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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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Martin, James Gene OHS/ICE Office of Chief Counsel - ORL
James G. Martin Immigration, PA 3535 Lawton Road, Suite 100
240 N Washington Blvd. Orlando, FL 32803
Suite 303
Sarasota, FL 34236

Name: A C ,V A 523

Date of this notice: 11 /15/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Greer, Anne J.
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit


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Cite as: V-A-C-, AXXX XXX 523 (BIA Nov. 15, 2017)
u,s Department of Justice
.. Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 523 - McClenny, FL Date:


NOV 1 5 2017
In re: V A -C

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IN REMOVAL P ROCEEDING S

APPEAL

ON BEHALF O F RESPONDENT: James G. Martin, Esquire

APPLICATION: Cancellation of removal under section 240A(a) of the Act

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's June 2,
2017, decision denying his application for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2012). The Department of Homeland
Security ("DH S") has not responded to the appeal. The appeal will be sustained, and the record
will be remanded for the completion of the requisite background checks.

We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
§ 1003.l(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&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).

The Im.migration Judge found the respondent statutorily eligible for cancellation of removal,
but denied relief in the exercise of discretion (U at 8-12). In reviewing the discretionary
determination, we must "weigh the favorable and adverse factors to determine whether, on
balance, the 'totality of the evidence before us' indicates that the 'respondent has adequately
demonstrated that he warrants a favorable exercise of discretion and a grant of cancellation of
removal under section 240A(a) of the Act."' Matter of Sotelo, 23 l&N Dec. 201, 204 (BIA 2001)
(quoting Matter ofC-V-T-, 22 I&N Dec. 7, 10 (BIA 1998)).

Among the factors deemed adverse to an alien are the nature and underlying circumstances of
the ground of inadmissibility, the presence of additional significant violations of the country's
immigration laws, the existence of a criminal record, and if so, its nature, recency, and seriousness,
and the presence of other evidence indicative of a respondent's bad character or undesirability as
a permanent resident of this country. See Matter of C-V-T-, 22 l&N Dec. at 11. Favorable
considerations include such factors as family ties within the United States, residence of long
duration in this country (particularly when the inception of residence occurred at an early age),
evidence of hardship to the respondent and his family if removal occurs, service in this country's
Armed Forces, a history of employment, the existence of property or business ties, evidence of
value and service to the community, proof of genuine rehabilitation if a criminal record exists, and
other evidence attesting to a respondent's good character. Id

In concluding that the respondent did not warrant cancellation of removal as a matter of
discretion, the Immigration Judge determined that the respondent's criminal conviction and his
status as an "active criminal gang member" are compelling negative factors weighing against a

Cite as: V-A-C-, AXXX XXX 523 (BIA Nov. 15, 2017)
A 523

favorable exercise of discretion (IJ at 11-12). As the Immigration Judge noted, the respondent
sustained a conviction for carrying a concealed firearm in August 2014, stemming from a traffic
stop where two firearms were found in the respondent's vehicle, at least one of which was loaded
(IJ at 1, 3, 11; Tr. at 14-18; Exh. 2). The Immigration Judge based his determination that the
respondent has "active criminal gang member status" on the notation in the police report related
to his arrest and conviction (IJ at 12; Exh. 2).

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Upon our review of the record, we agree with the respondent's appellate argument that the
Immigration Judge placed undue weight on the notation in the police report that the respondent
has "active criminal gang member status," which is not sourced (Resp. Br. at 8-12). See Matter of
H-L-H- & Z-Y-Z-, 25 l&N Dec. 209, 212-13 (BIA 2010) (holding that the Board has the authority
to afford different weight to the evidence from that given by the Immigration Judge), abrogated
on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Both the Immigration
Judge and the DHS acknowledge that the basis for this gang-member designation in the police
report is unknown (IJ at 12; Tr. at 124). At his hearing, the respondent testified that he does not
belong, and has never belonged, to a gang (IJ at 3; Tr. at 22-24). While the Immigration Judge
ultimately found this testimony not credible, he also described the respondent as being "candid,
forthcoming, and responsive to questioning" (IJ at 7-8). In addition to the respondent's own
testimony, the respondent's mother, brother, and a long-time friend also testified that the
respondent is not, and has never been, a gang member (IJ at 5-6; Tr. at 82, 91, 99, 102, 111).
Furthermore, the respondent presented affidavits from family members and friends attesting to his
good moral character and lack of gang membership (IJ at 12; Resp.'s Exhs. in Support of LPR
Cancellation of Removal, filed Jan. 17, 2017, at 45-58; Resp.' s Notice of Filing, filed Mar. 31,
2017). More importantly, the respondent testified, and submitted evidence, that for the past 9 years
he has worked for the Del Monte Company- at the Port of Manatee, which requires him to
successfully complete an annual background check, and that he can return to his job upon his
release from custody (IJ at 3, 10; Tr. at 12-13, 30-31; Resp.'s Exhs. in Support ofLPR Cancellation
of Removal, filed Jan. 17, 2017, at 59). Thus, ample evidence contradicting the unexplained and
unsubstantiated allegation in the police report that the respondent is an active criminal gang
member undercuts the significance of this negative factor as it weighs against the discretionary
grant of cancellation.

On the positive side of the discretionary equation, the respondent has lived in the United States
for almost 20 years, since he was 8 years old, and has been a lawful permanent resident for
approximately 17 years (IJ at 1O; Tr. at 7). The respondent also has a lengthy employment history
in the United States, having worked for Del Monte at the Port of Manatee for 9 years (IJ at 1O;
Tr. at 12-13). The respondent's mother and four siblings live in the United States (IJ at 4, 10; Tr.
at 25, 86). The Immigration Judge noted the emotional and financial hardship the respondent's
deportation would cause his mother, as demonstrated by the fact that she was working two jobs to
support herself since the respondent's incarceration, and her mental health evaluation reflecting
that she suffers from post-traumatic stress disorder due to domestic violence and concluding that
the respondent's deportation could cause her to suffer anxiety and depression (IJ at 11; Tr. at 9-
10, 26-28, 82-86, 88, 103; Resp.'s Exhs. in Support of LPR Cancellation of Removal, filed Jan.
17, 2017, at 2-8). However, as acknowledged by the Immigration Judge, the respondent's mother
has the respondent's four other siblings to help support her, as they have been doing during the
respondent's detention (IJ at 11; Tr. at 28, 36, 86-88, 105).

Cite as: V-A-C-, AXXX XXX 523 (BIA Nov. 15, 2017)
523

Although we note with considerable concern the respondent's past criminal misconduct and
the serious allegation against him, we ultimately conclude that these negative considerations do
not outweigh his numerous equities, including his lengthy residence and family ties in the United
States, his employment history, the potential hardship to his mother, and the evidence attesting to
the respondent's good character. We will therefore reverse the Immigration Judge's decision

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denying the respondent's application for cancellation of removal under section 240A(a) of the Act.
We must emphasize to the respondent, however, that this was a close case, and having once been
granted cancellation of removal, he will be ineligible for such relief in the future. Section
240A(c)(6) of the Act. Thus, any further misconduct on the respondent's part may result in his
permanent exclusion from this country.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The respondent is eligible for cancellation of removal under section
240A(a) of the Act.

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 DHS 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).

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents. Given that our duty is to safeguard the
interests of the United States, I would affirm the Immigration Judge's decision to deny relief in
the exercise of discretion, in light of the respondent's recent conviction for unlawful carrying of a
concealed firearm.

Cite as: V-A-C-, AXXX XXX 523 (BIA Nov. 15, 2017)
(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE CHIEF IMMIGRATION JUDGE
ORLANDO IMMIGRATION COURT

IN THE MATTER OF:

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IN REMOVAL PROCEEDINGS
A C ,V
A# 523
DETAINED
RESPONDENT

CHARGE: Section 237(a)(2)(C) of the In:imigration and Nationality Act ("INA"), as


amended, as an alien who, at any time after admission, 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, in violation of any
law, any weapon, part, or accessory which is a firearm or destructive device,
as defined in section 92l(a) of Title 18, United States Code

APPLICATION: Section 240A(a) of the INA: Cancellation of Removal for Certain


Permanent Residents (42A)

ONBEHALF OF THE RESPONDENT ONBEHALF OF THE DEPARTMENT


James G. Martin, Esquire Amanda Ayers, Assistant Chief Counsel
James G. Martin Immigration, PA U.S. Department of Homeland Security
240 North Washington Boulevard, Suite 303 3535 Lawton Road, Suite 100
Sarasota, Florida 34236 Orlando, Florida 32803

WRITTEN DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. Procedural and Factual History

V A C ("Respondent"), a native and citizen of Mexico, entered the United


States at an unknown time and place and adjusted status to that of a lawful permanent resident
("LPR") on December 19, 2000, under section 245 of the INA. On August 25, 2014, he was
convicted in the Twelfth Judicial Circuit Court in and for Manatee County, Florida, for the offense
of Carrying a Concealed Firearm, in violation of Florida Statutes section 790.01(2).

On September 22, 2016, the Department of Homeland Security ("OHS") served


Respondent with an Notice to Appear ("NTA"), charging him with removability under section
237(a)(2)(C) of the INA. On September 30, 2016, OHS served Respondent with an Amended
Charge of Removability ("I-261"), lodging new allegations. Respondent, through counsel,

Cite as: V-A-C-, AXXX XXX 523 (BIA Nov. 15, 2017)
(

subsequently admitted all factual allegations, as amended by the 1-261, and conceded removability
as charged in the NTA.1 Based on Respondent's admissions and concessions, the Court sustained
the charge.of removability under section 237(a)(2)(C) of the INA.

On November 9, 2016, Respondent filed an Application for Cancellation of Removal for


Certain Permanent Residents. Notice of Filing Cancellation of Removal Application ("42A
Application") (Nov. 9, 2016). On February 2, 2017, the Court held an individual hearing to

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consider the merits of Respondent's application. The Court held an additional individual hearing
on April 17, 2017.

II. Summary of the Evidence

The record of proceedings consists of the documentary submissions as well as the


testimony of Respondent, his mother , his brother , and his friend
. All admitted evidence has been considered in its entirety regardless of whether
specifically mentioned in the text of this decision.

A. Documentary Evidence

• NTA (Oct. 17, 2016)

• 1-261 (Oct. 17, 2016)

• OHS Notice of Filing (Oct. 17, 2016)

o Notice to EOIR: Alien Address


o Record of Deportable/lnadmissible Alien ("1-213")
o Record of Conviction

• Respondent's Notice of Filing Additional Documents, Tabs E-G (Oct. 17, 2016)

• 42 Application (Nov. 9, 2016)

• Respondent's Exhibits in Support of LPR Cancellation of Removal, Tabs A-E (Jan. 17,
2017)

• Respondent's Notice of Filing, Tabs A-D (Mar. 31, 2017)

1 Respondent had admitted the factual allegations and conceded his removability prior to his individual hearing.

However, for reasons unknown to the Court, Respondent's initial pleadings do not appear to have been memorialized
on the record. Accordingly, in an abundance of caution, the Court held a master calendar hearing on May 18, 2017, at
which Respondent, through counsel, acknowledged and reaffinned the previous admissions and concessions.

2
B. Summary of the Testimony

Respondent

Respondent testified that he was born in San Lorenzo, Guerrero, Mexico, on February 25,
1990. He indicated that he came to the United States when he was eight years old. He has been an
LPR since 2000. Since that time, he has left the United States on multiple occasions, the longest

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of which lasted one month. He testified that he received up to a ninth grade education but had to
stop attending school in order to help his mother pay the bills. He also discussed his parents'
relationship. He stated that his father beat his mother and that he witnessed such domestic violence.
He noted that his father was deported to Mexico when he was about twelve years old. He indicated
that prior to his detention, he lived with his mother, sister, and niece in Palmetto, Florida. He
further testified that he had been working in the shipping industry for Del Monte at the Port of
Manatee prior to his detention. He stated that he worked there for nine years, earned $15 per hour,
and had to undergo a background check annually. He noted that Del Monte has offered him a
position if he is released. He also indicated that he has paid his taxes every year but could not find
a copy of his 2013 return.

Respondent discussed his conviction for unlicensed carry of a concealed weapon. He


testified that in September 2013, he attended his cousin's birthday party along with about fifty
other people. He stated that there were no drugs or alcohol at the party and described the event as
a "kids party." During the party, one of the attendees asked Respondent for a ride to the liquor
store. Another attendee (who was seventeen years old) came along as well. He and the seventeen­
year-old passenger waited in the car as the third passenger purchased three bottles of liquor. As he
and the passengers were leaving the liquor store, an unmarked police car pulled him over for a
broken headlight. During the stop, the officer found two firearms in Respondent's car. Respondent
testified that one gun (a semi-automatic handgun) belonged to him and the other belonged to one
of the passengers. He stated that he had forgotten his gun was in the car until the officer pointed it
out. He also indicated that he did not know about the other gun and told the officer it did not belong
to him. He testified that he possessed the gun for personal protection due to burglaries in his
neighborhood. He stated that he had been keeping the gun in his house but moved it into his car a
few days before the incident because his young nieces came to the house. He indicated that he
purchased the gun from his brother-in-law; he noted that he realized he needed a permit to own
the gun but did not think about that at the time. He acknowledged the police report's statement that
there was movement in his car as if he was hiding the weapon but stated that the movement
stemmed from his search for the vehicle registration. When asked why the police report states he
admitted trying to hide the weapon, he conceded that he may have said that but cannot remember.
For the offense, he was sentenced to twenty-four months of probation, which he completed. He
indicated that he told his employer about the conviction; although he had to be escorted to work
every day for a while, he received clearance again about a year ago. He stated that he has no other
arrests, aside from one instance of driving without a valid license when he was seventeen.

Respondent testified that he does not belong to a gang. He indicated that his police report
reflects "active gang member status" because of an incident when he was a child. Specifically, he
stated that he and six other friends were on their way to a soccer game when their driver was pulled
over; when the officer noticed that one of the children had a gang-related tattoo on his arm, the

3
officer designated everyone in the vehicle as a gang member. He testified that he w� not and has
never been a gang member. He also denied having any friends in gangs. He recognized that his
tattoos could be misinterpreted as gang-related, but he indicated that he views them as a
representation of Mexican culture.

Respondent testified that his mother, four brothers, and sister live in the United States. He
stated that he helps his mother with her mortgage and other bills as well as home repairs.

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Specifically, he indicated that he gives his mother about $600 per month. He noted that since his
detention, his mother has taken a second job to cover her bills. He further noted that his siblings
help their mother somewhat and that his sister moved in with her. He believes that if he is deported,
his mother would have trouble paying her mortgage and could lose her house. In addition, he
testified that his wife, Victoria Santana, lives in Mexico and has never been to the United States.
As to whether he could return to Mexico, he stated that he has not been there since he was eight
years old. He also stated that he would be concerned about his job prospects and safety there. He
acknowledged that his father and uncles live in his hometown, San Lorenzo.

On cross-examination, Respondent testified that the seventeen-year-old passenger "hopped


in last minute" and never left the car during the trip to the liquor store. He reiterated that there was
no drinking at the party, and he noted on redirect that he did not have any understanding with the
seventeen-year-old passenger about allowing him to drink. He also denied that he tried to hide the
gun under his seat. Furthermore, he testified about his tattoos, which he indicated were
representative of Mexican culture or his late grandmother. He stated that he did not know his
tattoos could be misconstrued as gang-related but now understands the connection. As to his
family, he testified that his wife lives in Mexico. He noted that he visited her in Mexico in 2014
and 2016. He indicated that he supports her and that they do not have children together. He also
stated that his sister could support their mother but that his four brothers have their own lives.

Respondent provided additional testimony at his individual hearing on April 17, 2017. He
stated that he went to Mexico in 2014 in order to get married. He indicated that he did not file his
taxes as "married" because his wife lives in Mexico. He testified that he was not trying to deceive
anyone through his filing status and does not owe any back taxes. He noted that a friend from work
helped him prepare his taxes. He testified that he has filed his taxes since 2006; however, he may
have thrown away documentation for 2006-2009 due to the length of time since those filings and
could not locate a copy of his 2013 filing. Additionally, he indicated that he received a Social
Security number in 2000 after his father applied for one. Regarding his concealed weapon offense,
he testified that the gun was not loaded but there was ammunition in his car. When DHS noted that
the police report indicates the gun was loaded, he replied that the report is not correct and that the
police may have described the gun as "loaded" due to the ammunition nearby. He stated that the
gun was already under the seat when the police pulled him over, but he conceded that he may have
admitted to hiding the gun because "there was a lot going on." He testified that he is "sure" the
gun was not loaded at the time because the ammunition clip was next to the gun not in it. He noted
,

that he never fired the gun and had not handled it during the few days it was in his car. He stated
that he realizes how dangerous it was to have a gun in the car with a minor but reiterated that he
did not remember the gun being in his car at the time.

4
(

.
Respondent's Mother:

Respondent's mother, testified that she is an LPR originally from


Guerrero, Mexico. She described her childhood as "very sad," as she was left without a father at
age ten and "pretty much didn't go to school." She also noted that she has been working since age
eleven. She testified that she used to work in homes, taking care of children. She revealed that for
three months, one of her clients sexually abused her; she indicated that she did not tell anyone

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because she was afraid. She stated that the abuse occurred prior to her marriage, which took place
when she was eighteen years old. She testified that her abuse caused her husband to treat her badly,
as he thought she was unfaithful, though she never told him about the abuse. She stated that her
husband drank a lot, had other relationships, and beat her. She testified that her husband was
deported to Mexico about twelve years ago, leaving her to care for her children alone. Following
her husband's deportation, Respondent helped her at home and with the household expenses and
provided her with emotional support. She testified that prior to his detention, Respondent gave her
about $500 per month. Since his detention, she has worked two jobs - a seasonal factory job and a
part-time position at a taqueria - earning $400-500 per week. She noted that she has five children
- some of whom are U.S. citizens and some of whom are LPRs. She indicated that her son Abel
gives her about $100 per month, while her daughter (who has a three-year-old child) gives her
$300 per month and has moved in with her. She noted that her mortgage costs $1500 per month.
She indicated she would not need to work two jobs if Respondent were released. She also stated
that if Respondent is deported, she will miss him and does not know how frequently she would be
able to visit him in Mexico.

On cross-examination, Mrs. reiterated that she lives with her daughter and that her
son and daughter help her; she noted, however, that her two other children do not help her, though
they would "perhaps" help if she asked. She indicated that she has not been to Mexico in six years.
She stated that Respondent travels to Mexico and visits his wife and father there. She testified that
she did not know Respondent owned a weapon and only recently found out about it. She also
testified_,that Respondent is not a gang member. When asked why his name appears in a gang
database, she replied, "I know he's not in a gang." She does not think his tattoos are gang-related,
and she did not know about that potential perception. When asked about Respondent's criminal
offense, she alluded to a drunk driving arrest; however, Respondent later denied that and suggested
she was confusing him with his brother, who was arrested for driving under the influence.

Respondent's Brother:

Respondent's brother, testified that he is a U.S. citizen and works as a


supervisor for a construction company. He described Respondent as a "good brother" who is "very
quiet and respectful" and "always does what he's told." He stated that Respondent is close to their
mother and takes care of her, including tending to home repairs and interpreting for her during
appointments. He testified that Respondent also helps their mother financially; on cross­
examination, he noted that he also helps with his mother's finances. He indicated that Respondent
has never lived outside of their mother's house. He stated that he and Respondent had a difficult
childhood following their father's deportation, which caused them to stop attending school. He
noted that their parents experienced marital problems and that their father drank and physically
mistreated their mother. He testified that Respondent has never been part of a gang and that he

5
(

never saw Respondent associating with gang members. He stated that Respondent's tattoos are not
gang-related; rather, they are popular in Hispanic culture. He was aware of Respondent's gun
charge. He stated that he did not know Respondent owned any weapons but suggested that
,
Respondent probably had the gun for protection due to "delinquenci in their neighborhood. He
noted that Respondent put the gun in his car because of children visiting their house. He was not
aware of any other criminal issues pertaining to Respondent, including any arrest for drunk driving.
He testified that if Respondent is deported, their mother would have to work double and would

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suffer emotionally. He believes that Respondent has learned from his mistakes.

Respondent's Friend:

Respondent's friend, has known Respondent for seventeen years. He


testified that he sees Respondent at least four times per week, as they live in the same neighborhood
,,
and spend time together on the weekends. He described Respondent's home life as "pretty good
, ,
but mentioned that Respondent took on an "adulf role after his father s deportation. He stated that
Respondent has never been a gang member and that he would know if Respondent joined a gang.
He also noted that they do not know anyone affiliated with gangs. He was unsure whether any
gangs operate in their neighborhood. He was aware of Respondent's gun charge and stated he did
not know Respondent had a gun. He was also aware of Respondent's tattoos and views them as
,, ,,
"artistic expression rather than gang-related. He testified that Respondent is "very calm and
,
"avoids trouble. , He stated that Respondent does not pose any danger and is not violent.

III. Credibility

The standards for burden of proof and credibility in connection with applications for relief
were amended by the REAL ID Act and apply to applications made on or after May 11, 2005.
REAL ID Act § 10l(h)(2), Pub. L. No. 109-13, 119 Stat. 231 (2005); see also INA§ 240(c)(4).
Respondent filed his application after May 11, 2005; it is therefore subject to the provisions of the
REAL ID Act. Accordingly, Respondent has the burden to establish that he is eligible for relief
and that he merits a favorable exercise of discretion. See INA § 240(c)(4)(A). In determining
whether he has met this burden, the Court will ascertain whether his testimony is credible,
persuasive, and fact-specific. See INA§ 240(c)(4)(B). The Court weighs the testimony along with
other record evidence. See id. Respondent must also submit documentation in support of his
application for relief as provided by law or by regulation. See id.

In making its credibility determination, the Court considers the totality of the circumstances
and all relevant factors, including: the demeanor, candor, or responsiveness of the applicant or
,
witness; the inherent plausibility of the applicant's or witness s account; the consistency between
the applicant's or witness's written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made); the internal
consistency of such statements; the consistency of such statements with other evidence of record
(including the reports of the Department of State on country conditions); and any inaccuracies or
falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's claim, or any other relevant factor. INA §
240(c)(4)(C). There is no presumption of credibility. Id.

6
(

All of the witnesses, including Respondent, were candid, forthcoming, and responsive to
questioning by Respondent's attorney, DHS, and the Court. In general, their testimonies were
internally' consistent and consistent with each other's testimonies. Many aspects of Respondent's
claim also find support in the record. For example, Respondent has presented confirmation of his
employment history and future job prospects with Del Monte. Respondent's Exhibits in Support
of LPR Cancellation of Removal, Tab B, at 59. The record also includes some of Respondent's
tax returns. Id, Tab D. Other evidence verifies his successful completion of probation. Id., Tab C,

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at 92-97. Moreover, Respondent submitted documents attesting to his good character and the
potential hardship to his mother if he is deported. E.g., id., Tab B, at 6-7, 45- 58 .

However, the Court notes significant conflicts between Respondent's testimony and the
documentary evidence. In particular, Respondent's testimony is at odds with the police report in
three major respects. First, Respondent's testimony differs from the police report regarding
whether the gun was loaded. Respondent testified that the gun was not loaded but that he kept an
ammunition clip nearby. By contrast, the police report unambiguously describes the gun as
"loaded." Record of Conviction. Second, Respondent testified that he did not attempt to hide the
gun, though he acknowledged that he might have said that to the police. He attributed the police
report's notes about "excessive" and "furtive" movement in his car to his search for the vehicle
registration. However, the police report indicates that both Respondent and one of the passengers
admitted that Respondent attempted to hide the gun during the stop. Id. Third, Respondent testified
that he was not a gang member at the time of the offense, nor is he currently a gang member. All
three character witnesses testified to that effect, and many of the affidavits in the record expressly
deny Respondent's gang membership. E.g., Respondent's Notice of Filing, Tabs A-C. Yet,
Respondent explained that the police labeled him a gang member during a vehicle stop involving
a passenger with a gang tattoo. The police report states that "[a]n FCIC/NCIC check showed that
[Respondent] has an active criminal gang member status[,]" though it does not elaborate any
further upon that statement. Id Florida law specifically defines the term "criminal gang member."
Fla. Stat.§ 874.03(3). That provision requires that the alleged criminal gang member meet two or
more enumerated criteria.2 Where an individual solely meets one criterion, such as associating
with a known criminal gang member, that individual is considered a "criminal gang associate"
rather than a member. Fla. Stat. §· 874.03(2). As a result, Florida law renders Respondent's
explanation for his gang member status facially implausible; if, as he suggests, his designation

2 The criteria include situations where the individual:


(a) Admits to criminal gang membership.
(b) ls identified as a criminal gang member by a parent or guardian.
(c) Is identified as a criminal gang member by a docwnented reliable informanJ;.
(d) Adopts the style ofdress ofa criminal gang.
(e) Adopts the use ofa hand sign identified as used by a criminal gang.
(t) Has a tattoo identified as used by a criminal gang.
(g) Associates with one or more known criminal gang members.
(h) Is identified as a criminal gang member by an infonnant ofpreviously untested reliability and such identification
is corroborated by independent information.
(i) ls identified as a criminal gang member by physical evidence.
(j) Has been observed in the company ofone or more known criminal gang members four or more times. Observation
in a custodial setting requires a willful association. It is the intent ofthe Legislature to allow this criterion to be used
to identify gang members who recruit and organize in jails, prisons, and other detention settings.
(k) Has authored any communication indicating responsibility for the commission ofany crime by the criminal gang.

7
derives from a lone instance of being in the same car as an individual with a gang tattoo,3 at least
one other criterion compounded that factor.

Lastly, the Court notes certain issues related to Respondent's taxes. Although he submitted
tax filings for 2010-2012 and 2014-2015, he did not submit his filing for 2013 or any years prior
to 2010.4 He testified that he may have disposed of copies of his filings prior to 2010 and could
not locate his 2013 return. Yet, he did not indicate that he made any further efforts to obtain copies

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of these filings. Moreover, he testified that a friend from work helped him prepare his taxes.
However, that directly contradicts the available tax filings, which reflect that his filings were either
"self-prepared" or prepared by a professional tax service. 42A Application at 99, 101, 104, 108,
111. The preparation of the 2014 and 2015 filings is especially important given that the filings list
Respondent as "single" despite his marriage in 2014. 5

In light of these discrepancies, the Court concludes that an adverse credibility finding is
warrantetl. Accordingly, the Court finds Respondent not credible.

IV. Cancellation of Removal under Section 240A(a) of the INA

To be eligible for cancellation of removal under section 240A(a) of the INA, an alien must
demonstrate that he (I) has been lawfully admitted for permanent residence for not less than five
years; (2) has resided in the United States continuously for seven years after having been admitted
in any status; and (3) has not been convicted of an aggravated felony. INA § 240A(a), (d)(l);
Savoury v. U.S. Atty Gen., 449 F.3d 1307, 1314 n.l (11th Cir. 2006); see also Matter ofEscobar,
24 I&N Dec. 231, 232 (BIA 2007).

A. Five Years of Lawful Permanent Residence

Respondent adjusted status to that of an LPR on December 19, 2000. I-261; I-213; see 42A
Application at 52. There is no indication that Respondent has in any way relinquished or lost his

3 The Court notes that the law distinguishes "associating" with a known criminal gang member from being "observed
in the company" of a known criminal gang member, which must occur "four or more times." In that sense, assuming
that Respondent's designation arose because of his ties to the occupant with the gang tattoo, the police officer
establishing that designation in Respondent's case would have necessarily found a sufficient basis to conclude that
such ties represented "association."

4 Although Respondent testified that he began filing returns in 2006, his application lists his filing years as ''2007 to
present." 42A Application at 55.

5Respondent's designation as a "single" individual for tax purposes despite his marriage, albeit foreign and to a
Mexican citizen, may not have been proper under U.S. tax law. See, e.g., 26 U.S.C. § 7703{b) (rules determining
whether an individual is considered married when living apart from his spouse); 26 C.F.R. §§ I .14 I I-2(a)(2)(iii) ("In
the case of a United States citizen or resident who is married to a nonresident alien individual, the spouses will be
treated as married filing separately for purposes of section 1411."), 1.4-3(d) (rules determining marital status when
husband and wife file separate returns); cf Vichich v. Comm'r ofInternal Revenue, 146 T.C. 186, 193 (T.C. 2016)
("The Code treats married taxpayers who file jointly as one taxable unit; however, it does not convert two spouses
into one single taxpayer."). However, the Court reaches no conclusion as to the impropriety or illegality of that filing
selection and shall not otherwise assume the wrongfulness of that decision for the purposes of this decision.

8
LPR status. Given that Respondent has had LPR status for nearly seventeen years, the Court finds
that ResJ>?ndent possesses the requisite five years of lawful permanent residence.

B. Seven Years of Continuous Residence

Respondent testified that he entered the United States when he was eight years old. On his
application, he lists an initial entry as January 1, 1998. 42A Application at 54. His application

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notes that he has left the United States "about 7 times do not remember dates." Id. He testified that
his longest trip lasted one month. His application further indicates that he has resided in Palmetto,
Florida, since May l, 2000. Id. at 52. The available tax filings from 2010 through 2015 (excluding
2013) confirm Respondent's Florida residency during that timeframe. See Respondent's Exhibits
in Support of LPR Cancellation of Removal, Tab D. Other evidence indirectly supports
Respondent's residency, including verification of his employment at the Port of Manatee for the
past nine years. See id., Tab B, at 59.

Under the "stop time" rule, continuous residence ends upon the earlier of (1) the issuance
of the NTA, or (2) the commission of an offense under sections 212(a)(2), 237(a)(2) or 237(a)(4)
of the INA. INA§ 240A( d)(1). Respondent's NTA was issued and personally served on September
22, 2016. NTA. He committed his unlicensed carry offense on September 28, 2013. Record of
Conviction. Even assuming that his offense stopped his continuous residence in 2013, he still
accrued the requisite seven years of continuous residence prior to operation of the stop time rule.
Thus, the Court finds that Respondent meets the residence requirement.

C. No Aggravated Felony

The Court's independent review of Respondent's criminal record reveals that he has not
been convicted of an aggravated felony. See Record of Conviction. OHS has not suggested, nor
does the Court find any reason to conclude, that Respondent's conviction under section 790.01(2)
of the Florida Statutes constitutes an aggravated felony. See INA§ 10 l (a)(43)(E)(ii); 18 U.S.C.§
922; Matter ofOppedisano, 26 I&N Dec. 202, 205-06 (BIA 2013); Matter of Vasquez-Muniz, 23
l&N Dec. 207, 210 (BIA 2002). As such, the Court finds that Respondent is statutorily eligible for
cancellation of removal. Therefore, the Court will now address whether Respondent merits
cancellation of removal in the exercise of discretion.

D. Discretion

In addition to satisfying the statutory eligibility requirements, an applicant for cancellation


of removal under section 240A(a) of the INA must establish that he warrants such relief as a matter
of discretion. INA § 240(c)(4)(A)(ii); Matter of C-V-T-, 22 I&N Dec. 7, 10 (BIA 1998). The
general standards developed in Matter of Marin, 16 l&N Dec. 581 (BIA 1978), for the exercise of
discretion under former section 212(c) of the INA apply to "exercising discretionary authority"
under section 240A(a). C-V-T-, 22 l&N Dec. at 10-11. The Court balances, upon review of the
record as a whole, the adverse factors evidencing the alien's undesirability as a permanent resident
with the social and humane considerations presented to determine whether the granting of relief
appears in the best interest of the United States. Id. at 11 (citing Marin, 16 I&N Dec. at 584-85).
An applicant for cancellation of removal under section 240A(a) of the INA need not meet a

9

(

threshold test of showing unusual or outstanding equities. Matter of Sotelo-Sotelo, 23 I&N Dec.
201, 204 (BIA 2001). Instead, the Court weighs the favorable and adverse factors to determine
whether, on balance, the totality of the evidence indicat�s that the respondent warrants a favorable
exercise of discretion. Id

Favorable considerations include family ties within the United States, residence of long
duration in this country (particularly when the respondent arrived at a young age), evidence of

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hardship to the respondent and his family if the respondent is removed, 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 rehabilitation if a criminal record exists, and other evidence
attesting to a respondent's good character. C-V-T-, 22 I&N Dec. at 11. Adverse factors relevant to
discretion include the nature and underlying circumstances of the grounds of exclusion or removal
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, seriousness, and recentness), and the presence
of other evidence indicative of a respondent's bad character or undesirability as a permanent
resident of this country. Id In some cases, the minimum equities required to establish eligibility
for relief under section 240A(a) may be sufficient in and of themselves to warrant favorable
discretionary action. Id. (citing Marin, 16 l&N Dec. at 585). However, as the negative factors
grow more serious, it becomes incumbent upon the alien to introduce additional offsetting
favorable evidence. Id at 11-12.

Ordinarily, a respondent who has a criminal record must present evidence of rehabilitation
before the Court grants relief as a matter of discretion. Id. at 12. However, "a showing of
rehabilitation is not an absolute prerequisite in every case involving an alien with a criminal
record." Id. at 11. The Court evaluates applications on a case-by-case basis, with rehabilitation as
a factor considered in the exercise of discretion. Id. at 12.

Beginning with Respondent's positive equities, he entered the United States at the age of
eight and has resided here for nearly twenty years. He has held LPR status for about seventeen of
those years. His mother and siblings live in the United States. He attended school up to the ninth
grade but left to help his mother pay the family's bills following his father's deportation. He has a
long history of employment in this country since at least 2006, the majority (nine years) of which
has been as an employee for Del Monte at the Port of Manatee. 42A Application at 55;
Respondent's Exhibits in Support ofLPR Cancellation of Removal, Tab B, at 59. As Respondent
testified and his employer's letter attests, his job at the Port of Manatee required successful
completion of a background check. Respondent's Exhibits in Support of LPR Cancellation of
Removal, Tab B, at 59. The letter confirms that Respondent is eligible for reinstatement at his job
if he is released. Id Although the documentary evidence verifies his tax filings only for 2010-2012
and 2014-2015, he testified that he has always paid his taxes. See id, Tab D. The Court also notes
that, according to his application, he has $12,200 in assets in the United States. 42A Application
at 55. The Court further notes several letters attesting to Respondent's good character, sentiments
echoed by the testimonial witnesses. Respondent's Notice of Filing, Tabs A-C; Respondent's
Exhibits in Support ofLPR Cancellation of Removal, Tab B, at 45-58.

In addition, the Court acknowledges the hardship Respondent's deportation would impose
on him and his mother. First, Respondent testified that he has concerns about his safety and job

IO
t
(

·
prospects in Mexico. Although the record does not contain direct evidence pertaining to Mexico's
economy, the State Department's 2015 Human Rights Report corroborates Respondent's concerns
regarding· the level of societal violence. E.g., Respondent's· Exhibits in Support of LPR
Cancellation of Removal, Tab B, at 11. The Court also recognizes that given his residency in the
United States since the age of eight, removal to Mexico would result in some degree of hardship
related to life in a different country. Regarding his mother, the record reflects that she suffers from
posttraumatic stress disorder. Id, Tab B, at 6. The mental health evaluation discusses the potential

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adverse impact of Respondent's deportation on her well-being. Id The social worker concludes
that Respondent's deportation could cause Respondent's mother to suffer "severe anxiety and
depression." Id at 7. The testimony of Respondent's mother confirms some level of emotional
reliance on Respondent. The main hardship she would suffer appears to be financial; prior to his
detention, Respondent gave her about $600 per month. She testified that she now has to work two
jobs to afford her bills and anticipates having to continue both jobs without Respondent's
contribution.

Yet, as to the negative factors, the Court begins by noting that Respondent's mother
receives support from two of her other children, totaling about $400 per month. In fact, her
daughter currently lives with her and could therefore assume Respondent's household
responsibilities. Respondent's mother also testified that her other children would "perhaps" help
if she asked. In other words, the assistance Respondent's siblings can offer to their mother will
temper the adverse impact of his deportation. In addition, the fact that Respondent's wife lives in
Mexico will mitigate his hardship. Her presence there will lessen both the emotional impact of
deportation (through family reunification) as well as the potential hardship in finding a place to
live. The Court further points out that Respondent's father and uncles live in Mexico as well,
thereby limiting his cumulative hardship.

The two most significant adverse factors in this case are Respondent's conviction for
unlicensed concealed carry of a firearm and his "active criminal gang member status." Beginning
with his conviction, according to his own testimony, he drove a stranger and a seventeen year old
to a liquor store with a gun and ammunition under his seat. He attempts to frame the seventeen
year old's presence as a circumstance out of his c0ntrol in spite of his authority as an adult and the
driver of the vehicle; in doing so, he has not taken responsibility for his actions (or more precisely,
his lack thereof). Moreover, as the Court noted above, Respondent has not reasonably settled the
discrepancy between his testimony that he did not hide the gun with the police report's statement
that he hid the gun through "furtive" and "excessive" movements during the stop. Record of
Conviction. His testimony about the gun being unloaded also stands in contrast to the police
report's indication that the gun was loaded. Id. The Court acknowledges that Respondent
completed his twenty-four-month term of probation and has not committed any offenses since
then. However, the Court emphasizes the seriousness of the offense (the presence of a semi­
automatic handgun; the ammunition nearby; the presence of a minor passenger, especially given
the liquor store destination during what Respondent described as a children's party) in placing
significant weight on it for the purposes of discretion. The Court also highlights one other key
issue related to Respondent's offense: the chain of custody for the gun Respondent testified that
.

he received the gun from his brother-in-law. However, the record contains no evidence to
corroborate that claim. He did not submit, for example, an affidavit from his brother-in-law
discussing the alleged transaction. Nor do any of the letters in the record specify how Respondent

11
came to possess an unlicensed semi-automatic handgun or ammunition for it. Given the evidence
of Respondent's gang membership (discussed below), the absence of credible evidence pertaining
to the guri's chain of custody is particularly concerning.

Respondent's "active criminal gang member status" represents an additional, significant


adverse factor precluding a discretionary grant of relief. The Court notes the Board of Immigration
Appeals' statement in Matter of E. E. Hernandez that "[c]riminal gangs pose a serious danger to

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public safety and have a taxing burden on soci�ty and our moral culture." 26 I&N Dec. 397, 400
(BIA 2014) (citations omitted). Respondent denies any past or present membership in a gang, an
assertion echoed throughout the other testimony and affidavits. Again, the police report for
Respondent's offense contradicts that assertion. Record of Conviction. Moreover, the I-213
mentions, in relation to Respondent's possible gang membership, the police report note as well as
his tattoos. See Matter ofPonce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) (describing the I-
213 as an "inherently trustworthy" document). Even taking Respondent's testimony at face value,
he associated himself with a gang member, leading to his designation as a "criminal gang
member." As discussed previously, Florida law distinguishes between a "criminal gang member"
and "criminal gang associate," requiring a higher showing for the former. Fla Stat. § 874.03(2)­
(3). The police report does not reveal the exact basis for Respondent's designation, and Respondent
has not submitted additional documentation pertaining to that designation. Yet, Respondent's
denial of gang membership rests in part on his benign description of the meaning behind his tattoos.
According to the I-213, Respondent's tattoos include his last name, praying hands, a cross, stars,
Mexican tribal skulls, a Mexican tribal face, a reaper, and a candle. I-213. Respondent testified
that he did not understand at the time that his tattoos could be construed as gang-related, though
he now recognizes the association. Yet, he did not indicate that he intends to modify or remove
the tattoos that he now understands to be gang-related. Given Respondent's lack of credibility in
combination with the police report's statement about his gang membership, the Court views
Respondent's tattoos as further evidence corroborating (at least circumstantially) his "active
criminal gang member status." In sum, Respondent has not presented sufficient evidence to counter
the objective indications of his gang membership.

The Court finds that Respondent's criminal conduct and his status as an active criminal
gang member, when combined with the mitigating circumstances of the hardship to him and his
mother, outweigh his positive equities. See Sotelo-Sotelo, 23 I&N Dec. at 204; C-V-T-, 22 I&N
Dec. at 11-12. Accordingly, the Court shall deny Respondent's application for cancellation of
removal as a matter of discretion.

V. Conclusion

In sum, although Respondent is eligible for cancellation of removal pursuant to section


240A(a), he has not demonstrated his suitability for such relief in the exercise of the Court's
discretion. Accordingly, the Court will enter the following orders:

12
r

ORDERS

IT IS HEREBY ORDERED that Respondent's application for cancellation of removal


pursuant to section 240A(a) of the INA be DENIED.

IT IS FURTHER ORDERED that Respondent be REMOVED to Mexico pursuant to


the charge of removability set forth in the Notice to Appear.

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DATED this L day of June 2017.

Appeal due by: ------


cc: James G. Martin, Esquire, Counsel for Respondent
Amanda Ayers, Assistant Chief Counsel

(P)
'-I
THIS DOCUMENT WAS SERVED BY: PERSONAL
TO: [ ) ALIEN [ ) ALIEN c/o Custodial Officer ALIEN'S ATTY/REP DHS

DATE: ¥.J/t) BY:COURT STAFF �-tJS:>�.---


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