U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Swte 2000

Falls Church, Virg1ma 22041

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Gonzalez, Raed Olivieri OHS/ICE Office of Chief Counsel - POK
Gonzalez Olivieri LLC 126 Northpoint Dr.,
2200 Southwest Frwy Ste 550 Suite 2020
Houston, TX 77098 Houston, TX 77060

Name: URBIETA-GUERRERO, OMAR A 076-837-552

Date of this notice: 1216/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Adkins-Blanch, Charles K.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Sulle 2000

Falls Church, Virgm1a 22041

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URBIETA-GUERRERO, OMAR OHS/ICE Office of Chief Counsel - POK
A076-837-552 126 Northpoint Dr.,
HOUSTON PROCESSING CENTER Suite 2020
15850 EXPORT PLAZA DRIVE Houston, TX 77060
HOUSTON, TX 77032

Name: URBIETA-GUERRERO, OMAR A 076-837-552

Date of this notice: 12/6/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

DOYUtL ct1..AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Adkins-Blanch, Charles K.
Mann, Ana

(., - :

Userteam::

Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
U.S. Bep!lrtment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A076 837 552-Livingston, TX Date:

DEC - 6 2017
In re: Omar URBIETA-GUERRERO a.k.a. Omar Guerrero Urbieta

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Raed Olivieri Gonzalez, Esquire

APPLICATION: Remand; adjustment of status; voluntary departure

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated June 27, 2017. The Immigration Judge found the respondent removable,
pretermitted his application for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.C. § 1255, and denied his request for voluntary departure, under section
240B of the Act, 8 U.S.C. § 1229c. On appeal, the respondent requests remand for further
consideration of adjustment of status. The record will be remanded.

Before the Immigration Judge, the respondent sought adjustment of status based on the
approved immigrant visa petition (Form 1-130) that his United States citizen wife filed on his
behalf, which was approved on February 8, 2017. The respondent argues that he is eligible to use
this approval, in conjunction with the 1-130 that was filed on his behalf by his father and approved
in 2002, and in conjunction with a waiver (Form 1-601) under section 212(h) of the Act, 8 U.S.C.
§ l 182(h).

In his June 27, 2017, decision, the Immigration Judge concluded that grandfathering in this
instance is precluded by 8 C.F.R. § 204.2(h)(2) (U at 2-3). The respondent disagrees.

The Legal Immigration and Family Equity Act (LIFE Act)1 temporarily reinstated relief under
section 245(i) of the Immigration and Nationality Act to certain aliens who were ineligible to adjust
status because they were barred under section 245(a) or section 245(c) of the Act. The LIFE Act
Amendments of 2000 extended the sunset provisions for aliens eligible to apply for adjustment of
status under section 245(i) of the Act. In order to be grandfathered under the LIFE Act, the
respondent must: (1) be a beneficiary of an immigrant visa petition that was filed between
January 15, 1998, and April 30, 2001; (2) have been present in the United States on December 21,
2000; (3) currently be the beneficiary of a qualifying immigrant visa petition (either the original
Form 1-130 or 1-140, through which he was grandfathered, or through a subsequently filed
immigrant petition); (4) have a visa immediately available to him; and (5) be admissible to the
United States. In addition, the respondent must establish that adjustment of status is warranted in

1 Pub. L. No. 106-553, as amended by section 1503 of the Life Act Amendments of 2000, Pub. L.
No. l 06-554 (effective December 21, 2000).

Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
f.
1' ;-

A076 �7 552

the exercise of discretion. See sections 245(i)(2)(A)-(B) of the Act; 8 C.F.R. § 1245.10; Matter of
Ilic, 25 l&N Dec. 717, 719 (BIA 2012).

The respondent appears to fall within this group of eligible aliens. The record reflects that the
respondent's father filed a visa petition on his behalf on March 22, 1999. The respondent was
brought into the United States by his parents in 1989, when he was a child, and he did not leave

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the United States until 2010, pursuant to a grant of voluntary departure. The respondent is
currently the beneficiary of an approved visa petition, filed on his behalf by his United States
citizen wife. Moreover, we agree with the respondent that he can recapture the earlier date because
8 C.F.R. § 204.2(h)(2) only applies to visa petitions where both the petitioner and the beneficiary
are the same. In this case, the petitioners are not the same. The earlier petitioner was the
respondent's father; the current petitioner is the respondent's wife.

In his June 9, 2017, decision, the Immigration Judge also said that the respondent cannot apply
for adjustment of status because aliens whose removal orders have been reinstated are ineligible
for adjustment of status (IJ at 2). See section 241(a)(5) of the Act, 8 U.S.C. § 123 l(a)(5). However,
in this case, the Department of Homeland Security (OHS) did not reinstate the respondent's prior
removal order with the filing of a Notice of Referral to Immigration Judge (Form 1-863), placing
him in withholding proceedings pursuant to section 241(a)(5) of the Act. Instead, the OHS filed a
Notice to Appear (Form 1-863), placing him in removal proceedings (Exh. 1).

Finally, in his June 9, 2017, decision, the Immigration Judge said that the respondent cannot
apply for adjustment of status because there is a 10-year bar to adjustment of status if an alien fails
to voluntarily depart the United States within the time period specified (IJ at 2). See section 240B(d)
of the Act, 8 U.S.C. § 1229c(d). However, in this case, it is undisputed that the respondent
complied with the voluntary departure order, but thereafter illegally re-entered the United States.
Consequently, this 10-year bar does not apply.

Consequently, we find it necessary to remand the record for the Immigration Judge to further
consider the respondent's eligibility for adjustment of status.2

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and entry of a new decision.

2 Because of the disposition of this issue, we find it unnecessary to address the other issues raised
on appeal.

Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
 (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LIVINGSTON, TEXAS

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File: A076-837-552 June 27, 2017

In the Matter of

)
OMAR URBIETA-GUERRERO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an

alien present in the United States without admission or parole;
Section 212(a)(2)(A)(i)(I), alien who has been convicted of a crime
involving moral turpitude.

APPLICATIONS: Adjustment of status pursuant to Immigration and Nationality Act

Section 245(i); voluntary departure pursuant to INA Section
240B(a).

ON BEHALF OF RESPONDENT: Noel Suniga, Esquire

ON BEHALF OF OHS: James Devine, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

PROCEDURAL HISTORY AND REMOVABILITY

The respondent is a 31-year-old male, native and citizen of Mexico. On

September 13th, 2016, the Department of Homeland Security, (OHS), issued and

served on the respondent a Notice to Appear charging him with inadmissibility to and

removability from the United States pursuant to INA Section 212(a)(6)(A)(i), an alien
present in the United States without being admitted or paroled, and Section

212(a)(2)(A)(i)(I), an alien who has been convicted of a crime involving moral turpitude.

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The respondent through counsel on November 3rd, 2016, admitted the

truth of the factual allegations on the Notice to Appear and conceded removability as

charged. I conclude that the record establishes by clear and convincing and

unequivocal evidence that the respondent entered the United States without being

admitted or paroled after inspection by an immigration officer and that he is an alien

present in the United States who has been convicted of a crime involving moral

turpitude. The Notice to Appear is admitted as Exhibit 1. I find, therefore, that the

respondent is inadmissible to and removable from the United States as charged in

Exhibit 1, the Notice to Appear.

The respondent declined to designate a country of removal. This court

designated Mexico as the country of removal.

During the course of the proceeding, the respondent indicated that he

would like to apply for adjustment of status under Immigration and Nationality Act

Section 245(i). The prior immigration judge set a briefing schedule for the parties to

submit briefs addressing eligibility for adjustment under Section 245(i).

On June 27th, 2016, this court found that the respondent has not

established statutory eligibility for adjustment of status under 245(i) of the Act. As

acknowledged by the respondent's counsel, the respondent's eligibility for 245(i)

adjustment hinges on being able to recapture the prior visa that was approved in the

1990s and upon which the respondent previously adjusted his status to lawful,

permanent residence status in 2002. The respondent has not presented any legal

authority for his theory of the case and his ability to recapture that prior visa.

The primary issue before this court is whether the provisions of 8 C.F.R.

A076-837-552 2 June 27, 2017

§204.2(h)(2) allow the respondent to adjust his status basing his application on an

approved visa petition that he has already used to adjust his status to that of lawful,

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permanent resident status. In reviewing the applicable regulations, I find that the

respondent may not base his eligibility for adjustment of status on his original approved

visa petition which was already used to adjust his status in 2002. The respondent also

orally moved the court to terminate proceedings to allow the respondent to pursue

adjustment of status. The Department of Homeland Security opposed the motion, and

this court denied the motion to terminate finding insufficient cause for terminating

proceedings.

The respondent has also applied for preconclusion voluntary departure

under Section 240B(a) of the Immigration and Nationality Act.

FACTS IN EVIDENCE

The following evidence was presented to the court in this case. Exhibit 1

is the Notice to Appear. Exhibit 2 is the form 1-213, record of deportable, inadmissible

alien. Exhibit 3 is a conviction record relating to a felony charge of forgery, commercial

instrument, with a date of preparation of October 2nd, 2002. Exhibit 4 is a conviction

record relating to the same forgery of a commercial instrument, reflecting that the prior

probation was revoked. Exhibit 5 is respondent's application for asylum and for

withholding of removal, however, that application was withdrawn by the respondent on

May 10th, 2017. Nonetheless, that application which was withdrawn will remain marked

as Exhibit Number 5. Exhibit Number 6 is documents in support of application for

adjustment of status under Section 245(i) consisting of Tabs A through F, Pages 1

through 45. Exhibit 7 is the notice of approval of relative immigrant visa petition

reflecting a classification of IR-1 with a date of approval, February 8th, 2017. Exhibit 8

is form 1-485, application to register permanent residence or adjust status. Exhibit 9 is

A076-B37-552 3 June 27, 2017

form 1-601, application for waiver of grounds of inadmissibility. Exhibit 10, form 1-212,

application for permission to reapply for admission into the United States after

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depo.rtation or removal. Exhibit 11 is amended application for ·adjustment of status

under Section 245(i) with supporting documents consisting of Pages 1 through 209.

Exhibit 12, additional supporting documents for adjustment of status under Section

245(i) application consisting of Pages 210 to 212 according to the table of contents.

Exhibit 13, additional documents or affidavit of support in adjustment of status of

permanent resident consisting of Tabs K, L, and M, Pages 210 to 220 according to the

table of contents. Exhibit 14, the Department of Homeland Security opposition to

respondent's application for relief under INA Section 245(i). That opposition brief will be

Exhibit 14. And Exhibit 15 will be trial brief in support of application for relief under INA

Section 245(i) submitted by the respondent through counsel. That brief will be Exhibit

15.

STATEMENT OF THE LAW

VOLUNTARY DEPARTURE:

In order to be eligible for preconclusion voluntary departure under INA

Section 240B(a), the alien must: (1) make a request for voluntary departure prior to or at

the master hearing at which the case is initially calendared for a merits hearing; (2)

make no additional requests for relief (where if such requests have been made, such

requests are withdrawn prior to any grant of voluntary departure); (3) concede

removability; (4) waive appeal of all issues; and (5) not having been convicted of a

crime described in INA Section 101(a)(43) and is not deportable under INA Section

237(a)(4). In addition, the alien must also convince the court that he is entitled to such

relief as a matter of discretion.

The sole issue before this court at this time is whether the respondent has

A076-837-552 4 June 27, 2017

established that he is deserving of voluntary departure as a matter of discretion. I find

that the evidence in the record does not establish that he warrants a favorable exercise

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of discretion by having this court grant voluntary departure. In support of that finding,

this court considered the positive equities as well as the negative factors in this case.

Among the positive equities considered is that the respondent has been in the United

States for quite some time. He is married to a United States citizen wife and has been

since 2013. He has a legal, permanent resident mother in the United States and a

legal, permanent resident father in the United States. His mother suffers from diabetes,

and his father is disabled due to failed sight. The respondent also has three United

States citizen children. Considered against those positive equities are the negative

factors to include his 2002 state jail felony conviction for forgery of a commercial

instrument for which he was sentenced to three years probation. Prior to completing his

probation successfully, he was, in fact, found in violation of probation, and his probation

was revoked in 2005. He was then required to spend six months in jail. According to

the respondent, his probation was violated because he did not pay required fees, he did

not complete required community service, and he did not attend GED classes that he

was required to attend. And the respondent also admitted that while he was in prison in

2005 he became a member of a gang, and he acknowledged that he was a member of

that gang, as he stated, for four months. And he has a Tango Blast gang member

tattoo on his body. The respondent illegally entered the United States in 1989. He

adjusted his status to legal, permanent resident in 2002. In 2010 he was placed in

immigration proceedings, and he was granted voluntary departure. The court takes this

as a grant of a second chance. The respondent testified that he departed the United

States voluntarily as required within the time frame required but that he reentered the

United States illegally in 2011, and he was thereafter apprehended by ICE in 2016.

A076-837-552 5 June 27, 2017

Considering these negative factors, the court in weighing them against the positive

equities in this case finds that the negative factors outweigh the positive equities. Of

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particular concern to this court is the fact that the respondent was previously in

immigration proceedings, and he was granted favorable discretion by way of voluntary

departure. And yet the respondent is once again coming before this court asking for yet

another chance when he was previously given a chance. Considering the totality of the

circumstances, specifically his prior immigration history, his prior gang involvement, his

prior state jail felony, to include not only the initial conviction in 2002, but the resulting

and subsequent probation violation stemming from the respondent's inability to comply

with his requirements of conviction as well as consideration of his prior grant of

voluntary departure. This court finds that the negative factors outweigh the positive

factors such that the respondent has not established that he is deserving or merits

voluntary departure as a matter of discretion.

CONCLUSION

I find that the respondent is statutorily ineligible for adjustment of status

under Section 245(i) of the Act. And while I find that the respondent may appear

statutorily eligible for preconclusion voluntary departure, I do not find that he warrants

such relief as a matter of discretion. Considering the evidentiary record, I find that the

negative factors do outweigh the positive equities in this case.

Based on the foregoing, the following orders will be entered:

ORDERS

It is ordered that the respondent's application for adjustment of status

under INA Section 245(i) be pretermitted.

It is ordered that the respondent's application for preconclusion voluntary

departure under INA Section 240B(a) be denied.

A076-837-552 6 June 27, 2017

 It is further ordered that the respondent be removed from the United

States to Mexico, his country of citizenship and nativity.

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Date: June 27th, 2017

JUSTIN F. ADAMS
U.S. Immigration Judge

A076-837-552 7 June 27, 2017