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

DHS/ICE Office of Chief Counsel - PHO

P.O.Box 25158
Phoenix, AZ 85002

Name: SOTO-ENRIQUEZ, GUSTAVO

A 087-274-650

Date of this notice: 8/5/2015

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

DOYlnL- ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015)
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Antonetti, Alina
Alina Antonetti, Atttorney at Law
817 Almeria Avenue
REAR APT
Coral Gables, FL 33134

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A087 274 650 - Phoenix, AZ

Date:

5 2015

AUG

In re: GUSTAVO SOTO ENRIQUEZ

APPEAL
ON BEHALF OF RESPONDENT: Alina Antonetti, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (withdrawn)

Lodged: Sec.

237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l){B)] In the United States in violation of law

APPLICATION: Adjustment of Status; waiver of inadmissibility

The respondent, a native and citizen of Mexico, appeals the hnmigration Judge's May 9,
2014, decision, finding him removable, denying his application for adjustment of status under
section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a), and granting
voluntary departure. The Department of Homeland Security has not responded. The
respondent's appeal will be sustained, and the record will be remanded for updated background
and security checks.
The Board reviews findings of fact under the "clearly erroneous" standard. 8 C.F.R.
1003.l(d)(J)(i); Matter of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002). The Board
reviews questions of law, discretion, and judgment and all other issues in appeals from decisions
of Immigration Judges de novo. 8 C.F .R. 1003.1(d)(3)(ii). Because the application was filed
after May 11, 2005, it is subject to the provisions of the REAL ID Act of 2005.
The respondent concedes that he is removable by virtue of his unlawful presence in the
United States (1.J. at 2; Tr. at 20). The respondent requested the relief of adjustment of status
through the approved Petition for Alien Relative (Form 1-130) filed on his behalf by his United
States citizen spouse.

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IN REMOVAL PROCEEDINGS

In February 2003, the respondent was convicted, pursuant to a guilty plea, for a 1991 offense
of possession of narcotic drugs (Exh. 2, Tab D). For this offense, the respondent was sentenced
to 2 years' probation, restitution, fines and fees (id.). In September 2006, the Superior Court of
Arizona, Maricopa County, set aside the respondent's 2003 judgment of guilt pursuant to
ARIZONA REVISED STATUTES ANNOTATED 13-907 (Exh. 3).

Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015)
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A087 274 650

Upon our de novo review, we disagree with the Immigration Judge's denial of adjustment of
status as a matter of discretion. Before adjustment of status may be granted, an applicant bears
the burden of demonstrating that he merits relief as a matter of discretion. See Matter of Arai,
13 I&N Dec. 494, 496 (BIA 1970); Matter of Blas, 15 l&N Dec. 626 (BIA 1974; A.G. 1976).
The "extraordinary discretionary relief' of adjustment "can only be granted in meritorious
cases." Id. at 630. Generally, the existence of favorable factors such as family ties, hardship,
length of residence in the Unites States, etc., will be considered as countervailing factors
meriting favorable exercise of administrative discretion. Matter of Arai, supra, at 496.
However, where adverse factors are present, it may be necessary for the alien to present evidence
of unusual or even outstanding equities to outweigh the negative factors. Id.
The Immigration Judge considered that the respondent's favorable factors including his
residence in the United States since 1988 and his family ties, including his United States citizen
wife and child (I.J. at 7-8). The Immigration Judge also considered as a favorable factor the
respondent's support of his wife while she completes pharmacy school (I.J. at 8).
The Immigration Judge based his denial of adjustment as a matter of discretion solely on his
conclusion that the respondent lacked credibility because his testimony conflicted with a 2003
pre-sentence investigation regarding his 1991 offense prepared by a probation officer for the
state criminal court indicating that in late 1991 and early 1992 he sold cocaine to an undercover
police officer (1.J. at 7-8; Tr. at 39, 45-50; Exh. 2, Tab E;). "While inquiry may be had into the
circumstances surrounding the commission of the crime in order to determine whether a
favorable exercise of discretion is warranted, it is impermissible to go behind a record of
conviction to reassess an alien's ultimate guilt or innocence." Matter of Roberts, 20 I&N
Dec. 294, 301 (BIA 1991). Just as we will not go behind a record of conviction to determine the
guilt or innocence of an alien, so we are hesitant to give substantial weight to a pre-sentence
investigation, prepared more than 10 years after the event, absent a conviction for the crime
alleged or corroborating evidence of the allegation contained therein. See Matter ofArreguin,
21 l&N Dec. 38, 42 (BIA 1995) (declining to give substantial weight to an arrest report, in the
absence of a conviction or corroborating evidence, in considering an exercise of discretion).
Here, the applicant conceded that he had committed a crime and made restitution almost 25 years
ago. He stated that, at the time, he was unable to speak English and, therefore, was unable to
communicate with the police officer (Tr. at 41). Moreover, even assuming he sold cocaine as
asserted in the presentence report, his testimony is undisputed that he has had no adverse contact

2
Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015)
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The Immigration Judge determined that the respondent's 1991 conviction fell within the
Federal First Offender Act (FFOA), protecting the respondent against the adverse immigration
consequences of a one-time simple drug possession. See Lujan-Armendariz v. INS, 222 F.3d 728
(9th Cir. 2000) (holding that federal drug convictions expunged under the FFOA, 18 U.S.C.
3607, cannot be used for immigration purposes and no rational basis exists for denying relief to
"identically situated aliens who qualify for similar treatment under state expungement laws"),
overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (holding only applies
prospectively).

A087 274 650

with law enforcement,' to include a traffic ticket, since that time (Tr. at 50, 53). 1 Under these
circumstances, we conclude that the respondent merits adjustment of status in discretion, and we
will remand the record for the required background and security updates.
ORDER: The respondent's appeal is sustained.

FOR THE BOARD

'<

We observe that the DHS did not oppose a grant of relief (Tr. at 55).

3
Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015)

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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. I 003 .47(h).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
200 EAST MITCHELL DRIVE, SUITE 200
PHOENIX, ARIZONA 85012

SOTO-ENRIQUEZ, Gustavo
Respondent

IN REMOVAL PROCEEDINGS

)
)
)
)
)
)

FILE NO.:

A087-274-650

DATE: "1A1

.. 9 tflf4

CHARGE:

Section 237(a)(l)(B) of the Immigration and Nationality Act, in that after

admission as a nonimmigrant under IOI(a)(IS) of the Act, the respondent
remained in the United States for a time longer than permitted in violation
of the Act or any other law of the United States.

APPLICATION:

Adjustment of Status under section 245(a) of the Act

Voluntary Departure under section 240B(b) of the Act

On Behalf of the Respondent:

Emilia C. Banuelos, Esq.
Banuelos Law Offices, Inc.
6816 North 27th Avenue
Phoenix, Arizona 85017

On Behalf of the Government:

Cara 0. Knapp
Assistant Chief Counsel
Department of Homeland Security
2035 North Central Avenue
Phoenix, Arizona 85004

DECISION AND ORDER OF THE IMMIGRATION COURT

I.

PROCEDURAL HISTORY

On January 5, 2009, the Department of Homeland Security ("DHS") issued a Notice to

Appear ("NTA") against the respondent, charging him as removable pursuant to section
2 12(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "the Act"), as amended, as an
alien present in the United States without being admitted or paroled, or who has arrived in the
United States at any time or place other than designated by the Attorney General. [Ex. l.] In
support of this charge, OHS alleged that the respondent: (1) is not a citizen or national of the
United States; (2) is a native and citizen of Mexico; (3) entered the United States at or near El
Paso, Texas, on or about August 27, 1988; and (4) was not then admitted or paroled after
inspection by an Immigration Officer. (Id]

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IN THE MATTER OF

At master calendar proceedings held on July 22, 2009, the respondent, through counsel,
admitted allegations (1) through (3) in the NTA, denied allegation (4), and denied the charge of

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SOTO-ENRIQUEZ.
A087-274-650

On March 24, 2010, the respondent, through counsel, indicated that he wished to
schedule an individual hearing to demonstrate the respondent's eligibility for cancellation of
removal, as the respondent was still having difficulty locating his 1-94. At this hearing, DHS also
indicated that the respondent had a criminal history that could affect his eligibility for relief.
DHS submitted the respondent's criminal records on June 9, 2010. [Ex. 2.]
The respondent never submitted an application for cancellation of removal. Instead, at the
individual hearing on November 4, 2013, the respondent, through counsel, submitted a Form 1485, Application to Register Permanent Residence or Adjust Status, which included evidence of
a legal entry into the United States on October 1, I 988. [Ex. 5.] Based on the evidence of a legal
entry, DHS submitted a Form I-261, Additional Charges of Inadmissibility/Deportability, in lieu
of the NTA. [Ex. IA.] In the Form 1-261, DHS lodged an amended charge against the
respondent, charging him as removable pursuant to section 237(a)(l )(B) of the Act, as amended,
in that after admission as a nonimmigrant under section 10l(a)(l5) of the Act, the respondent
remained in the United States for a time longer than permitted, in violation of the Act or any
other law of the United States. [Id] In support of this charge, DHS alleged that the respondent:
(I) was admitted to the United States at an unknown place on or about August 27, 1988, as a
border crosser or nonimmigrant visitor at a Mexican border port of entry for a temporary period
not to exceed seventy-two hours to visit in the area within twenty-five miles of the United States
border with Mexico; (2) was encountered on or about December 16, 2008, at Phoenix, Arizona, a
distance more than twenty-five miles from the United States border with Mexico; and (3) has not
received the permission of an immigration officer to proceed beyond that twenty-five mile limit
or seventy-two-hour period. The respondent admitted these allegations and conceded the charge
pursuant to 237(a)(l)(B) of the Act.
The respondent testified in support of his applications for relief at an individual hearing
held on November 4, 2013, before this Court. A number of documents relating to the
respondent's case have been entered into the record as follows: the NTA, issued on January 5,
2009 [Ex. 1]; a Form I-261, Additional Charges of Inadmissibility/Deportability, submitted on
November 4, 2013 [Ex. I A] ; DHS's Submission of Evidence, submitted on June 9, 2010 (Ex. 2,
I

The respondent testified through an interpreter in the Spanish language for the majority of his testimony. However,
the respondent chose to finish his testimony in the English language, as he also speaks English fluently and was
having difficulty waiting for the interpreter to complete her interpretations before he could respond.

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removability pursuant to section 212(a)( 6)(A)(i) of the Act. The respondent, through counsel,
designated Mexico as the country of removal. The respondent, through counsel, indicated that he
legally entered the United States in 1988 with a Form I-94, Arrival/Departure Record, but the
respondent was having difficulty locating the document. The respondent, through counsel, also
indicated that he would be seeking the relief of adjustment of status under section 245(a) of the
Act upon obtaining proof of legal entry. Alternatively, the respondent, through counsel, indicated
that he would be seeking relief in the form of cancellation of removal or voluntary departure.
The Court reset proceedings to allow the respondent time to locate his I-94.

SOTO-ENRIQUEZ
AU87-274-650

II.

STATEMENT OF THE LAW

A.

Credibility

As an initial matter in determining whether an applicant meets the statutory criteria for
any of the forms of relief he or she may request, the Court must make a threshold determination
regarding the credibility, persuasiveness, and factual basis of the applicant's testimony. INA
240(c)(4)(B). If an applicant filed his or her application for relief from removal on or after the
May 11, 2005 date of enactment of the REAL ID Act of 2005, Pub.L. No. 1 09- 1 3, 1 1 9 Stat. 231
("REAL ID Act"), this credibility determination is governed by the REAL ID Act provisions
regarding credibility. The INA provides that the credibility of a witness is assessed in the
following manner:
Considering the totality of the circumstances, and all relevant factors, the
immigration judge may base a credibility determination on 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 each such statement, 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).
Relevant factors as to a witness's demeanor include his or her expressions, the way the
witness sits or stands, nervousness, coloration, and modulation or pace of speech. See
Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003). In addition, the following factors
may support an adverse credibility finding: an applicant's inability to provide sufficiently
detailed testimony, Unuakhaulu v. Gonzales, 416 F.3d 931, 938 (9th Cir. 2005) (holding that the
court properly considered the applicant' s "'meager and nonspecific "' testimony); evasive
testimony, Wang v. INS, 352 F.3d 1250, 1256 (9th Cir. 2003); and testimony that is implausible,
Don v. Gonzales, 416 F.3d 738, 743 (9th Cir. 2007).
Under the REAL ID Act, even minor inconsistencies can support an adverse credibility
3

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Tabs A-E]; a Judgment of Guilt Set Aside, submitted on July 7, 201 0 [Ex. 3]; the respondent's
supporting documents, submitted on July 5, 2011 [Ex. 4]; and a Form 1-485, Application to
Register Permanent Residence or Adjust Status, with supporting documents and a Form I-601,
Application for Waiver of Grounds of Inadmissibility, submitted on October 29, 2013 [Ex. 5,
Tabs A-E].

 /'

'(

SOTO-ENRIQUEZ
A087-274-650

The applicant's testimony alone may be sufficient to sustain his or her burden of proof
without corroboration "if it is demonstrably credible, persuasive, and probative of facts
sufficient" to support the applicant's claim. Matter ofJ- Y-C-, 24 I&N Dec. 260, 263 (BIA 2007).
If the applicant's testimony is found to be credible, the Court will weigh the testimony with other
evidence in the record. INA 240(c)(4){B). However, if the Court determines that corroborative
evidence should be produced, it "must be provided unless the applicant does not have the
evidence and cannot reasonably obtain the evidence." Id ; see also Singh v. Holder, 649 F.3d
1161, 1173 (9th Cir. 2011) (noting that the failure to produce readily available evidence may
support an adverse credibility determination under the REAL ID Act credibility language,
superseding previous Ninth Circuit case law); Unuakhaulu, 416 F.3d at 938 (holding that an
applicant may be found not credible "where the IJ has reason to question the applicant's
credibility, and the applicant fails to produce non-duplicative, material, easily available
corroborating evidence and provides no credible explanation for such failure") (internal
quotations omitted). Thus, an applicant for relief should provide evidentiary support for
"material facts which are central to his or her claim and easily subject to verification." Matter of
J- Y-C-, 24 I&N Dec. at 263 (quoting Matter ofS-M-J-, 21 I&N Dec. 722, 725-26 (BIA 1997)).
The failure to produce such reasonably available corroborating evidence can lead to a finding
that the applicant has failed to meet his or her burden of proof. Id
B.

Adjustment of Status under Section 245(a) of the Act

Section 245(a) of the Act provides for the adjustment of status of an alien who was
inspected and admitted or paroled into the United States, on a discretionary basis, if: (1) the alien
makes an application for adjustment; (2) an immigrant visa is immediately available to the alien
at the time his or her application is filed; and (3) the alien is eligible to receive an immigrant visa
and is admissible for permanent residence. INA 245(a). If the alien has not been "inspected and
admitted or paroled into the United States," the alien is not eligible for adjustment of status under
245(a) unless he or she qualifies for the special provisions under the Violence Against Women
Act ("VA WA"). Id
In determining whether a favorable exercise of discretion is warranted in granting
adjustment of status, courts will look to a number of equitable factors. Such factors "include, but
are not limited to, the existence of family ties in the United States; the length of the respondent's
residence in the United States; the hardship of traveling abroad; and the respondent's
immigration history, including any preconceived intent to immigrate at the time of entering as a
nonimmigrant." Matter of Hashmi, 24 I&N Dec. 785, 793 (BIA 2009) (internal citations
omitted). Additionally, a criminal history-or lack thereof.-is relevant to the exercise of
4

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finding. Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005). For purposes of an adverse
credibility determination, the applicant must be given an opportunity to explain or deny any
discrepancies or inconsistencies, and the Court must consider the applicant's reasonable and
plausible explanations. Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004); Singh v. Gonzales,
439 F.3d 1100, 1105 (9th Cir. 2006); Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).

SOTO-ENRIQUEZ
A:087-274-650.

C.

Voluntary Departure

Section 240B of the Act provides that, at the conclusion of removal proceedings, a court
may permit an alien to voluntarily depart the United States, at the alien's own expense, if the
alien: (I) has been physically present in the United States for a period of at least one year
immediately preceding service of the notice to appear; (2) is and has been a person of good
moral character for at least five years; (3) is not deportable under 237(a)(2)(A)(iii) (as an
aggravated felon) or 237(a)(4) (on security or related grounds); and (4) has established by clear
and convincing evidence that he or she has the means to depart the United States and intends to
do so. Under 8 C.F.R. 1 240.26(c)(2), "clear and convincing evidence of the means to depart
shall include in all cases presentation by the alien of a passport or other travel documentation
sufficient to assure lawful entry into the country to which the alien is departing." An alien
pennitted to depart voluntarily must post a voluntary departure bond "in an amount necessary to
ensure that the alien will depart." INA 240B(b)(3).
Ill.

ANALVSIS

A.

Credibility

The respondent filed his adjustment of status application on November 4, 20 1 3; therefore,

his claim is governed by the REAL ID Act. See REAL ID Act (stating that the REAL ID Act
applies to requests for relief filed on or after the May 1 1, 2005 date of enactment).
Under the REAL ID Act credibility standard, the Court finds that the respondent has not
provided credible testimony. The respondent provided inconsistent testimony regarding his
participation in the sale of drugs. During direct examination, the respondent repeatedly stated
that he never sold drugs and, more specifically, that he never sold drugs to a police officer. The
respondent also initially claimed that only his friend Jose Catano-Beltran ("Beltran") sold drugs.
However, during cross-examination, the respondent admitted that he acted as the middle man
between Beltran and an undercover police officer who was acting as a buyer. Although the
respondent was initially evasive when questioned regarding the events discussed in his
Presentence Investigation, he ultimately admitted that he had, in fact, sold cocaine to an
undercover officer on November 27, 1 99 1 , December 1 3, 1991, and January 7, 1 992.
Moreover, the Court finds it implausible that the respondent never received any money
for helping Beltran sell drugs, as he claims. Furthermore, such claims are directly contradicted
by the record. The respondent testified that he never benefited nor expected to benefit monetarily
from helping Beltran; rather, the respondent claims that he only acted as a middle man during
5

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discretion. Id Generally, without the presence of relevant adverse factors, discretion will
ordinarily favor granting adjustment of status. Matter ofMendez-Moralez, 2 1 I&N Dec. 296, 300
(BIA 1 996).

SOTO-ENRIQUEZ .
A087-274-650'

The Court finds that the respondent's testimony lacked the "requisite ring of truth" to it
due to the inconsistent and implausible testimony discussed above. See Kaur v. Gonzales, 418
F.3d 1061, 1 067 (9th Cir. 2005) (internal quotations omitted). Accordingly, the Court finds that
the respondent has not provided credible testimony and, therefore, enters an adverse credibility
finding.
B.

Adjustment of Status under Section 245(a) of the Act

Section 245(a) of the Act provides for the adjustment of status of an respondent inspected
and admitted or paroled into the United States if the respondent: (1) has made an application for
adjustment; (2) an immigrant visa is immediately available to the respondent; (3) the respondent
has demonstrated eligibility to receive that visa and admissibility for permanent residence; and
(4) the respondent warrants a favorable exercise of discretion.
1. Statutory Requirements
The respondent has made an application for adjustment of status, and an immigrant visa
is immediately available to him as the spouse of a United States citizen. [Ex. 5, Tabs A-B.] The
respondent has also provided proof of a legal entry in 1 988. [Ex. 5, Tab C.]
Although the respondent plead guilty to Possession of Narcotic Drugs in 2003 [Ex. 2], his
judgment of guilt was set aside on September 22, 2006 [Ex. 3]. Therefore, the Federal First
Offender Act applies, protecting the respondent against adverse immigration consequences
6

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Beltran's drug transactions because he liked Beltran and wanted to help him out. The respondent
further testified that he never told anyone that the reason he was helping Beltran was to earn
extra income because he was working at Panda Express, a fast-food chain, at that time and did
not need the extra money. However, the Presentence Investigation contradicts the respondent's
testimony. [See Ex. 2, Tab E.] The Presentence Investigation states that upon questioning, the
respondent told a police officer that he was going to receive $100 from one of the drug
transactions and that he was helping Beltran sell the drugs to ''make extra money." [Id] Further,
the respondent later testified that he was not earning much money at Panda Express, which is
why he could not afford to pay an attorney to continue working on his criminal case in 1993. The
Court finds the information contained in the Presentence Investigation to be more credible than
the respondent's assertion that as a twenty-three-year-old man with a low-paying job, he
expected nothing in return for helping Beltran sell drugs, other than Beltran's friendship. See
Chebchoub v. INS, 257 F.3d 1038, 1044 (9th Cir. 2001 ) (holding that testimony that is
"implausible in light of background evidence" can support an adverse credibility finding),
abrogated by statute on other grounds as stated in Shrestha v. Holder, 590 F.3d 1034, 1046 (9th
Cir. 2010); see also Jibril v. Gonzales, 423 F.3d 1 129, 1 135 (9th Cir. 2005) ("Although
'speculation and conjecture' alone cannot sustain an adverse credibility finding, an IJ must be
allowed to exercise common sense in rejecting a petitioner's testimony even if the IJ cannot
point to specific, contrary evidence in the record to refute it.").

SOTO-ENRIQUEZ
A087-274-650

Thus, the respondent is statutorily eligible for adjustment of status under section 245(a)
of the Act. The only remaining issue is whether he warrants a favorable exercise of discretion.
2. Discretion
Adjustment of status under section 245(a) of the Act is a discretionary form of relief.
Matter ofRajah, 25 I&N Dec. 127, 134 (BIA 2009). In making discretionary determinations, the
Court weighs the favorable and adverse discretionary factors to decide whether, on balance, the
totality of the evidence indicates that the respondent warrants a favorable exercise of discretion.
Matter ofJean, 23 l&N Dec. 373, 383 (A.G. 2002).
Considerations that may support a favorable exercise of discretion by the Court include,
but are not limited to, evidence of long-time residence, young age at entry, other family ties in
the United States, service in the United States armed forces, evidence of value and service to the
community, evidence of any genuine post-conviction rehabilitation, and a history of
employment, property, or business ties within the United States. C- V-T-, 22 l&N Dec. at 11.
Negative considerations include evidence of a respondent's bad character or undesirability as a
permanent resident of the United States, including the nature and underlying circumstances of
the grounds of inadmissibility or removability that are at issue, the presence of additional
significant immigration violations, and the nature, recency, and seriousness of a respondent's
criminal record. Id
First, when looking at the negative factors present in the respondent's case, the Court has
found that the respondent did not provide credible testimony. The respondent has not been
forthright with the Court regarding his involvement in the sale of cocaine. Although the
respondent's arrest occurred over twenty years ago, in 1991, the respondent continues to deny
culpability for his actions. The respondent refuses to admit that he expected to receive money in
exchange for helping his friend sell drugs, and he places all of the blame for his mistakes on
Beltran.
The positive factors in the respondent's case include the respondent' s long-time residence
in this country and his familial ties to the United States, including a United States citizen wife
7

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because his first-time simple possession drug offense was expunged. See Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
20 11) (holding that equal protection did not require treating expunged state convictions of drug
crimes the same as federal drug convictions that had been expunged under the Federal First
Offender Act). Although the Ninth Circuit held in Nunez-Reyes that Federal First Offender Act
protections do not extend to first-time simple drug possession offenses expunged under a state
rehabilitative statute, that rule applies only prospectively. Nunez-Reyes, 646 F.3d at 690-94.
Therefore, because the respondent's state expungement occurred in 2006, five years before the
Nunez-Reyez holding, his Possession of Narcotic Drugs offense does not count against him as a
conviction for inadmissibility purposes.

SOTO-ENRIQUEZ
A087-274-650

and child. The Court can also assume that the respondent provides support to his wife, whether it
be emotional or financial, while she is completing pharmacy school.

C.

Voluntary Departure

The Court finds that the respondent is eligible for the relief of voluntary departure under
section 240B of the Act. He was physically present in the United States for over one year
preceding service of his notice to appear on January 5, 2009, he is and has been a person of good
moral character for the past five years, he is not deportable under sections 237(a)(2)(A)(iii) or
237(a)(4) of the Act, and he has established by clear and convincing evidence that he has the
means to depart the United States and intends to do so. To accept voluntary departure, the
respondent must file a $750 bond with DHS's ICE Field Office Director within five (5) business
days from the date of this order, and must depart the United States within sixty (60) days from
the date of this order.
NOTICE: The respondent's failure to post the required voluntary departure bond within the time
required does not terminate the respondent's obligation to depart within the period allowed, nor
does it exempt the respondent from the consequences of failing to depart voluntarily during the
period allowed. 8 C.F.R. 1 240.26(c)(4). If the respondent fails to depart the United States in
accordance with these conditions, the respondent will be subject to a civil penalty of $5000 and
shall be ineligible, for a period of ten (I0) years, to receive any further relief under sections
240A, 240B, 245, 248, and 249 of the Act. See INA 240B(d); 8 C.F.R. 1240.26G). The
respondent may choose to decline the Court's grant of voluntary departure if the respondent is
unwilling to accept the amount of the bond or the other conditions. 8 C.F.R. 1240.26(c)(3).
WARNING: Should the respondent choose to file an appeal of this Court's order with the Board
of Immigration Appeals, the respondent must, within thirty (30) days of filing an appeal with the
Board, submit sufficient proof of having posted the required voluntary departure bond. 8 C.F.R.
1240.26(c)(3)(i). If the respondent does not provide timely proof to the Board that the required
voluntary departure bond has been posted with DHS, the Board will not reinstate the period of
voluntary departure in its final order. Id.
WARNING: If the respondent files with this Court a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure, the grant of voluntary departure
8

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However, when weighing the favorable and adverse factors in the respondent's case, the
Court cannot find that he warrants a favorable exercise of discretion. The fact that the respondent
did not provide credible testimony is a large factor weighing against an exercise of discretion in
his favor. Moreover, the respondent's inability to take responsibility for his past mistakes makes
him undesirable as a permanent resident of the United States. Thus, the Court finds that the
respondent has failed to establish that he merits relief in the Court' s discretion. Matter of C-V-T-,
22 I&N Dec. at 1 2. The Court will, therefore, deny the respondent's application for adjustment
of status under section 245(a) of the Act as a matter of discretion.

SOTO-ENRIQUEZ
A07-274-650

IV.

CONCLUSION

The Court finds that the respondent is not eligible for adjustment of status under section
245(a) of the Act as a matter of discretion. The Court additionally finds that the respondent is
eligible for voluntary departure under section 2408 of the Act and concludes that he merits
voluntary departure as a matter of discretion.
Accordingly, the following orders shall be entered:
ORDERS:

IT IS ORDERED THAT the respondent' s application for Adjustment of

Status pursuant to section 245(a) of the Act is DENIED.
IT IS FINALLY ORDERED THAT the respondent be granted the
privilege to voluntarily depart the United States within sixty (60) days
from the date of this order. The respondent is required to file a $750 bond
with the Department of Homeland Security within five (5) business days
from the date of this order. Should the respondent fail to leave as and
when ordered, this order shall automatically become an order of removal
from the United States to Mexico upon the charge contained in the NTA.
Furthermore, the respondent will be subject to a civil penalty of $5000,
and shall be ineligible, for a period of ten ( 1 0) years, to receive any further
relief under sections 240A, 2408, 245, 248, and 249 of the Act.

WendellA.Hollis'
U.S. Immigration Judge

Date
CERTIFICATE OF SERVICE __//./
SERVICE BY:
Mail (JIPf
[]A
DHS
TO:
. B
DATE:

1 1 ,:3'D---...LAJA

sonal Service (P)

Alien's Attorney
(Court Staff)
9

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will be automatically terminated, and the alternate order of removal will take effect immediately.
8 C.F.R. 1 240.26(b)(3)(iii). The penalties for failure to depart voluntarily under section
240B(d) of the Act will not apply if the respondent has filed a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure. Id