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Name: G , I M A -772
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
J
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Greer, Anne J.
Userteam: Docket
Cite as: I-M-G-, AXXX XXX 772 (BIA July 28, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
In re: I M G
JUL 2 8 2017
CERTIFICATION1
The respondent appeals from the Immigration Judge's September 15, 2016, decision finding
him removable as charged pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality
Act, 8 U.S.C. 1182(a)(6)(A)(i), and denying his application for cancellation of removal under
section 240A(b)(l) of the Act, 8 U.S.C. 122b(b)(l).2 The DHS has not responded to the appeal.
The appeal will be sustained, and the record will be remanded.
We review findings of fact for clear error, including any credibility findings. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter ofJ-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter o/S-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
With regard to the charge of removability, the respondent, a native and citizen of Mexico,
contends that he was admitted into the United States in October 2004 when he was waved through
the port of entry after presenting his valid border crossing card (Resp.'s Brief at 8-13; Exh. 4; Tr. at
25-29, 38-39). See Matter o/Quilantan, 25 l&N Dec. 285 (BIA 2010). The respondent testified
that he has entered the United States on four occasions using a visitor's isa and border crossing
card (IJ at 2; Tr. at 23-28). He first entered in the United States in 1993 with a visitor's visa,
staying for approximately 1 month (U at 2; Tr. at 23-24). In September 1998 and September 1999,
the respondent entered the United States using his border crossing card, and, on both occasions,
he was issued a Form 1-94 (IJ at 2; Tr. at 24-25; Exh. 4, Tabs 6-7).
1 To resolve any issues regarding timeliness, we have taken jurisdiction of the appeal by
certification. See 8 C.F.R. 1003.l(c).
2 The Department of Homeland Security ("DHS") initiated removal proceedings against the
respondent following the denial of his adjustment of status application (Exhs. 1-3). After the
Immigration Judge sustained the section 212(a)(6)(A)(i) charge of removability, the respondent
elected to apply for cancellation of removal instead of renewing his adjustment of status
application (Tr. at 43-44). See section 245(a) of the Act, 8 U.S.C. 1255(a) (requiring an applicant
for adjustment of status to have been "inspected and admitted or paroled into the United States").
Cite as: I-M-G-, AXXX XXX 772 (BIA July 28, 2017)
772
As to his last entry, the respondent testified that he departed the United States in September
2004 to attend his mother's funeral, returning to the United States approximately 8 days later
(U at 2; Tr. at 25-26). At the port of entry, he presented his border crossing card to the border
patrol agent who merely looked at it and allowed the respondent to enter (U at 2; Tr. at 27-29).
Despite planning to travel to his home in Albuquerque, the respondent was not issued a Form 1-94
(U at 2; Tr. at 35). The respondent subsequently lost his border crossing card (U at 2; Tr. at 30).
In addition, we note that the respondent has consistently represented that he last entered the
United States with his border crossing card inOctober 2004 (Exh. 3; Tr. at 26-29, 35, 61-62). In
light of the foregoing, we conclude that the respondent's unrebutted and credible testimony is
sufficient for him to meet his burden of proof in demonstrating that he was inspected and admitted,
and thus, not inadmissible as charged under section 212(a)(6)(A)(i) of the Act. See Matter of
Quilantan, 25 l&N Dec. at 293 (concluding that the alien had carried her burden of proof to
establish that she was admitted by being waved through at a port of entry through her credible
testimony regarding the undisputed facts surrounding the admission even though she did not
present any documentary corroboration).
Given the procedural posture of this matter, we will remand the record to the Immigration
Judge to allow the DHS an opportunity to lodge any charge under section 237 of the Act, 8 U.S.C.
1227, that the agency may wish to pursue. Should the Immigration Judge sustain a charge of
removability against the respondent, the respondent should then have an opportunity to pursue any
and all forms of relief for which he may be eligible and choose to pursue. Because removability
has not yet been established, we decline to address the respondent's argument regarding the
Immigration Judge's denial of cancellation of removal as that application is not ripe for review.
Accordingly, the following orders shall be entered.
2
Cite as: I-M-G-, AXXX XXX 772 (BIA July 28, 2017)
,
In the Matter of
)
I M G ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
The case was heard by the Court on two different occasions. On April 9,
2014, the Court considered the matter of contested charges. The Court heard
entered this country in 1993 with a visitor's visa. According to the respondent, he
again utilized his border crossing card. On both occasions, the respondent indicated
that he was issued a Form 1-94 enabling him to travel from the border to Albuquerque,
New Mexico.
According to the respondent, he remained in the country until September of 2004 when
he departed to Mexico to attend the funeral of his mother. According to the respondent,
The respondent admitted that his border crossing card had expired
sometime in the year 2001. Nevertheless, he insisted that he utilized the card to re
enter the country in October of 2004. According to the respondent, the inspector in San
Ysidro, California simply looked at the visa and allowed him to enter. According to the
respondent, he was not issued an 1-94 although his intention was to travel to
Despite not having a Form 1-94, the respondent insists that he traveled by
bus from Southern California to Albuquerque, New Mexico without passing through an
Immigration checkpoint.
According to the respondent, he has not left the country since his re-entry
in October of 2004. When asked about the Form 1-94, the respondent indicated that the
laser visa simply blew away in the wind one day after he had commenced his residence
Although the respondent insists that his departure was for a period of only
allegations 1 through 7 of the Notice to Appear. The Government withdrew their charge
noted, on April 9, 2014 the respondent appeared before the Court for a hearing on
and replaced them with amended allegations 3 and 4 (Exhibit 1A). The Court
proceeded to hear testimony as previously noted. At the time of the hearing, the Court
pointed out that the respondent had offered no corroborating evidence for his claim of a
brief departure after being admitted at the port of entry at San Ysidro, California. The
respondent had previously admitted factual allegations 1 and 2 which involve alienage.
After hearing all of the testimony, the Court pointed out that the question of a lawful
admission in the year 2004 was still not resolved with credible evidence.
the alienage of the respondent. Once alienage has been established, the respondent
must then demonstrate by clear and convincing evidence that he or she is lawfully in
with an expired laser visa. Since a lawful admission had not been established by clear
and convincing evidence, the Court sustained the charge of removal under Section
212(a)(6)(A)(i) of the Act (Exhibits 1 and 1A). Based upon all of the foregoing, the Court
is satisfied that the issue of removability has been established by clear and convincing
September 22, 2014 (Exhibit 5). The Court scheduled the case for today in order to
Exhibit 1, the original Notice to Appear with pleadings before the Court.
permanent resident.
respondent's grandchildren.
During today's hearing, the Court heard testimony from the respondent
and his wife. The evidence reflects that the respondent is presently 58 years old and
his wife is 54 years old. The couple lives together in Albuquerque, New Mexico. The
respondent and his wife have been married for almost 40 years. The respondent's wife
The respondent and his wife are the parents of six children. All of the
children are over the age of 21. While the testimony was somewhat unclear, two or
He pied guilty to the offense and apparently served one day in jail.
In December of 2004, the respondent was arrested for driving under the
possession of the keys. He insists that he was nevertheless convicted for driving under
the influence. The respondent was placed on probation for one year and was ordered
The respondent's wife also testified during the hearing. She has a number
of health conditions to include high blood pressure, glaucoma, breast cysts, ovarian
Despite her health issues, Mrs. Hernandez indicates that she works five
hours per day cleaning the lobby and dining area of a McDonald's restaurant. Due to
her eyesight, Mrs. Hernandez indicated that she does not drive and relies upon the
respondent to drive her. She also indicated that the respondent assists her with
cooking and cleaning in their home due to the problems with her eyesight.
APPLICABLE LAW
1 ) The applicant has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding the date of the
application;
2) The applicant has been a person of good moral character during such
period;
child, who is a citizen of the United States or an alien lawfully admitted for permanent
Under Section 240B(b) of the Immigration and Nationality Act, the Court
may permit an applicant to voluntarily depart the country at his own expense in lieu of
removal if:
1) The applicant has been physically present in the United States for a
period of at least one year immediately preceding the date that the Notice to Appear
2) The applicant is and has been a person of good moral character for at
least five years immediately preceding his application for voluntary departure;
she has the means to depart the United States and intends to do so.
During oral argument, the Government suggested that the respondent has
failed to establish the statutory elements of physical presence, good moral character,
and hardship. The Government did not dispute the fact that the respondent does not
have a disqualifying criminal conviction. The Court will consider each of these issues.
Section 240A(b)(1 )(A) requires that the applicant had been physically
present in the United States for 10 years immediately preceding the date of the
application. The statute must be read in conjunction with Section 240A(d)(1 )(A) of the
Act. That section provides that the period of physical presence ends when the applicant
The evidence in this case reflects that the respondent was placed in
proceedings and served with the Notice to Appear on May 24, 2011 (Exhibit 1).
Therefore, the Court must concern itself with the timeframe prior to May 24 of 2011.
the year 1999. The respondent claims to have left the country for approximately eight
days in the fall of 2004. As noted, no proof of his readmission eight days later was
Albuquerque, New Mexico without the benefit of an 1-94 permit. He also testified that
his laser visa blew away in the wind shortly thereafter, never to be seen again.
recommendation, none of the individuals who submitted letters claim , that they have
known the respondent since 1999. None of the letters make any claim with respect to
The tab marked physical presence also reflects a gap covering the years
2004 and 2005. Items of evidence go from November of 2003 to September of 2004 or
has included an insurance declaration which covers only one month from September of
2004 to January of 2005 (Exhibit 6, page 11). The exhibits purporting to show physical
presence then jump to September and October of the year 2006 (Exhibit 6, pages 12
and 15 through 16). After those exhibits, the chronology jumps to the year 2007 (Exhibit
6, page 17). After that, the exhibits follow a distinct pattern up to the present time.
The exhibits reflect a lack of presence during the years 2004 and 2005.
These two years fall within the required 10-year period of physical presence. The Court
notes that the respondent admits leaving the country during the year 2004. A letter from
the respondent's tax service also substantiates a lack of physical presence. The letters
reflect that the respondent's 2004 and 2005 tax returns were not prepared until
indicates that the respondent may have been out of the country and unable to file his
consideration, the Court finds that the respondent has failed to establish continuous
physical presence for the full 10-year period of time. Therefore, the Court finds that the
presence, the statute also requires that the applicant has been a person of good moral
character during the 10 years immediately preceding the date of the application. Good
moral character is defined in Section 101 (f) of the Act. However, the acts or violations
listed in the statute are not exclusive. A determination that an applicant is not a person
In this case, the respondent readily admits that he worked for a number of
years with a Social Security number that he claims to have made up. The Court takes
administrative notice that the use of a false Social Security number or a number
assigned to someone else is a felony offense under Title 42 of the United States Code
Section 408. In this case, the respondent used the false Social Security number while
filing his Federal tax returns with the taxpayer identification number (ITIN) which he
received from the IRS (Exhibit 6, tax returns, pages 90 through 118).
A review of the tax returns reflects that the respondent filed the majority of
his tax returns under the status of single head of household. The respondent
'
. .
nevertheless insists that he has been married since 1976. He did not indicate being
separated from his wife at any time. Besides using the ITIN number, his 2009 tax return
was filed using the Social Security number that he claims to have fabricated (Exhibit 6,
worked and had income (Exhibit 6, page 112). Likewise, in 2013 the respondent again
filed his Federal tax return as being single and head of a household. The respondent
did so despite the fact that his wife worked and did not report her earnings to the IRS.
In fact, a review of the tax returns reflects that by filing as single head of household or
single, the earnings of Mrs. Hernandez were never reported to the IRS. The respondent
assured the Court that his wife never filed under the status of married, filing separately.
character. On March 13 of 2004, the respondent was convicted for the offense of
with a known prosti.tute. Apparently, the meeting was observed by police officers who
subsequently arrested the respondent along with the prostitute. Later that same year,
the respondent was convicted of driving under the influence. The respondent was
probationary requirements.
Taken as a whole, the Court has determined that the respondent has
failed to establish his good moral character for the 10-year period required by the
statute. Therefore, if the Court's analysis with respect to the issue of physical presence
is incorrect, the application must still be denied because the respondent has failed to
character and physical presence are incorrect, the respondent must nevertheless
for his qualifying relatives. In this case, the only qualifying relative has been identified
question, an applicant must demonstrate that a qualifying relative would suffer hardship
that is substantially different from or beyond that which would ordinarily be expected to
result from the applicant's deportation. The hardship must clearly go beyond that which
was required in suspension of deportation cases under prior law. Hardship factors
which relate to the applicant can be considered only insofar as they might create a
hardship to a qualifying relative. Matter of Recinas, 23 l&N Dec. 467 (BIA 2002); Matt_er
of Andazo/a, 23 l&N Dec. 319 (BIA 2002); Matter of Monreal, 23 l&N Dec. 56 (BIA
2001). In those decisions, the Board noted that cancellation for non-permanent
In this case, the facts established that the respondent and his wife live in a
mobile home which belongs to one of their children. Despite her health issues, Mrs.
Hernandez works five hours per day at a semi-strenuous job, cleaning the lobby and
dining area of a McDonald's restaurant. She indicated that she shares her income with
emphasis on the fact that her husband drives her to her medical appointments.
Nevertheless, she indicated that she visits the doctor every three months in order to
monitor her blood pressure. She visits the eye doctor annually in order to monitor her
glaucoma.
Mrs. Hernandez also indicated that the respondent helps her with cooking
and the household chores which are more difficult due to her eyesight. When asked by
Government Counsel, Mrs. Hernandez indicated that her children in Albuquerque are
able to help but they "have their own lives." From her testimony, the Court concludes
that Mrs. Hernandez would prefer to have the respondent provide her transportation and
presence and good moral character have been established, the application must still be
denied because the evidence fails to establish the hardship required by the statute. For
all of said reasons, the respondent's application for cancellation of removal must be
denied.
Throughout the hearing, neither the respondent nor his counsel requested
voluntary departure. The Court would nevertheless consider voluntary departure if the
clear and convincing evidence that they have the means to depart this country and the
intention to do so. Throughout two hearings before this Court, the respondent never
indicated or expressed either the means or the intention to depart this country
voluntarily.
ORDERS