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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, Virginia 22041

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Roman, Laura Jane OHS/ICE Office of Chief Counsel - ORL
Roman Law Firm, LLC 3535 Lawton Road, Suite 100
14151 Southern Red Maple Drive Orlando, FL 32803
Orlando, FL 32828

Name: R -T ,J A -885

Date of this notice: 8/18/2017

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

RussIH
Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: J-R-T-, AXXX XXX 885 (BIA Aug. 18, 2017)
U.S. Department of Justice Decision of the Board oflmrnigration Appeals
1Exec4tive Office for Immigration Review

Falls Church, Virginia 22041

File: 885 -Orlando, FL Date:

In re: J R -T
AUG 1 8 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Laura Jane Roman, Esquire

ON BEHALF OF DHS: Amanda Ayers


Assistant Chief Counsel

APPLICATION: Termination; waiver pursuant to form.er section 212(c)

The respondent, a native and citizen of Mexico and a lawful permanent resident of the United
States, appeals from the Immigration Judge's February 3, 2016, decision denying his motion to
terminate proceedings and application for a waiver under former section 212(c) of the Immigration
and Nationality Act, 8 U.S.C. l 182(c) (1994). The Department of Homeland Security ("DHS")
has filed a brief in opposition to the appeal. The appeal will be dismissed in part and sustained in
part, and the record will be remanded for any necessary background and security investigations.

We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F .R.
1003.l(d)(3)(i)-(ii).

The respondent argues on appeal that the Immigration Judge erred in denying his request to
terminate removal proceedings to allow him the opportunity to pursue naturalization. We,
however, agree with the Immigration Judge's denial of the respondent's motion to terminate (l.J. at
7-8). In Matter ofAcosta Hidalgo, 24 l&N Dec. 103 (BIA 2007), the Board found that proceedings
may only be terminated pursuant to 8 C.F.R. 1239.2(t) when the DHS has presented an
affirmative communication attesting to an alien's prima facie eligibility for naturalization. Id at
106. In the present case, the DHS expressly declined to make such a communication and opposed
the motion to terminate (DHS Opposition to the Resp. Motion to Terminate).

Although the respondent argues on appeal that our decision in Matter of Acosta Hidalgo is
wrongly decided (Resp. Brief at 10-13), we are obligated to apply it until and unless it is modified
or overruled. See Matter of E-L-H-, 23 l&N Dec. 814, 817 (BIA 2005). Moreover, the federal
circuit courts that have considered the issue have upheld the Board's interpretation of section
1239.2(f) in Matter ofAcosta Hidalgo. See Shewchun v. Holder, 658 F.3d 557, 562-65 (6th Cir.
2011); Barnes v. Holder, 625 F.3d 801, 805-08 (4th Cir. 2010); Ogunfuye v. Holder, 610 F.3d 303,
307-08 (5th Cir. 2010); Zegrean v. Att'y Gen. of United States, 602 F.3d 273, 274-75 (3d Cir.
2010); Perriello v. Napolitano, 519 F.3d 135, 142 (2d Cir. 2009); Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 933-34 (9th Cir. 2007); see also Castillo v. U.S. Att'y Gen., 622 F. App'x
793, 797-800 (11th Cir. 2015) (unpublished). We therefore affirm the denial of the respondent's
motion to terminate.
Cite as: J-R-T-, AXXX XXX 885 (BIA Aug. 18, 2017)
885

With respect to the respondent's application for a waiver under fonner section 212(c) of the
Act, there is no dispute that the respondent is statutorily eligible to apply for such relief (l.J. at 9).
Therefore, the sole issue on appeal is whether he merits this fonn of relief in the exercise of
discretion.

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When this Board is assessing whether granting section 212(c) relief is in the best interests of
the United States, we "must balance the adverse factors evidencing an alien's undesirability as a
permanent resident with the social and humane considerations presented in his behalf." Matter of
Marin, 16 l&N Dec. 581, 584 (BIA 1978). An applicant's favorable considerations include such
factors as family ties within the United States, residence of long duration (particularly when the
inception of residence occurred at a young age), evidence of hardship to the respondent and his
family if deportation occurs, service in the United States' armed forces, a history of employment,
the existence of property or business ties, evidence of value and service to the community, proof
of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's
good character. See id. at 584-85. Among the factors deemed adverse to an applicant are the
nature and underlying circumstances of the grounds of removal that are at issue, 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 nation. See id. at
584; see generally Matter ofEdwards, 20 l&N Dec. 191, 195 (BIA 1990); Matter ofBuscemi, 19
l&N Dec. 628, 634 (BIA 1988).

While this is a close case, we find that the respondent is deserving of relief as a matter of
discretion. The respondent has a number of substantial equities in his favor, including his lengthy
residence in the United States beginning in 1984, when he was a 17 years old (I.J. at 4, 9; Tr. at
72). In addition, the respondent has been a lawful pennanent resident for over 26 years (l.J. at 4;
Tr. at 74-75). He has worked for his current employer as a painter since 2013 and has a reputation
as being a diligent worker (l.J. at 4, 9-10; Tr. at 97, 139; Exh. 5 at 30-31). The record also reflects
that the respondent has been diagnosed with diabetes and high blood pressure (l.J. at 4, 10-11; Tr.
at 77). As a result of his diabetes, the respondent had a toe on his left foot amputated (l.J. at 4; Tr.
at 77-79; Exh. 10). He treats his diabetes with insulin, which he is able to afford due to the
insurance he has through his employment (l.J. at 4; Tr. at 80-81).

On the negative side of the discretionary equation, the primary factor identified by the
Immigration Judge is the respondent's lengthy criminal history that includes numerous convictions
spanning from 1994 to 1999 (l.J. at 6, 12; Tr. at 91-95: Exh. 9). Specifically, the respondent has
a January 1994 conviction for assault with a dangerous weapon, for which he was sentenced to 43
days' imprisonment, and 1995 convictions for discharging a fireann and possession of marijuana
(l.J. at 6, 12; Tr. at 93-95, 104-07; Exh. 9 at 12-18). His most recent convictions, driving with a
revoked license and two convictions for driving under the influence, occurred between 1997 and
1999 (l.J. at 6, 12; Tr. at 92, 95, 108-09; Exh. 9 at 2-11). However, the respondent expressed
remorse for his past criminal misconduct and testified that it had been more than 15 years since he
drank any alcoholic beverages (l.J. at 6; Tr. at 125, 129). The other negative factor found by the
Immigration Judge was the respondent's extensive travel to Mexico (l.J. at 5, 10; Tr. at 88-89,
114-15).

2
Cite as: J-R-T-, AXXX XXX 885 (BIA Aug. 18, 2017)
In sum, while this is a close case, we ultimately find that the respondent merits a favorable
exercise of discretion, as his positive equities outweigh the negative factors militating against a
grant of a 212(c) waiver. The respondent's rehabilitation is demonstrated by the fact that he has
not engaged in further criminality since 1999, approximately 15 years prior to the initiation of
removal proceedings, and we do not share the Immigration Judge's view that the respondent's time

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outside the United States is a significant negative factor. Consequently, we find that the respondent
does warrant a 212(c) waiver as a matter of discretion. 1 As the record does not reflect whether the
required background and security checks are current, we will remand the record to ensure that they
are current. See 8 C.F.R. 1003.l(d)(6).

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained solely with respect to his application for a
waiver under former section 212(c) of the Act.

FURTHER ORDER: The appeal is dismissed with respect to all other issues.

FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l(d)(6), the record is remanded to the


Immigration Judge for the purpose of allowing the OHS the opportunity to complete or update
identity, law enforcement, or security investigations or examinations, and further proceedings, if
necessary, and for the entry of an order as provided by 8 C.F.R. 1003.47(h).

1 We note that the respondent has submitted additional evidence on appeal reflecting that he has
recently had a portion of his right foot amputated (Resp. Amended Brief, Exh. A). The Board is
an appellate body whose function is to review, not to create a record. See Matter ofFedorenko,
19 I&N Dec. 57 (BIA 1984). In most cases, our practice would be to deem the respondent's
amended brief to be a motion to remand to permit the Immigration Judge to consider new evidence.
See Matter o/Grijalva, 21 I&N Dec. 27, 37 (BIA 1995); 8 C.F.R. 1003.l(d)(3)(iv). However,
because we sustain the appeal based on the record before the Immigration Judge, we need not grant
the motion.

3
Cite as: J-R-T-, AXXX XXX 885 (BIA Aug. 18, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE CIDEF IMMIGRATION JUDGE
ORLANDO IMMIGRATION COURT

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IN THE MATIER OF:

R -T ,J
A# 885 IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGE: Section 237(a)(2)(C) of the Immigration and Nationality Act ("INA" or


"Act"), as amended, in that the alien has been convicted under any law of
purchasing, selling, offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or conspiring to purchase, sell, \
offer for sale, exchange, use, own, possess, or carry, any weapon, part, or
accessory which is a fireann or destructive device (as defined in section
92 l (a) of Title 18) in violation of any law

APPLICATION: Waiver under the former section 212(c) of the Act

ON BEHALF OF RESPONDENT ON BEHALF OF THE DEPARTMENT


Laura Roman, Esquire Amanda Ayers, Assistant Chief Counsel
Roman Law Firm, LLC Office of the Chief Counsel
14151 Southern Red Maple Drive 3535 Lawton Road, Suite 100
Orlando, Florida 32828 Orlando, Florida 32803

WRITTEN DECISION AND ORDERS OF THE IMMIGRATION JUDGE


DECISION

I. FACTUAL BACKGROUND AND PROCEDURAL IDSTORY

J R -T ("Respondent") is a native and citizen of Mexico who entered into the

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United States at an unknown location and on an unknown date. He subsequently adjusted his

status to that of a lawful permanent resident ("LPR") on May 29, 1991, under section 210(a) of

the Act. On January 10, 1994, Respondent was convicted for the offense of assault with a

dangerous weapon in violation of Michigan Statutes section 750.82. Consequently, the

Department of Homeland Security ("DHS") filed a Notice to Appear on July 25, 2014, charging

Respondent as an alien deportable under section 237(a)(2)(C) of the Act.

On June 2, 2015, Respondent filed an Application for Advance Permission to Return to

Unrelinquished Domicile ("Form 1-191") in order to seek a waiver under the former section

212(c) of the Act. But then on November 5, 2015, Respondent filed a Motion to Terminate

requesting that this Court terminate proceedings in order to allow Respondent to pursue his

application for naturalization with the United States Citizenship and Immigration Services

("USCIS"). DHS filed a motion opposing termination of proceedings on November 13, 2015. On

November 23, 2015, the Court conducted an individual hearing regarding the merits of

Respondent's application for relief. Four days after the hearing, on November 27, 2015,

Respondent filed a reply brief to DHS's opposing motion in which Respondent insists that this

Court terminate proceedings.

II. EXHIBITS

EXHIBIT 1: Notice to Appear (July 25, 2014)

EXHIBIT 2: Record of Conviction for Respondent's January 10, 1994, Conviction for Assault

with a Dangerous Weapon (Dec. 18, 2014)

2
EXHIBIT 3: Form 1-191(June 2, 2015)

EXHIBIT 3A: Notice ofAction("Form I-797C")(June 2, 2015)

EXHIBIT 4: Copy ofRespondent's Legal Permanent Resident Card(June 2, 2015)

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EXHIBIT 5: Evidence ofGood Moral Character(June 2, 2015)

EXHIBIT 6: Records ofConviction for All ofRespondent's Convictions

(June 2, 2015)

EXHIBIT 7: Witness List(Nov. 5, 2015)

EXHIBIT 8: Updated Criminal History Chart Summarizing Respondent's Records of

Conviction(Nov. 20, 2015)

EXHIBIT 9: Updated Records of Conviction for All ofRespondent's Convictions

(Nov. 20, 2015)

EXHIBIT 10: Medical Records(Nov. 20, 2015)

EXHIBIT 11: News Articles on Diabetes in Mexico(Nov. 20, 2015)

EXHIBIT 12: News Article on State ofMental Healthcare in Mexico(Nov. 20, 2015)

EXHIBIT 13: Bureau ofDemocracy, Human Rights and Labor, U.S. Dep't ofState, Country

Reports on Human Rights Practicesfor Mexico 2014(Nov. 20, 2015)

EXHIBIT 14: Human Rights Watch, World Report 2015: Mexico(Nov. 20, 2015)

EXHIBIT 15: U.S. Dep't ofState, Mexico Travel Warning(Nov. 20, 2015)

EXHIBIT 16: News Article on Drug Trafficking in Mexico(Nov. 20, 2015)

EXHIBIT 17: Copies ofTax Returns(Nov. 20, 2015)

EXHIBIT 18: Form 1-688(Nov. 23, 2015)

3
. III. SUMMARY OF THE TESTIMONIAL AND DOCUMENTARY EVIDENCE

At the hearing held on November 23, 2015, the Court heard the testimonies of

Respondent and Respondent's friend, Jose Orozco.

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A. Respondent

Respondent was born in Mexico on September 6, 1967. Orphaned as a teenager, he was

subsequently brought up by his maternal grandparents. But by seventeen years of age,

Respondent decided to come to the United States so as to improve his financial prospects. Thus,

in l 984, Respondent illegally entered the United States via Texas and started working in

agriculture. He remained in Texas for about six months after which he moved to Florida. In

Florida, he worked at an orange grove where he picked oranges. Respondent was able to avail

himself of an agriculture-related amnesty program created in the mid-eighties and was thus able

to adjust his status to that of an LPR on May 29, 1991.

Respondent has been employed by Home and Graphics Painting, Inc., since October of

2013, where he works as a painter and earns approximately $550 per week. He owns a car, which

he estimates to be valued at approximately $2,500, and he owns a bank account, which contains

approximately $500. As regards his residence, Respondent explained that he is currently renting.

Respondent h been diagnosed with both type II diabetes and with high blood pressure.

He has even lost a toe from his left foot on account of the diabetes. He currently treats his

diabetes with insulin, and he explained that his health insurance (which he has through his

employment) covers the cost of this treatment. He expressed a concern that in the event he is

removed to Mexico, he would not be able to cover the cost of insulin in Mexico. According to

Respondent, the quality of healthcare in Mexico is poor. He even blames Mexico's poor

healthcare system for the death of one of his two sisters, who had trouble finding adequate

4
treatment for her diabetes. Respondent also cited mental health concerns. According to

Respondent, in the weeks leading up to the hearing, he has had trouble sleeping, has suffered a

loss of appetite, and has lost weight. He also described how he has been increasingly anxious

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lately.

Back in Mexico, Respondent has one brother, one sister, and several nephews. However,

Respondent explained that if removed to Mexico, he could not live with any of them. As far as

his brother is concerned, Respondent does not even know where in Mexico his brother lives. As

far as his sister is concerned, Respondent explained that she has a husband and several children

to take care of and that her sister has too many financial difficulties to take him in. As far as the

nephews are concerned, they live with their mother (Respondent's sister) and thus do not even

have the option of taking Respondent in.

Since obtaining LPR status, Respondent has frequently traveled to and from Mexico. He

travielled most frequently between 1994 and 1997. According to Respondent, this frequent

travelling was on account of his girlfriend at the time who lived in Mexico. After they split up,

Respondent continued to travel to Mexico, but much less frequently. After 1997, Respondent

explained that he would travel about once or twice a year. At no point, however, did any of these

trips exceed six months. His last trip to Mexico was from March to July of 2013. This trip went

awry when in July he received a phone call from someone allegedly affiliated with Los Zetas, a

drug cartel. The caller threatened to harm him if he did not pay a "quota." Specifically, the caller

had asked for $100. Respondent paid this and then left Mexico three days later. Respondent

explained that he is too afraid to return to Mexico, citing his concern of future exploitation by the

drug cartels.

5
Respondent's testimony also focused on his extensive criminal record from the 1990s.

Respondent was first convicted of assault with a dangerous weapon in January of 1994. In 1993,

Respondent lived on a ranch. One day, at the grocery store, he met a woman who was looking

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for a place to stay. Respondent and the woman came to an agreement where he would permit her

to stay on the ranch with him in exchange for rent money. After a while, this woman stopped

paying Respondent the rent money. When he confronted her about this, the two started to argue.

According to Respondent, the woman had been intoxicated. Not wanting to argue anymore,

Respondent expressed that he was leaving the ranch to go hunt. He then grabbed an antique

firearm from the residence and stepped out. When he returned, the police arrived at his house

shortly thereafter and arrested him. Despite the story given by Respondent, he explained that he

ultimately pied guilty to the offense of assault with a dangerous weapon because his attorney at

the time advised him to do so and because he did not know what defenses were available to him.

Respondent was next convicted in October of 1994 for discharge of a weapon and for

possession of marijuana. Respondent explained that he was with a group of friends and they were

shooting the gun in the air just to "see if it worked." When the police arrived on the scene,

everyone fled but Respondent, who also happened to be in actual possession of the firearm.

Acc;ording to Respondent, he was drinking at the time but he denied being under the influence of

marijuana despite having }'Ossession of it at the time of arrest.

Respondent was again convicted in January 1998 of driving while under the influence of

alcohol. Three months later in March of 1998, Respondent was convicted of driving with a

revoked license. And lastly, in 1999, Respondent was again arrested for driving while under the

influence of alcohol. Respondent expressed remorse for his past criminal misconduct and stated

that it has been several years since he has had any alcoholic beverages.

6
B. Jose Orozco

Mr. Orozco was born in Mexico in 1982. He has been an LPR since 2005. He first met

Respondent in 2007. He explained how he and Respondent have worked together for several

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years. They first worked together from 2007 to 2008 in Plumber, Inc. Most recently, they are

working together for Home and Graphics Painting, Inc.

Mr. Orozco described Respondent as a hard worker and a good person. He explained that

Respondent is a trustworthy person. Aware of his previous criminal history, Mr. Orozco

nonetheless believes that Respondent has long been rehabilitated. As far as he knows,

Respondent rarely drinks alcoholic beverages. And as far as he knows, Respondent has never had

any issues with the authorities.

IV. ANALYSIS

This section of the Court's decision will proceed in two parts. First, the Court will briefly

explain why it will deny Respondent's Motion to Terminate Proceedings. Second, the Court will

explain why it will deny Respondent's application for relief under the former section 212(c) of

the Act in the exercise of its discretion.

A. Motion to Terminate

Respondent has filed a Motion to Terminate in this case, requesting that the Court

tenninate proceedings in order to allow him to pursue an application for naturalization with the

United States Citizenship and Immigration Services ("USCIS"). DHS, however, has filed a

motion opposing termination. As OHS correctly points out, this matter is governed by the Board

of Immigration Appeals' ("BIA") precedent decision in Matter of Hidalgo, 24 I&N Dec. 103

(BIA 2007).

7
In Hidalgo, the BIA expressly held that immigration judges lack the jurisdiction to

determine "prima facie eligibility for naturalization in order to terminate removal proceedings

pursuant to 8 C.F.R. 1239.2(f)." Id. at 106. Consequently, the Court cannot terminate

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proceedings pursuant to 8 C.F.R. 1239.2(f) unless it receives "some affirmative communication

regarding the respondent's prima facie eligibility for naturalization from the DHS." Id. at 107-08.

In the instant case, DHS "has declined to make any communication as to the respondent's

eligibility for naturalization." See DHS's Opposition to the Respondent's Motion to Terminate

and Motion to Continue at 3. Consequently, the Court must deny Respondent's Motion to

Terminate.

8. Application for a Waiver under Section lll(c) of the Act

Before it was abrogated by the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 ("IIRIRA "), the former section 212(c) of the Act provided that "[a]liens lawfully

admitted for permanent residence who temporarily proceeded abroad voluntarily and not under

an order of deportation, and who are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the Attorney General ... "INS . v. St.

Cyr; 533 U.S. 289, 290 (2001) (citing section 212(c) of the Act). While the statute's tenns

applied only to aliens in exclusion proceedings, the BIA eventually extended the availability of

section 212(c) relief to aliens in deportation proceedings.1 And although it was abrogated by

II RI RA in 1996, the U.S. Supreme Court in St. Cyr, 533..IJ.S.at 326, held that the relief afforded

1 Prior to IIRIRA, the INA established ''two types of proceedings in which aliens can be denied the
hospitality of the United States: deportation hearings and exclusion hearings." Varte/as v. Holder, 132 S. Ct.
1479, 1484 (2012) (quoting Landon v. Plasencia, 459 U.S. 21, 25 (1982)). After IIRIRA's passage in 1996,
these two distinct proceedings were merged into one unified procedure, formally known as a "removal
proceeding." See Judu/ang v. Holder, 132 S. Ct. 476, 479 (2011). Nonetheless, "the statutory bases for
excluding and deporting aliens have always varied" and continue to vary as the INA separates the grounds of
inadmissibility-outlined in section 212 of the Act-from the grounds of deportability-outlined in section
237 of the Act. Id.

8
by the former section 212(c) must remain available for aliens, "whose convictions were obtained

through plea agreements and who, notwithstanding those convictions, would have been eligible

for 212(c) relief at the time of their plea under the law then in effect." DHS does not contest

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that Respondent is eligible for relief under section 212(c) of the Act. Rather, DHS argues that

Respondent does not merit relief in the exercise of discretion.

As regards the discretionary analysis for section 212(c) relief, the Court follows the

standard set out in Matter ofMarin, 16 I&N Dec. 581 (BIA 1978), which requires a balancing of

both the favorable and the adverse factors present in the alien's case. Favorable factors that

should be considered "include such factors as family ties within the United States, residence of

long duration in this country [ ], evidence of hardship to the respondent and family if deportation

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 (e.g., affidavits from family, friends, and responsible community representatives)." Id.

at 584-85. Adverse factors that should be considered include "the nature and underlying

circumstances of the exclusion ground at issue, 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." Id. at 584.

A few of the aforementioned favorable factors are present in Respondent's case.

Respondent has been present in the United States for approximately thirty years. Moreover,

Respondent has built up a reputation as a good painter and a diligent worker. Respondent has

provided an affidavit from the Stan Brannon, President of Home and Graphics Painting, Inc.,

9
attesting to his good work ethic. See Exh. 5 at 31. Respondent, however, lacks family ties here in

the United States; rather, his remaining family resides in Mexico. Respondent also lacks any

property ties here in the United States; Respondent explained that he only owns a car and a bank

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account with nominal funds. The record is also devoid of any evidence of "value and service to

the community." See Marin, 16 l&N Dec. at 584.

Further militating against a finding that Respondent has any significant ties to the United

States are Respondent's frequent trips to Mexico. The record reflects that Respondent not 9nly

travelled to Mexico frequently but would stay in that country for long periods of time. In

addition to his frequent travels between 1994 to 1997, the record reflects that Respondent made

nine trips to Mexico from 2000 until 2014, with all but one trip lasting several months: [l] from

November 15, 2000, to February 15, 2001 (three months); [2] from September 15, 2002, to

January 15, 2003 (four months); [3] from December 1, 2003, to March 1, 2004 (three months);

[4] from February 4, 2010, to May 6, 2010 (three months); [5] from July 16, 2010, to August 16,

2010 (one month); [6] from October 24, 2010, to February 9, 2011 (three months); [7] from

November 18, 2011, to April 18, 2012 (five months); [8] from August 16, 2012, to January 5,

2013 (four months); and [9] from March 5, 2013, to July 11, 2013 (four months).

As regards hardship, the Court finds that Respondent's diabetes and high blood pressure

will not result in undue hardship in the event of removal. Notwithstanding his testimony

otherwise, the Court finds that the documentary evidence filed by Respondent reflects Mexico's

efforts to improve its healthcare system in order to more effectively combat diabetes, which is

endemic in the country. See Exh. 11 at 27 ("The government has reacted strongly with national

actions to address the growing burden posed by diabetes."). To the extent "research suggests that

the prevalence and mortality of diabetes will continue to rise in the future," the Court notes this

10
is not due to a lack of access to health services, but rather is due to the fact that "only a minority

understands the importance of life style modifications." See id. at 27, 31. Given the availability

of healthcare in Mexico and the fact that Respondent is already cognizant of the importance of

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managing diabetes through the modification of one's life style, the Court finds that removal of

Respondent to Mexico would not cause undue hardship on account of his diabetes. As far as his

high blood pressure is concerned, Respondent did not explain why or how removal to Mexico

would further exacerbate this issue.

Respondent also cited concerns regarding mental health issues. To that end, Respondent

filed an article entitled "Appalling Conditions in Mexico's Mental Health Institutions." See Exh.

12 at 41-42. The Court, however, need not even address the state of behavioral healthcare in

Mexico as Respondent has not even established that he suffers from any mental health issues.

The Court acknowledges that Respondent testified to losing weight, losing his appetite, difficulty .

sleeping, and to suffering from an increase in anxiety. Respondent, however, has failed to

provide any documentary evidence to support that these symptoms are the result of an underlying

mental health issue.

Respondent also expressed a concern for his own safety should he be removed to Mexico.

Respondent testified regarding a threat from someone associated with Los Zetas and how he was

only able to avoid harm by paying the "quota" of $100. Even accepting Respondent's testimony

as true, the Court still finds that removal to Mexico would not result in undue hardship. To the

extent Respondent is concerned with being harmed by Los Zetas or any other drug cartels, the

Court finds that he could relocate to a more secure region in Mexico. But this may not even be

necessary. The fact that Respondent's sister has lived in Mexico for several decades and has

11
never been harmed by any of the drug cartels suggests that Respondent also has little reason to

fear harm.

The Court will now move on to address the adverse factors present in Respondent's case.

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The most significant of these factors is Respondent's criminal history. Here in the United States,

Respondent has sustained multiple criminal convictions. In 1994, he was convicted of assault

with a dangerous weapon; the record reflects that that "dangerous weapon" was a shotgun. See

Exh. 9 at 18. The Court finds incredible Respondent's attempt to pass this off as a

misunderstanding between him and the alleged victim.

In 1995, Respondent was again convicted of an offense relating to a firearm

specifically, discharge of a weapon; no less troubling is the fact that the specific statute of

conviction in 1995 case-namely, Wisconsin Statutes section 94 l .20(1)(d)-is applicable only if

the defendant "discharges a firearm within 100 yards of any building devoted to human

occupancy." See Wis. Stat. 94l.20( l )(d) (emphasis added); see also Exh. 9 at 12. The

circumstances surrounding the incident and Respondent's motivation for discharging the firearm

are also disconcerting: Respondent explained that he and a few friends had been drinking and

were simply curious to know if the firearm worked; accordingly, they stepped outside and fired

"one or two" rounds in the air.

Respondent's predilection for alcohol led him into trouble again in the late 1990s. In

1998 and 1999, Respondent was arrested for (and was subsequently convicted of) operating a

motor vehicle while under the influence of alcohol. See Exh. 9 at 2, -9. In sum, the Court finds

that Respondent's criminal history reflects a past of irresponsible and violent behavior. Given the

few positive equities identified above, the Court finds that Respondent's criminal history

outweighs the favorable factors in his case. That being the case, the Court will deny

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Respondent's application for relief under the former section 212(c) of the Act in the exercise of

its discretion.

V. CONCLUSION

Immigrant & Refugee Appellate Center, LLC | www.irac.net


In swn, the Court will deny Respondent's Motion to Terminate because it finds that it

lacks jurisdiction to determine Respondent's prima facie eligibility for naturalization, and DHS

has not provided some affirmative communication regarding Respondent's eligibility for

naturalization. Moreover, because the Court finds that the negative equities present in

Respondent's case outweigh the few positive equities, it will deny his application for relief in the

exercise of its discretion.

ORDERS

IT IS HEREBY ORDERED that Respondent's Motion to Terminate is DENIED.

IT IS FURTHER ORDERED that Respondenf s application for a waiver under the

former section 212(c) of the Act is DENIED.

IT IS THEREFORE ORDERED that Respondent be REMOVED to MEXICO.

DATED thi day of February 2016

Immigration Judge

cc: Laura Roman, Esquire


Amanda Ayers, Assistant Chief Counsel

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. '

Certificate of Service

,, PERSON
fALIEN'S ATTYHS
THIS DOCUMENT WAS SERVED BY: MAH &

T01 [ ) ALIEN [ ) ALIEN c/o Custodial Office

DATE: _,

, 4-_f//_ BY:COURT STAFF

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Attachm EOIR"'jf' [ ) EOIR-28 [ ) Leg-a-FS----[-)-0t- h_er
_ _

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