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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church. Virgm1a 22041

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Villalpando, Brenda M. OHS/ICE Office of Chief Counsel - ELP
Janos, Zavala & Villalpando,LC 11541 Montana Ave , Suite 0
9434 Viscount Blvd. El Paso, TX 79936
Ste.102
El Paso, TX 79925

Name: G , I M A -772

Date of this notice: 7/28/2017

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

For more unpublished BIA decisions, visit


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Cite as: I-M-G-, AXXX XXX 772 (BIA July 28, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: - El Paso, TX Date:

In re: I M G
JUL 2 8 2017

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IN REMOVAL PROCEEDINGS

CERTIFICATION1

ON BEHALF OF RESPONDENT: Brenda M. Villalpando, Esquire

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

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).

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We disagree with the Immigration Judge's conclusion that the respondent did not meet his
burden to demonstrate that he was inspected and admitted to the United States in October 2004.
See section 240(c)(2)(B) of the Act, 8 U.S.C. 1229a(c)(2)(B). The Immigration Judge did not
make an explicit adverse credibility finding, but refused to accept the respondent's testimony
regarding his manner of entry (U at 2-3; Tr. at 43-44). This determination, however, is based in
part on the clearly erroneous factual finding that the respondent's border crossing card had expired
in 2001 (U at 2-3). The respondent testified that his border crossing card expired in 2010, not 2001
(Tr. at 34). Even though he is no longer in possession of his border crossing card, the respondent
testified and submitted evidence showing that he had last applied for, and been granted, a border
crossing card in 1999 (Tr. at 35-36; Exh. 4, Tb 3). Moreover, in reaching his decision, the
Immigration Judge merely speculates that because the respondent had a history of following the
proper procedure for entering the United States and obtaining a Form 1-94, his testimony regarding
the circumstances of hisOctober 2004 entry was untrue (U at 3; Tr. at 43).

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.

ORDER: The appeal is sustained.

FURTHERORDER: The record is remanded to the Immigration Judge for further


proceedings consistent with this decision.

2
Cite as: I-M-G-, AXXX XXX 772 (BIA July 28, 2017)
,

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS

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File: A -772 January 22, 2015

In the Matter of

)
I M G ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

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


without inspection.

APPLICATIONS: Form EOIR-42B, application for cancellation of removal by a non


resident alien.

ON BEHALF OF RESPONDENT: BRENDA VILLALPANDO


6100 Uptown Boulevard, Suite 530
Albuquerque, New Mexico 87110

ON BEHALF OF OHS: BARBARA CIGARROA


1545 Hawkins Boulevard
El Paso, Texas 79925

ORAL DECISION OF THE IMMIGRATION JUDGE

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

testimony from the respondent at that time.

The respondent testified during the hearing. He claims to have first


(
' .

entered this country in 1993 with a visitor's visa. According to the respondent, he

remained in the country for approximately one month.

Respondent described a second visit to the United States in September of

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1998. At that time, he entered the country with his wife. Respondent claims to have

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.

Respondent described a third visit to this country in September of 1999.

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,

he returned some eight days later in early October of 2004-

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

Albuquerque, New Mexico.

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

in Albuquerque, New Mexico.

Although the respondent insists that his departure was for a period of only

A -772 2 January 22, 2015


. . .

eight days, he offered absolutely no corroboration of this claim.

At an earlier master calendar hearing, the respondent had admitted factual

allegations 1 through 7 of the Notice to Appear. The Government withdrew their charge

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under Section 212(a)(9)(C)(i)(I) of the Act. The respondent denied the charge of entry

without inspection under Section 212(a)(6)(A)(i) of the Act.

The Court proceeded to schedule the case for contested charges. As

noted, on April 9, 2014 the respondent appeared before the Court for a hearing on

contested charges. At that time, Government Counsel withdrew allegations 3 through 8

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.

Under 8 C.F.R. Section 1240.S(c), the Government need only establish

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

this country pursuant to a prior admission.

The Court refused to accept the respondent's testimony about entering

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

evidence. Woodby v. INS. 385 U.S. 276 (1966).

A -772 3 January 22, 2015


The respondent subsequently filed a 428 application with the Court on

September 22, 2014 (Exhibit 5). The Court scheduled the case for today in order to

conduct an individual hearing on the application. Prior to considering testimony in

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today's hearing, the Court admitted or considered the following exhibits.

Exhibit 1, the original Notice to Appear with pleadings before the Court.

Exhibit 1A, Government's amended pleadings with the Court's

determination to sustain the charge of removal.

Exhibit 2, Government's exhibits consisting of Form 1-213, as well as a

denial notice for an extension of the respondent's arrival/departure document.

Exhibit 3, de.nial letter on respondent's attempt to adjust status to that of a

permanent resident.

Exhibit 4, respondent's brief in support of his claim to a lawful admission.

Exhibit 5, respondent's sworn 428 application.

Exhibit 6, respondent's group exhibit containing various tabs.

Exhibit 7, respondent's group exhibit containing birth certificates for

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

recently became a lawful permanent resident.

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

three of the couple's children also reside in Albuquerque, New Mexico.

The respondent admitted a criminal record in the State of New Mexico. In

A -772 4 January 22, 2015


March of 2004, the respondent was convicted in state court for patronizing a prostitute.

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

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influence. According to the respondent, he was drunk sitting in a parked car in

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

to pay a fine and other classes of probationary supervision.

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

cysts, and blindness in one eye due to a detached retina.

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

In order to qualify for cancellation of removal under Section 240A(b)(1) of

the Immigration and Nationality Act, an applicant must establish:

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;

3) The applicant has not been convicted of an offense under Section

212(a)(2), 237(a)(2) or 237(a)(3); and

A -772 5 January 22, 2015


4) The respondent establishes that his removal would result in an

exceptional and extremely unusual hardship to the applicant's spouse, parent, or

child, who is a citizen of the United States or an alien lawfully admitted for permanent

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residents.

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

was served upon him;

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;

3) The applicant is not deportable under Section 237(a)(2)(A)(ii); and

4) The applicant establishes by clear and convincing evidence that he or

she has the means to depart the United States and intends to do so.

APPLICATION OF THE LAW TO THE FACTS

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

is served with a Notice to Appear.

A -772 6 January 22, 2015


. . .

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.

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As earlier noted, the respondent claims to have been lawfully admitted in

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

offered to the Court.

The respondent claims to have traveled from Southern California to

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.

Exhibits contained within Exhibit 6 are revealing with respect to the

respondent's claim of continuous physical presence. In the section marked letters of

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

continuous physical presence.

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

a period of approximately 10 months (Exhibit 6, pages 9 through 10). The respondent

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

A -772 7 January 22, 2015


(

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

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September of 2007 when they were submitted to the IRS. Such a delay in tax filing

indicates that the respondent may have been out of the country and unable to file his

taxes during the filing period (Exhibit 6, pages 98 and 100).

Taken as a whole, and after having given the exhibits careful

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

respondent's application must be denied for this reason.

If the Court is wrong with respect to its determination as to physical

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

of good moral character may be based upon other evidence or acts.

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

A -772 8 January 22, 2015


i
\

'
. .

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,

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page 107). In 2011, the respondent filed as being single during the time that his wife

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.

The respondent's criminal history is also reflective of his good moral

character. On March 13 of 2004, the respondent was convicted for the offense of

patronizing prostitutes. According to the respondent, he agreed to a sexual encounter

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

placed on one-year probation and ordered to participate in classes and other

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

establish the required good moral character.

If the Court's determination with respect to the issues of good moral

character and physical presence are incorrect, the respondent must nevertheless

A -772 9 January 22, 2015


establish that his removal would create an exceptional and extremely unusual hardship

for his qualifying relatives. In this case, the only qualifying relative has been identified

as the respondent's wife.

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The Board has determined that in order to establish that hardship in

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

residents should be available only in compelling cases.

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

the respondent in order to pay their living expenses.

When asked to describe the hardship to herself, she placed great

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

A -772 10 January 22, 2015


.. .

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

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her home care. While this is undestandable, it appears that the couple's children are

available to assist with those duties.

Taken as a whole, the Court concludes that if the requirements of physical

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

statutes were satisfied.

As earlier noted, an applicant for voluntary departure must establish by

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.

Consequently, had voluntary departure been requested, the Court would

deny said request based upon the state of the record.

ORDERS

The respondent's application for cancellation of removal pursuant to

Section 240A(b)(1) of the Immigration and Nationality Act is hereby DENIED.

The issue of voluntary departure was not presented to the Court.

A -772 11 January 22, 2015


. . '

The respondent is ordered removed to Mexico upon the charge contained

in the Notice to Appear and amended pleadings.

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THOMAS C. ROEPKE
S-d;..J 16 tJ/6 Immigration Judge
._ i.1 Pa:O, exa

A -772 12 January 22, 2015