing, and watching movies.
Respondent describes that he understands that his wife has some medical problems
apparently related to depression. He believes that she does take some medicine for
that condition and it has affected her in the past. He does, however, believe that her
removed. Furthermore, he would not be able to support them as well as he does now
Respondent states that his first entry was around 1998. He states that at that
point in time he did have a visa to enter the United States legally. Apparently at at
some point that document was turned in, and he now has in part a work authorization
document.
Respondent further testifies that he married in 2001 to his current wife, and
because of that decided to stay in the United States without status. He does
acknowledge in 2006 going before a prior Immigration Judge and being granted
voluntary departure. He states that he did leave voluntarily, but apparently came back
Respondent then reviewed briefly his criminal history. He addressed the five
criminal arrests that have been part of the record. His first arrest in 2003 he believes
was alcohol related, driving while intoxicated. He states he was not convicted. The
again, he was not physical with his wife and was not convicted for that offense. The
fourth arrest in 2010, he states he was in an altercation with someone while he was
working at a location that resulted in a fight after respondent claims this individual
almost ran him over. Respondent states he was not convicted for this offense. Fifth
arrest, 2012, apparently the respondent was found guilty of theft, perhaps shoplifting,
wherein he went to a store. He says he did not intend to take anything without
permission. According to him, he was provided an opportunity to take a certain program
Respondent testifies that he has never abused alcohol or drugs, has not made
any false claims to U.S. citizenship, has never used any false documents, has never
been involved with any illegal drugs or alien smuggling. Further, respondent states he
wants to stay in the United States because his children need him and he wants to be
with them and his wife. To the Court, the respondent acknowledges that he has many
arrests; that he asks for forgiveness because he is sorry for the things he has done.
On cross-examination, respondent was questioned further as to criminal history
to include the arrest related to issues with his wife. He states at some point he believes
he did obtain some class instruction on violence and anger management that he
believes has helped him. Furthermore, he believes that those incidents happened when
he was younger, around age 31, and now life has taught him more things, that his
children are all older, and he is doing the best he can.
Respondent further acknowledges, again, that he did leave in 2006 after being
Respondent states that his volunteer work does include working at what appears
The Court then queried the respondent. The respondent put on notice that it was
concerned about the five separate arrests respondent has had, whether or not they
does acknowledge that he had two or three beers, was stopped at a checkpoint and
was arrested. He does recall taking a breathalyzer that apparently showed him of
having alcohol higher than the level permitted by law. He was not sure why the case
was dismissed. The Court then referred him to documents indicating that it appears the
case was dismissed because of one of the police officers retiring, not available for trial,
and not having perhaps being ready for this specific trial at hand.
The next offense dealing with family violence, the respondent acknowledges now
that he was drinking alcohol, beer, that night. That has contrasted with earlier testimony
that he did not drink after his DWI incident. He maintains that he never touched his wife
illegally during that event. Apparently he instead left the household when his wife called
the police. He was told later to go down to meet the police about this incident, was in
fact then arrested, spent about a week in jail, and then turned over to Immigration
authorities. When questioned as to why this case was dismissed, again respondent
was not quite clear. Again, the Court referred to respondent's documents indicating that
his wife improperly, but further questioning indicates that perhaps he cannot recall well
the circumstances, but he feels about the incident. There could, in fact, have been
some pushing between him and his wife. The Court does note that that charge was not
just for domestic violence battery against a household member, but in fact aggravated
battery with great bodily harm. The Court then inquired further as to specifics as to why
that case was dismissed. It appears the documentation, page 67, does not go into
perhaps details as previous dismissals to give a better explanation about why that case
did not proceed to a full hearing.
without paying and was subsequently arrested. He states he did go to jail, did see a
judge, and apparently was provided an opportunity to do community service, which
ultimately resulted in having the case dismissed.
2001, have three children from their relationship, but she has an older daughter from a
previous relationship that the respondent has also helped raise. The witness testifies
that she does work two separate jobs, one in a hotel and one as a caregiver. Further,
respondent does help her with her children while the witness is working at these jobs.
She states the respondent does have a very good relationship with his children.
The witness then went on to describe her health conditions. She indicates that
she has had depression in the past, particularly after the birth of her last child. She
states that she has taken medication in the past for anxiety and has seen medical
treatment in the past. The witness does state that she does feel better now, and has
improved over time with her condition. Further, she states that she does rely on the
respondent greatly when she is depressed. She believes if respondent is deported that
her condition could get worse and it would affect, of course, her and her children's
ability to remain in the United States in the manner and means that they have
accustomed themselves to. Further, the children do have future plans in the United
States that she wants the family to be able to enjoy together.
She further states that there is some degree of participation in church
appears that the witness again cannot recall well specifics, based in part to her
depression. This was confirmed by the Court when she did not recall the respondent
drinking during the first incident as he recalls happening, and in the second incident
where he recalls pushing involvement between the two of them, and the witness cannot
because that is still an issue to some degree. According to the witness, he has not
seen his parents argue or seen them hitting each other. However, he is not really
familiar with any of the respondent's arrests. He further believes that his father
deserves to stay in the United States and that he has been a great role model.
STATEMENT OF THE LAW
The status of an alien who has been inspected, admitted, or paroled in the United
States may be adjusted to that of an alien lawfully admitted for permanent residency if
he applied for adjustment, is eligible to receive an immigrant visa, and is admissible to
the United States for permanent residency and an immigrant visa is immediately
available to him at the time his application is filed. Section 245 of the Act. If eligibility is
established, adjustment of status may be granted in the exercise of discretion. Matter of
discretion. See Matter of Ibrahim, 18 l&N Dec. 55 (BIA 1981); Matter of Cavazos, 17
Discretion must be exercised even though the statutory prerequisites have been met.
Matter of Ortiz-Prieto, 11 l&N Dec. 317 (BIA 1965); see also Matter of Blas. A favorable
exercise of adm inistrative discretion is warranted where positive factors such as family
ties, length of residency and hardship, outweigh adverse factors. Matter of Arai.
However, where adverse factors are present, it may be necessary for the applicant to
present unusual or outstanding countervailing equities to merit a grant of an application
for adjustment of status.
The Court also notes that the Fifth Circuit Court of of Appeals in Mamoka v. INS,
43 F. 3d 184 (1995), has found that an application for adjustment of status is proper if it
is adequately addressed and gave appropriate weight to equities, but found that those
were insufficient to outweigh alien's blatant disregard for I mmigration laws.
FINDINGS OF THE COURT
The Court will first note that the respondent does, in fact, have some positive
with medical problems and perhaps some deg ree at the present time and perhaps some
to the future . However, the Court notes, again , it is the burden of the respondent to be
there i s some documentation a s to this individ ual's issues i n the past, the Court i s not
quite clear the extent of that cu rrent condition and the cond ition in the future. While
there has been, again, depression in the past that has caused some concerns . the
Court does not find that to be overwhelming evidence before this Court to find that to be
authorization and has been using that for the last several years. Further, apparently
has been filing taxes for the last several years. Finally, he has done some apparent
The Court wi ll also note that there are numerous letters from ind ividu als that
state that they know the ind ivid ual and think highly of him. However, the Court will note
that these individuals were not subject to cross-exam ination , that those letters do not
indicate any knowledge, if any, as to respondent's m u ltiple cri m inal arrests. Therefore,
Next, turning to respondent's negative factors. The Court notes again, clearly,
the respondent has five separate criminal arrests. While the Court clearly
acknowledges that it appears it was just the last conviction when in fact the respondent
was perhaps in effect found g u i lty but g iven pretrial d iversion, nonetheless it is the facts
and circumstances of each arrest that, notwithstanding any convictions, do g reatly
concern this Court. To that end , the Court again notes the following . First, the
respondent states that these convictions were done when he was younger. However, it
his either late 20's or early 30's . The Court does not find this to be a reasonable
the respondent was in fact drinking and driving since he had an alcoholic level higher
than perm itted . It appears based on the evidence of record that the full case d id not
proceed to trial because of a lack of available witnesses. Therefore, the Court does find
Next, we have the first family violence issue when the respondent apparently was
still drinking to some degree and there were some type of issues between the
respondent and his wife. The Court finds that both individ uals' memories appear not to
be very clear about the specifics , and there is no pol ice report to ascertain more specific
facts during the incident and su bsequent arrest. Whether or not there was actually
unlawful touchi ng , there was i n fact an arrest made and , again, the Court finds the
reason for this dism issal, to wit: that the respondent was deported from the U n ited
States, did not show that the respondent in fact was not g u i lty of some crim inal
violations. As noted , after this second arrest respondent was in fact turned over to
Immig ration authorities , was detained, saw an Immig ration J udge who, based on the
facts and circumstances of respondent's case at that time, chose fit to provide the
respondent the opportun ity to leave the Un ited States volu ntari ly, wh ich the respondent
accepted .
However, it is q uite clear to this Court that the respondent had no real i ntent to
not come back to the U nited States since he freely admits that he came back after
leaving voluntarily by a court order several months later illeg ally to reunite with h is
family. The Court finds this to be a sig nificant adverse effect since it clearly
A098-657-01 4 11 May 1 8, 20 1 6
demonstrates the respondent's flagrant violation of Immigration laws that provided the
respondent basically to come back to the United States and continue his life in the
United States now in an unlawful status.
Turning to the fourth arrest, the Court notes that the respondent may have in fact
been put in a situation where he was just basically defending himself. Again, the facts
are not quite clear and, apparently, there was no conviction. The Court does not find
this to be, of the five arrests, the most significant one.
Turning to the final arrest, the respondent seems to minimize what happened, but
it is clear to this Court that he did, for whatever reason, leave a store without paying for
items taken. Respondent was in fact fortunate that he was provided an opportunity to
have pretrial diversion so that ultimately there was no conviction rendered.
The Court looks at the totality of the circumstances and events surrounding
respondent's life in the United States when determining how serious these adverse
factors are. Once again we are dealing with not one, not two, not three, but five
separate arrests by the respondent with dismissals for various reasons that do not
satisfy this Court, again, that the respondent was not in violation of criminal laws for at
least several of these offenses. Again, clearly the respondent committed these offenses
both during and after an opportunity to leave voluntarily, which he chose to then violate
the laws by coming back illegally.
A098-657-014 12 May 1 8, 20 1 6
The Court believes that it has fully analyzed both the positive and negative
factors in respondent's case. Again, as the case law dictates, individuals with
questionable behavior in the United States may in fact need to demonstrate unusual or
is in the best interest of not only the respondent, but society at large as to a grant of
adjustment of status. Simply put, the Court cannot and will not find that the respondent
is in fact deserving of adjustment of status based on his conduct in the United States
over many years. Therefore, and in the Court's discretion, the Court will deny
The respondent's application for cancellation of removal under Section 245 of the
Act is hereby denied.