U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Ptlce, Suite 2000

Falls Church, Virginia 22041

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

Perretta, Leonor OHS/ICE Office of Chief Counsel - SLC
Perretta Law Office 2975 Decker Lake Dr. Stop C
8831 S. Redwood Road West Valley City, UT 84119
Suite A
West Jordan, UT 84088

Name: A , I J A 630

Date of this notice: 6/20/2017

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:
Adkins-Blanch, Charles K.
Grant, Edward R.
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: I-J-A-, AXXX XXX 630 (BIA June 20, 2017)
 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

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

OHS/ICE Office of Chief Counsel - SLC
2975 Decker Lake Dr. Stop C
West Valley City, UT 84119

Name: A , I J A 630

Date of this notice: 6/20/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

/l J

(_;
;_,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Kendall Clark, Molly

Userteam: .

Cite as: I-J-A-, AXXX XXX 630 (BIA June 20, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls' Church, Virginia 22041

File: A 630 - Salt Lake City, UT Date:

JUN 2 0 2017
In re: I J A E a.k.a. J I A -

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Leonor Perretta, Esquire

APPLICATION: Cancellation of removal

The respondent, a native and citizen of Mexico, appealed the Immigration Judge's decision,
dated September 8, 2016, which denied his application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b). The record will be
remanded for further proceedings consistent with this decision.

The record indicates a different Immigration Judge ("the second Immigration Judge") from the
Immigration Judge who presided over the respondent's hearing ("the first Immigration Judge")
signed and issued the decision in this case (I.J. at 8). In this regard, the respondent applied for
cancellation of removal based on his claim that his removal would result in exceptional and
extremely unusual hardship to his qualifying relative (his United States citizen children (l.J. at 3;
Tr. at 37-43, 96, 100). At the conclusion of the merits hearing on April 30, 2015, the first
Immigration Judge indicated that a decision would be issued at a later, unspecified dated (Tr. at
122-23). See section 240A(e) of the Act, 8 U.S.C. 1229b(e); 8 C.F.R. 1240.21(c)(l) (directing
immigration judges to reserve granting or denying applications for cancellation of removal until
such time as a grant becomes avail fble in a subsequent fiscal year). On September 8, 2016, the
second Immigration Judge signed d issued a written decision "for" the first Immigration Judge.
That decision, evidently prepared by the first Immigration Judge, denied the respondent's
cancellation of removal application (l.J. at 7).

Section 240A(e) of the Act provides context for analyzing this case and addressing some of
the concerns we have with this case before us. That section states that no more than 4,000
applications for cancellation of removal under section 240A(b) of the Act or suspension of
deportation under former section 244(a) of the Act, 8 U.S.C. 1254(a), may be granted in any
fiscal year. Federal regulations at 8 C.F .R. 1240.21 set up a procedure to implement this statutory
cap. Under this procedure, the Immigration Judges and the Board may grant (or deny) cancellation
and suspension cases as long as allotted numbers are available. See section 240A(e) of the Act.
With certain exceptions, once the cap is reached further decisions will be reserved and issued once
numbers become available. The regulation provides in pertinent part:

When grants are no longer available in a fiscal year, further decisions to grant or deny
such relief shall be reserved until such time as a grant becomes available under the
annual limitation in a subsequent fiscal year. Immigration judges and the Board may
deny without reserving decision or may pretermit those suspension of deportation or
Cite as: I-J-A-, AXXX XXX 630 (BIA June 20, 2017)
A 630

cancellation of removal applications in which the applicant has failed to establish

statutory eligibility for relief.1

8 C.F.R. 1240.21(c)(l)

We find additional guidance on the applicability of the annual cap in an Operating Policies &

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

Procedures Memorandum ("OPPM") issued by the Office of the Chief Immigration Judge.
Procedures on Handling Applications for Suspension/ Cancellation in Non-Detained Cases Once
Numbers are no Longer Available in a Fiscal Year (OPPM 12-01) (February 3, 2012). The OPPM
sets forth the procedures for reserving decisions in non-detained suspension of deportation or
cancellation of removal cases, which are subject to the cap. The OPPM does not specifically
address or authorize one Immigration Judge to render and reserve an oral or written decision while
another Immigration Judge issues that decision. See OPPM 12-01.

Federal regulations provide that where an Immigration Judge is no longer available to complete
his or her assigned cases, another Immigration Judge may be assigned to complete those cases.
See 8 C.F.R. 1240.l(b). The regulations require that the new Immigration Judge familiarize
himself "with the record in the case and shall state for the record that he or she has done so." Id.
In this case, the record does not reflect that the second Immigration Judge complied with this
regulation, as he did not state on the record that he had familiarized himself with the case.
Additionally, assuming the first Immigration Judge prepared the written decision, the second
Immigration Judge's effort to give legal effect to the first Immigration Judge's decision by signing
the decision on his behalf on September 8, 2016, was also improper.

Accordingly, we will remand the record for the second Immigration Judge, who is substituted
for the first Immigration Judge, to comply with the requirements of 8 C.F.R. 1240.l(b). We
express no opinion as to the respondent's ultimate eligibility for the requested forms of relief from
removal.

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

FOR THE BOARD

1 Th e regulation further specifies that the denial or pretermission may not be based on an
unfavorable exercise of discretion, a finding of no good moral character on a ground not
specifically noted in section IOI(t) of the Act, 8 U.S.C. 1lOl(t), or a failure to establish the
requisite hardship. 8 C.F.R. 1240.21(c)(l).

Cite as: I-J-A-, AXXX XXX 630 (BIA June 20, 2017)
 l

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SALT LAKE CITY, UT

FILE: 630 )

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

)
IN THE MATIER OF ) IN REMOVAL PROCEEDINGS
)
I J A , )
)
)
Respondent )

CHARGE: 212(a)(6)(A)(i) of the Immigration and Nationality Act: Present in the

United States without having been admitted or paroled

APPLICATIONS: Cancellation of Removal for non-permanent residents

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE OHS:

Leonor Perretta, Esquire Jeff Clark

8831 South Redwood Road #A Assistant Chief Counsel
West Jordan, UT 84088 2975 South Decker Lake Dr., Stop C
West Valley City, UT 84119

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 45-year-old unmarried, male who is a native and citizen of Mexico. The

Department of Homeland Security ("OHS") issued a charging document, a Notice to Appear

("NTA"), dated February 19, 2010, charging the respondent with inadmissibility pursuant to

section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("the Act"). The OHS alleged in the

NTA that the respondent is an alien who is present in the United States without having been

admitted or paroled. The NTA was filed with the Immigration Court on February 24, 2010. See

Exh. l.

The respondent admitted the factual allegations contained in the NTA in court at a hearing

on April 13, 2010. The respondent designated Mexico as the country for removal. Based on the

respondent's admissions, the Court finds that his inadmissibility has been established pursuant to
section 240(c)(2) of the Act.

The respondent requested an opportunity to apply for cancellation of removal for certain

non-permanent residents pursuant to section 240A(b)(l) of the Act. The respondent's Form

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

EOIR-428, application for cancellation of removal, was first filed with the Court on June 1, 2010.

See Exhibit 3. The respondent submitted an updated application for cancellation of removal on

March 11, 2015. See Exhibit 8. The respondent also sought, in the alternative, voluntary departure

under section 240B(b) of the Act.

Prior to taking testimony on April I, 2015, the respondent swore or affirmed that the

contents of his application were true and correct to the best of his knowledge. A hearing on the

merits of the respondent's application for cancellation of removal was conducted on April 1, 2015.

The respondent and his lawful permanent resident mother, Maria Delores Gutierrez Briseno,

provided testimony. The Court finds that the witnesses testified in a credible manner.

STATUTORY ELIGIBILITY

The respondent bears the burden of establishing statutory eligibility for the requested relief.

See section 240(c)(4)(A) of the Act. To be eligible for cancellation of removal under section

240A(b)(l) of the Act, an applicant must prove that he:

1) has been physically present in the United States for a continuous period of not less than IO
years immediately preceding service of the charging document and up to the time of
application;

2) has been a person of good moral character during such period;

3) has not been convicted o_f an offense under certain specified sections of the Act (sections
212(a)(2), 237(a)(2), or 237(a)(3) of the Act); and

4) establishes that removal would result in exceptional and extremely unusual hardship to the
applicant's spouse, parent, or child, who is a United States citizen or lawful permanent
resident.

2
 SUMMARY OF THE FACTS

The respondent testified that he first entered the United States in 1985. He said he left the

United States in 1993 to visit his parents in Mexico for three weeks then returned to the United

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

States. The respondent stated that he only went to school until the third grade then started working

in the tobacco fields so his family could have money to eat.

The respondent indicated that he has seven qualifying relatives: his five United States

citizen children, J I (19), Is (11), Is (8), V (7), and A (4), as well

as his U.S. citizen father (82) and his lawful permanent resident mother (68). The respondent's

oldest son lives wit4 his mother in California. The respondent maintains a relationship with his son,

and he testified that he has consistently provided financial and emotional support even though he

was never ordered to do so by a court. The respondent said that J has completed high school.

The respondent testified that l was diagnosed with asthma about seven years ago.

He said that she occasionally uses an inhaler but is otherwise in good health. He also stated that she

is a good student and is currently in the fifth grade. The respondent said that I is currently in

third grade, and he is also a good student. I was diagnosed with a heart murmur when he was

five years old, and the respondent indicated that he does not always breathe well. The respondent

explained that I and I play a lot of soccer. The respondent indicated that all of his

children enjoy good health. The respondent stated that he tried to obtain medical evidence, but that

he was unable to get doctor's reports in a fonnat that could be presented in court.

The respondent testified that the four youngest children and their mother would accompany.

him if he were ordered removed to Mexico. According to the respondent, the older children have

taken some Spanish in school and all four children speak and understand Spanish. He said that his

parents have a house in the respondent's hometown ofNayarit, Mexico; and his mother confinned

in her testimony that the house was currently vacant. The respondent explained that his children

speak Spanish, although they have limited reading and writing ability. He said he has worked at the

Macaroni Grill for the past 11 years. The respondent said he was concerned about current country

conditions in Mexico because he has heard the criminal gangs target people who have returned

from the United States because of their perceived wealth.

The respondent indicated that he used the services of a smuggler to enter the United States

in 1985, paying him $200. He again, used a smuggler to enter in 1993, and recalled paying $300.

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

When questioned about his social security number on his pay stubs, the respondent confessed that

he had used a fake lawful permanent resident card to obtain employment and a false social security

number. The record shows that he continued using the false social security number even after he

had obtained work authorization. The respondent submitted several years of tax returns. The

respondent was asked why he had claimed dependents listed as his children for several years that

were not his children. He was unable to provide a rational explanation and blamed his tax preparer.

See, e.g., Exh. 7, pgs. 28, 3:2. The respondent did file a 2010 amended tax return.

The respondent testified that he was twice convicted of Driving Under the Influence, in

2004 and 2009. He said that the last time he drove after drinking was in 2009. Although he claimed

that neither incident resulted in an accident, the OHS submitted evidence that the respondent was

involved in an accident in the incident that resulted in his 2004 DUI conviction. Exh. 8, pgs. 24-26.

He admitted that he did not have a valid driver's license during the time he suffered both

convictions. During the 2009 incident, he admitted that he was driving without headlights, had no

insurance on the vehicle, and had two of his children in the car.

The respondent did not complete his probation or pay his fines or fees for his 2009

conviction, and a bench warrant was issued. The bench warrant was later renewed and remains

outstanding. The respondent said that he is currently working with his attorney to resolve the bench

warrant.

The respondent said that he is only familiar with the part of Mexico where he grew up, and

he would likely return there if required to leave the United States, along with his four youngest

children and their mother.

The respondent's mother also testified. She indicated that she lives with her husband and

their son Jose. She indicated that both she and her husband suffer from a variety of medical issues,

i ncluding diabetes, hypertension, arthritis, and depression. She said that her husband suffered a

debilitating stroke which resulted in paralysis. She indicated that the respondent helps her care for

him every morning because he cannot bath, eat, or dress himself. Although she has seven other

children in Utah, only the respondent and two siblings provide regular care. Given her and her

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

husband's medical conditions, she said that it is unlikely they would be able to travel to Mexico.

In this case, the respondent's application was filed after May 11, 2005. Accordingly, it is

governed by the REAL ID Act of 2005. An alien whose application for relief from removal was

filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No.

109-13, 119 Stat. 231 ("REAL ID Act"), has the burden to prove that he satisfies the applicable

eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of

the Immigration and Nationality Act, 8 U S C . . . 1229a(c)(4)(A) (2006), and must provide

corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B),

unless it cannot be reasonably obtained. Matter ofAlmanza, 24 I&N Dec. 771 (BIA 2009).

The Court finds that the respondent has met his burden under the REAL ID Act to establish

the requisite ten year period of continuous physical presence required to establish statutory

eligibility for the relief sought under section 240A(b)(l )(A) of the Act.

GOOD MORAL-CHARACTER

The DHS argues that the respondent lacks the requisite good moral character based upon

the respondent's use of false documents, false dependent claims made on federal tax filings, false

testimony in immigration proceedings, and his failure to comply with the terms of his probation

which resulted in outstanding warrants of arrest.

The Court observes that the respondent appears to be an affable man with very limited

education. While his lack of education does not excuse his knowing use of false documents and

evasive testimony, the Court notes that good moral character does not mean moral excellence. The

record shows that the respondent is a caring person and a good provider for his family. Accordingly,

the Court will find that despite the obvious concerns presented by the DHS the respondent is a

person of good moral character.

EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP

The sole remaining issue is whether the respondent was able to show the requisite hardship

for cancellation of removal. To establish exceptional and extremely unusual hardship, an applicant

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

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 alien's removal, but need not

show that such hardship would be "unconscionable." The hardship must be beyond that which was

required in suspension of deportation cases under former section 244(a)(l) of the Act. Hardship

factors relating to the applicant himself may be considered only insofar as they might affect the

hardship to a qualifying relative. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of

Andazola, 23 I&N Dec. 319 (BIA 2002); Matter ofMonreal, 23 l&N Dec. 56 (BIA 2001).

The Court concludes that based on the totality of the record that the respondent has not

carried his burden of proving that his removal from the United States would result in "exceptional

and extremely unusual hardship" to his qualifying relatives, namely his United States citizen

children and father, and his lawful permanent resident mother as required under section

240A(b)(l)(D) of the Act.

The respondent testified that his children are all generally healthy and all do well in school.

Although the respondent testified that his two older children have breathing problems, he indicated

that they constantly play soccer. The respondent said that his children and their mother would

accompany him to Mexico if he is ordered to leave the United States. Although there will be some

financial and educational adjustment, the family unit will be kept intact. The respondent will return

to a place where he grew up and with which he is familiar and has some relatives. While the

respondent's parents will miss his daily assistance, they have seven other children in the United

States, including six in the Salt Lake City area. The respondent's parents reside with one of his

siblings, so they would not have to change residences or alter their lives dramatically if the

respondent returns to Mexico. Moreover, the respondent's sister also regularly assists his parents

and that assistance would continue even if the other siblings do not offer to help.

After consideration of all the factors of record both individually and cumulatively, the Court

c oncludes that the respondent has not met his burden of proving "exceptional and extremely

unusual hardship" to his qualifying family members in the event of his return or removal to Mexico.

See Matter ofAndazo/a, supra, and Matter of Monreal, supra at 63 (discussing hardship standard

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

where a respondent with a "qualifying child with very serious health issues, or compelling special

needs in school" would be a strong applicant).

For the reasons stated above, the respondent's application for cancellation of removal i s

denied pursuant t o section 240A(b)(l)(D) o f the Act.

VOLUNTARY DEPARTURE

The respondent also sought, in the alternative, post-conclusion voluntary departure under

section 240B(b) of the Act. The respondent's counsel qualified the respondent for this form of

relief. The Court finds that the respondent is eligible for this minimal form of relief.

Based on the foregoing, the Court will enter the following orders:

ORDERS

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

be DENIED.

IT IS FURTHER ORDERED that the respondent be GRANTED Voluntary Dep arture in lieu of
removal and without expense to the United States Government within 60 days of the date of this
decision.

IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in the
amount of $500.00 with the Department of Homeland Security, within five (5) business days from
the date of this order.

IT IS FURTHER ORDERED that if the respondent fails to comply with any of the above orders,
the Voluntary Departure order shall, without further notice or proceedings, vacate the next day and
the respondent shall be removed from the United States to Mexico on the charge contained in the
Notice to Appear.

VOLUNTARY DEPARTURE NOTICES AND WARNINGS TO RESPONDENT

IT IS FURTHER ORDERED: The departure bond for Respondent is set at $500.00. 8 C.F.R.
l 240.26(c)(3)(i).

IT IS FURTHER ORDERED: Respondent must post his bond with the ICE Field Office Director

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

within five (5) business days ofreceiving this order. Id. In the event Respondent files a post-order
motion to reopen or reconsider with this Court, the voluntary departure order shall vacate
automatically and the alternate order ofremoval to Mexico will take effect on the following day. 8
C.F.R. 1240.26(c)(3)(iii). The respondent shall be REMOVED from the United States to Mexico
on the charge contained in the Notice to Appear.

WARNING TO RESPONDENT: IfRespondent appeals this decision to the Board of

Immigration Appeals (BIA), he must submit sufficient proofto the BIA that he paid his bond within
thirty (30) days of filing the appeal, or the BIA will not reinstate the voluntary departure period in
its final order. 8 C.F.R. 1240.26(c)(3)(ii).

WARNING TO RESPONDENT: IfRespondent fails to depart the United States voluntarily

within the time period speci fied, a removal order to Mexico will automatically be entered against
Respondent. Pursuant to section 240B(d) ofthe Act, the respondent will also be subject to a civil
penalty and will be ineligible, for a period often (10) years, to receive cancellation ofremoval,
adjustment ofstatus, registry, voluntary departure, or a change ofnonimmigrant status. 8 C.F.R.
l 240.26(j).

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is
due at the Board ofImmigration Appeals on or before 30 calendar days from the date ofservice of
this decision.

I:.::'.'- C. Anderson
lf.-1
.i .. . . . >'' -1 --;;,.,,, J"dJ'
,t::,
""" ... ..., w. a."'"'
Cf'."O l'l ')""('
_...

-
' !n
()V--
u..... - ri
DATE: -------
Glen R. Baker
Immigration Judge