U.S.

Department of Justice

Executive Office for Immigration Review

Board o_/Immigration Appeals
Office o_fthe Clerk
5107 Leesb11rg Pike. S11i1e 2000
Falls Church. Virgi11111 220,/ l

OHS/ICE Office of Chief Counsel - PHO

P.O. Box 25158
Phoenix, AZ 85002

Name: QUIJADA, JOSE ALFREDO

A 092-041-082

Date of this notice: 2/4/2016

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

Donna Carr
Chief Clerk
I

Enclosure
Panel Members:
O'Herron, Margaret M
Pauley, Roger
Greer, Anne J.

Userteam: Docket

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Cite as: Jose Alfredo Quijada, A092 041 082 (BIA Feb. 4, 2016)

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Wiesinger, Benjamin T., Esquire

Pope & Associates P.C.
320 E. McDowell Road, Suite 220
Phoenix, AZ 85004-1210

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A092 041 082 - Phoenix, AZ

Date:

FEB - 4 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Benjamin T. Wiesinger, Esquire
APPLICATION: Adjustment of status; voluntary departure

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated September 18, 2014, denying adjustment of status W1der section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. 1255(i), and granting volW1tary departure under
section 240B(b) of the Act, 8 U.S.C. 1229c(b). The Department of Homeland Security (DHS)
has not filed a response to the appeal, which will be sustained.
On review, although a close question, after consideration of the record and appellate
arguments, we are persuaded that the respondent has demonstrated eligibility for adjustment of
status under section 245(i) of the Act as a matter of law 1 and discretion. The Immigration Judge
based his denial of adjustment of status solely on his determination that the respondent's 1989
criminal conviction, for which he was placed on probation for 2 years, coupled with the
respondent's unlawful entry into the United States, outweighed the positive equities adduced
(I.J. at 4-5, 8-10). Under the totality of the circumstances, including that DHS has not filed a
response to the appeal, we hold that the respondent has demonstrated eligibility for adjustment of
status as a matter of law and that he merits the same in discretion. Accordingly, the appeal will
be sustained, and the record will be remanded to permit DHS to complete the necessary
background investigation. The following orders will be entered.
ORDER: The respondent's appeal is sustained.

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In re: JOSE ALFREDO QUIJADA a.k.a. Jose A. Quijada

That the respondent is statutorily eligible to adjust his status under section 245(i) of the Act is
not in dispute (I.J. at 3, 8; Tr. at 24, 35-36, 47-48, 62, 72).

v.v.<.Uk l

Cite as: Jose Alfredo Quijada, A092 041 082 (BIA Feb. 4, 2016)

- _::;;;;;

A092 041 082.

FURTHER ORDER: Pursuant to 8 C.F.R. 1 003.l(d)(6), the record is remanded to the

Immigration Judge for the purpose of allowing DRS 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. 1 003.47(h).

2
Cite as: Jose Alfredo Quijada, A092 041 082 (BIA Feb. 4, 2016)

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Board Member Roger A. Pauley respectfully dissents and would affirm the Immigration
Judge's discretionary denial of relief, given (inter alia) the respondent's repeated falsehoods in
his testimony.

'

'

UNITED STATES DEPARTMENT OF JUSTICE

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

QUIJADA, Jose A.
Respondent

)
)
)
)
)
)

IN REMOVAL PROCEEDINGS
FILE NO.:
DATE:

A092-041-082

SEP 1 8 2014

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended, in that the respondent is an alien present in the United States
without being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney General.

APPLICATIONS:

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

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

On Behalf of the Respondent:

John Pope, Esq.
Pope & Associates, P.C.
333 East Virginia Avenue
Suite 21 6
Phoenix, Arizona 85004

On Behalf of the Government:

Cara 0. Knapp, Esq.
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 August 12, 2010, the Department of Homeland Security ("DHS") issued a Notice to
Appear ("NTA") against the respondent, charging him as removable pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or "the Act"), as amended, in
that, at any time after admission, the respondent was convicted of an aggravated felony as
defined in section 101 (a)(43)(N) of the Act, a law relating to an offense described in paragraph
( l)(A) or (2) of section 274(a) of the Act (relating to alien smuggling), except in the case of a
first offense for which the alien has affirmatively shown that the alien committed the offense for
the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other
individual) to violate a provision of this Act; and section 237(a)(2)(A)(iii) of the Act, as
amended, in that at any time after admission, the respondent was convicted of an aggravated
felony as defined in section 101 (a)(43)(U) of the Act, a law relating to an attempt or conspiracy
to commit an offense described in section 101(a)(43) of the Act. [Ex. 1.] In support of this

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IN THE MATTER OF

QUIJADA
A092-041-082

At master calendar proceedings held on March 2, 2011, the respondent, through counsel,
admitted allegations (1), (2), and (3), denied allegations (4) and (5), and denied the two charges
of removability pursuant to section 237(a)(2)(A)(iii) of the Act. [Ex. l.] Based on DHS's
submission of documentation from the United States District Court detailing the respondent's
1989 conviction, the Court sustained allegation (5) in the NTA. [Id] On August 10, 2011, DHS
submitted a Form 1-261, Additional Charges of Inadmissibility/Deportability ("I-261"), charging
the respondent as removable from the United States pursuant to section 237(a)(2)(A)(iii) of the
Act, as amended, in that at any time after admission, the respondent was convicted of an
aggravated felony as defined in section 1Ol(a)(43)(U) of the Act, to wit, conspiracy to commit an
offense described in section 10l(a)(43)(N) of the Act, an offense relating to alien smuggling; and
under 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 this Act or any other law of the United States. [Ex. IA.] At
a prove-up hearing on the same day, the respondent, through counsel, denied these two charges.
[Id.]
DHS filed a second 1-261 on October 12, 2011, charging the respondent as removable
under section 237(a)(l)(C)(i) of the INA, as amended, in that after admission as a nonimmigrant,
the respondent failed to comply with the conditions of the nonimmigrant status in which he was
admitted; and under section 237(a)(l)(E)(i) of the Act, as an alien who (prior to the date of entry,
at the time of any entry, or within five years of the date of any entry) knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in
violation of law. [Ex. lB.] At an individual hearing on May 14, 2012, the respondent, through
counsel, denied the charges in the second 1-261 and admitted allegation (4) in the NTA. [See
Exs. 1, 18.] The following day, on May 15, 2012, during an individual hearing on the matter,
DHS submitted to the Court a third 1-261 and withdrew the two previous 1-261 's filed with the
Court and the charges contained therein. The third I-261 charged the respondent as removable
pursuant to section 212(a)(6)(A)(i) of the Act, as amended, in that the respondent is an alien
present in the United States without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the Attorney General. [Ex. IC.] Further,
in support of this charge, DRS alleged that the respondent: (1) is not a citizen or national of the
United States; (2) is a native and citizen of Mexico; (3) had his status adjusted to that of a
temporary resident on March 9, 1988, under section 210 of the Act; (4) was, on October 30,
1989, convicted in the United States District Court, District of Arizona, for Conspiracy to
Transport and Harbor Illegal Aliens, in violation of 18 U.S.C. 371 and 18 U.S.C.
2

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charge, DHS alleged that the respondent: (1) is not a citizen or national of the United States; (2)
is a native and citizen of Mexico; (3) had his status adjusted to that of a temporary lawful
permanent resident on March 9, 1988, under section 210 of the Act; (4) was, on March 29, 1991,
denied on his application to adjust to a lawful permanent resident; and (5) was, on October 30,
1989, convicted in the United States District Court, District of Arizona, for conspiracy to
transport and harbor illegal aliens, in violation of 18 U.S.C. 371, for which the respondent was
sentenced to two years of probation and two months in a Community Treatment Center. [Id.]

QUIJADA
A092-041-082

On April 12, 2013, DHS filed with the Court a fourth 1-261, which, in addition to the
charge contained in the third I-261, charged the respondent as removable under section
212(a)(6)(E)(i) of the Act, as amended, in that the respondent is an alien who at any time
knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter the
United States in violation of law. [Ex. ID.] In addition, this 1-261 alleged, in lieu of allegation
(3) as set forth in the previous I-261 and in the NTA, that (3) the respondent's status was
adjusted to that of a temporary resident on March 9, 1988, under section 245A of the Act. [Id.]
During that individual hearing, the respondent, through counsel, admitted the newest version of
allegation (3) and denied the charge ofremovability. [Id.] On February 14, 2014, DHS withdrew
the charge ofremovability under section 212(a)(6)(E)(i) of the Act. [Id.] DHS also withdrew the
two charges of removability under section 237(a)(2)(A)(iii) of the Act contained in the NTA.
[Ex. I.]
On February 3, 1998, the respondent's Lawful Permanent Resident ("LPR") wife filed a
Form 1-130, Immigrant Petition for Relative, Fiance(e), or Orphan ("1-130"), with the United
States Citizenship and Immigration Services ("USCIS"), naming the respondent as beneficiary.
[Ex. 7.] The respondent's I-130 was approved on November 20, 2001. [id.] On March 28, 2013,
based upon this approved 1-130, the respondent filed a Form 1-485, Application to Register
Permanent Residence or Adjust Status with the Court, and his priority date is now current. [id]
A number of documents relating to the respondent's case have been entered into the
record as follows: the NTA, issued on August 12, 2010 [Ex. 1]; DHS's first I-261, filed on
August 10, 2011 [Ex. IA]; DHS's second 1-261, filed on October 12, 2011 [Ex. lB]; DHS's third
1-261, admitted into the record on May 15, 2012 [Ex. IC]; DHS's fourth 1-261, filed on April 12,
2013 [Ex. 1 D]; DHS's submission ofevidence, admitted into the record on August 10, 2011 [Ex.
2, Tabs A-D]; DHS's Position Statement Regarding Removability, filed on October 12, 2011
[Ex. 3]; Memorandum of Law from the respondent's counsel, admitted into the record on May
14, 2012 [Ex. 4]; DHS's Response to Respondent's Statement ofPosition, filed on May 14, 2012
[Ex. 5]; DHS's Submission of Evidence, admitted into the record on May 14, 2012 [Ex. 6, Tabs
A-C]; and the respondent's Form 1-485, Application to Register Permanent Residence or Adjust
Status and supporting documents, filed on March 28, 2013 [Ex. 7].

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1324(a)(l )(B) and (C), for which he was sentenced to two years' probation and two months in a
Community Treatment Center; (5) was, on March 29, 1991, denied on his application to adjust to
lawful permanent residence; (6) had his status as a temporary resident terminated on March 29,
1991; (7) last entered the United States at or near an unknown location on or about June 1996;
and (8) was not then admitted or paroled after inspection by an Immigration Officer. [Id.] At the
same hearing, the respondent, through counsel, admitted factual allegations (1) through (8),
conceded the charge of removability under section 212(a)(6)(A)(i) of the Act, and designated
Mexico as the country ofremoval. [Id.]

_u,'

'l
,

QUIJADA
A092-041-082

II.

STATEMENT OF THE CASE

The respondent is a fifty-two-year-old male who is married and has three children, aged
thirty-two, thirty, and nineteen. [Ex. 7.] His wife is a Lawful Permanent Resident, and the
respondent's two younger children are United States citizens. [Id] The respondent first entered
the United States from Mexico in 1981 without inspection or admission. [Ex. 4.] At some point,
the respondent applied for legal permanent residence through the Amnesty Program, and on
March 9, 1988, he was granted a temporary residence card under section 245A of the Act. [Ex.
ID.] Subsequently, the respondent made trips outside the United States and utilized the card to
re-enter the country. The respondent last entered the United States sometime around July 4,
1996. [Ex. 4.] The respondent presented himself at a port of entry at the United States-Mexico
border and attempted to enter the United States using his temporary resident card. However, the
respondent was told that his card was no longer valid and was advised to return to Mexico. The
following day, the respondent walked around the port of entry and entered the United States
illegally. The respondent has since remained in the United States.
On October 30, 1 989, the respondent was convicted, in the United State District Court, of
Conspiracy to Transport and Harbor Illegal Aliens in violation of 18 U.S.C. 371. [Ex. l; Ex. 2,
Tab A.] The respondent conspired with his wife, his mother, his siblings, and other individuals to
"guide and assist citizens and nationals of Mexico, El Salvador and Colombia to enter the United
States illegally near Palominas, Arizona, and then provide transportation for the aliens in
Phoenix, Arizona." [Ex. 2, Tab A.] Further, the group agreed to provide "temporary shelter for
the aliens" throughout the Phoenix area which would serve as "'safe houses' where the aliens
could rest, eat, and contact relatives already in the United States, without being detected by
immigration authorities." [Id. ] Moreover, the respondent and his co-conspirators "charged [the
aliens] substantial sums of money, a portion of which was paid by the aliens' relatives . . .
through Western Union money transfers which the . . . [conspirators] obtained at various
Western Union offices in the Phoenix area." [Id. ] Additionally, upon receiving the fees, the
respondent and his accomplices "would make flight reservations by telephone for the aliens and
transport them from ' safe houses' to Sky Harbor Airport for travel to their final destinations in
the United States." [Id. ]
In furtherance of the aforementioned conspiracy and to accomplish its objectives, the
respondent and one or more of the co-conspirators performed, among others, the following overt
acts in the District of Arizona:
1

The respondent testified through an interpreter in the Spanish language.

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The respondent testified in support of his application for relief at individual hearings held
on May 15, 2012, and February 14, 2014, before this Court. 1 His testimony and the documentary
evidence provided in this matter are summarized below.

,
.

QUIJADA
A092-041-082

10. On August 24, 1 988, . . . [a co-conspirator] directed [the] Special Agent . . . ,

acting in an undercover capacity, not to unload people there, and [the
respondent] then drove his vehicle in front of, and leading, the vehicle driven
by [the] Special Agent . . . .
Id. Additionally, the respondent received at least $3750 in money transfers through Western
Union. Id.
On March 3, 2009, the respondent was convicted of violating 1 8 U.S.C. 371 . As a result
of his conviction, the respondent was placed on probation for a period of two years upon the
condition that the respondent spend two months in a Community Treatment Center and that he
complete a course in English as a second language. [Ex. 2A.] The respondent testified that he
completed the terms of his probation and was removed from probation. [See also Ex. 4.] The
respondent claims that since his conviction, he has not again engaged in assisting aliens to enter
the United States unlawfully.
The respondent is currently employed at Cavco Durango, a mobile home construction
company, and has been an employee there since 1 985. He testified that he is the lead man of his
team and earns fifteen dollars per hour. [See also Ex. 7.]
Ill.

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 1 1 , 2005 date of enactment of the REAL ID Act of 2005, Pub.L. No. 1 09-1 3, 1 1 9 Stat. 23 1
("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
5

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1 . On July 26, 1 988, . . . [the respondent and other conspirators] discussed

smuggling 1 00 El Salvadoran nationals in the United States in groups of 20 at
a time and places available to house them.

Ji)

QUIJADA
A092-041-082

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, 476 F.3d 738, 743 (9th Cir. 2007).
Under the REAL ID Act, even minor inconsistencies can support an adverse credibility
finding. Jibril v. Gonzales, 423 F.3d 1129, 1 138 n. l (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, 6 1 8 (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).
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, 1 1 73 (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 of S-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.
6

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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.

QUIJADA
A092-041-082
B.

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

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
discretion. Id. Generally, without the presence of relevant adverse factors, discretion will
ordinarily favor granting adjustment of status. See Matter ofMendez-Moralez, 2 1 I&N Dec. 296,
300 (BIA 1996).
C.

Voluntary Departure

Section 240B of the Act provides that, at the conclusion of removal proceerungs, a court
may permit an alien to voluntarily depart the United States, at the alien's own expense, if the
alien: (1) 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. 1240.26(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
permitted to depart voluntarily must post a voluntary departure bond "in an amount necessary to
ensure that the alien will depart." INA 240B(b)(3).

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Section 245(i) of the Act provides that an alien who is physically present in the United
States, but who entered the United States without inspection, may adjust status to that of lawful
permanent resident if: (1) he or she is the beneficiary of a visa petition or labor certification that
was filed on or before April 30, 2001; (2) he or she is eligible to receive an immigrant visa; (3)
he or she is admissible to the United States for permanent residence; (4) an immigrant visa is
immediately available to him or her at the time the application is filed; and (5) he or she pays an
$1,000 penalty fee. INA 245(i)(l ), (2). If the applicant's I-130 petition was filed between
January 15, 1998, and April 30, 2001, he or she must have been physically present in the United
States on December 21, 2000, the date of enactment of the LIFE Act Amendments of 2000. See
INA 245(i)(l )(C). The applicant must also warrant a favorable exercise of discretion by the
Court. See INA 245(i)(2) (stating that "the Attorney General may adjust the status of the
alien") (emphasis added).

QUIJADA
A092-041-082
ANALYSIS

A.

Credibility

The respondent filed his initial application for adjustment of status under section 245(i)
of the Act on March 28, 2013 [Ex. 7] ; 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).
The Court finds that the respondent's testimony was consistent both internally and with
the documentation he provided in the application for relief. Overall, the respondent was
responsive to questions, in that the respondent directly and clearly answered every question
posed and responded to inquiries with ample detail. The Court will, accordingly, find the
respondent credible for purposes of this analysis.
B.

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

A Form 1-130, Petition for Alien Relative, was filed on the respondent's behalf on
February 13, 1998, and approved on January 14, 1998. [Ex. 7.] An F2A visa is immediately
available to the respondent, and the respondent has paid the required $1000 penalty fee. [Id.]
Accordingly, the respondent has met the technical requirements to apply for adjustment as a
"grandfathered alien" under INA 245(i). See Landin-Molina v. Holder, 580 F.3d 913, 915 (9th
Cir. 2009) (discussing grandfathering under INA 245(i)). Thus, the only issue that remains is
whether the respondent deserves a grant of relief in the Court's discretion. See INA 245(i)(2)
(stating that "the Attorney General may adjust the status of the alien") (emphasis added).
Adjustment of status under section 245(i) of the Act is a discretionary form of relief.
Matter of Rajah, 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 of Jean, 23 I&N Dec. 373, 383 (A.G. 2002). The Court balances the adverse factors
evidencing the alien's undesirability as a permanent resident with the social and humane
considerations presented on his behalf, to determine whether the granting of relief appears in the
best interest of the country. Matter of Marin, 16 I&N Dec. 581, 584 (BIA 1 978). 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 l&N Dec. 785, 793 (BIA 2009) (internal
citations omitted). Additionally, a criminal history-or lack thereof--is relevant to the exercise
of discretion. Id Generally, without the presence of relevant adverse factors, discretion will
ordinarily favor granting adjustment of status. See Matter ofMendez-Moralez, 21 I&N Dec. 296,
300 (BIA 1996).
8

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IV.

QUIJADA
A092-041-082

Adverse discretionary factors include the respondent's criminal history and his lack of
personal responsibility for his criminal actions. The respondent was convicted, by a jury, of
Conspiracy to Transport and Harbor Illegal Aliens in violation of 18 U.S.C. 371. [Ex. l ; Ex. 2,
Tab A.] Based upon the respondent's flagrant violations of federal law-in entering the United
States illegally, as well as acting as a professional smuggler-the respondent has demonstrated a
profound lack of respect for the laws of the United States. INS v. Rios-Pineda, 471 U.S. 444, 451
(1985) (holding that "while all aliens illegally present in the United States have, in some way,
violated the immigration laws, [courts have] discretion to consider their individual conduct and
distinguish among them on the basis of the flagrancy and nature of their violations"); see also
Arrozal v. INS, 159 F.3d 429, 437 (9th Cir. 1998) (finding that it is proper to consider blatant
disregard of immigration laws for purposes of discretion). Here, the respondent's violations of
immigration laws are particularly flagrant. First, he entered the United States illegally. Then, he
participated in a scheme to smuggle 1 00 El Salvadoran nationals into the United States in groups
of twenty at a time. [Id.] The respondent profited financially from this alien-smuggling scheme.
[Id.] Thus, the respondent's violations of immigration law are particularly grievous offenses and
weigh heavily against the respondent.
It is equally concerning to the Court that the respondent has failed to acknowledge his
crimes, express any sort of remorse for his actions, or establish that he has been rehabilitated in a
meaningful way, despite the passage of a substantial period of time. During his testimony before
this Court on February 14, 2014, the respondent repeatedly failed to take any personal
responsibility for his criminal activity. First, the respondent denied ever being arrested or
convicted of a crime. When directed to his conviction documents, the respondent finally
admitted that he went to trial and was convicted of conspiracy to transport and harbor illegal
aliens. Second, the respondent denied ever receiving money for his participation in the alien
smuggling scheme. However, the conviction documents demonstrate that the respondent
received at least $3750 in money transfers through Western Union. [Ex. 2, Tab A.] Furthermore,
the respondent denied participating in the transport of a group of illegal aliens within the United
States. However, this was the very basis for his conviction. [Id.] The respondent also specifically
denied conspiring to smuggle 100 El Salvadoran nationals into the United States. Again, this was
one the overt acts in furtherance of the conspiracy for which a jury unanimously convicted the
respondent. [Id.] After the respondent's continual denial of his involvement in the conspiracy,
this Court asked the respondent, "Do you deny that you were involved in this scheme in any
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As to positive discretionary factors, the respondent has family ties in the United States
and a long employment history. The respondent has a legal permanent resident spouse and two
United States citizen children. The respondent submitted a letter from his employer, which
confirmed that he has been employed at a construction company since 1 985 and has been a
"valued" and "outstanding" employee. [Ex. 7.] The respondent also testified that he has not
committed any human smuggling acts since 1988. However, he presented no other evidence of
reform or rehabilitation besides his participation in a mandatory Community Treatment Center,
which was court-ordered as part of his sentence. Additionally, he completed a course in English
as a second language.

QUIJADA
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way?" The respondent replied, "I denied it since I was in court with the jury. I've been denying it
since." The respondent also testified that he appealed his conviction, but he was unsuccessful.

C.

Vol untary 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 August 12, 201O; he is and has been a person of
good moral character for at least 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. Further, the Court finds that the
respondent merits such relief as a matter of discretion. To accept voluntary departure, the
respondent must file a $1500 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. 1240.26(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 (10) 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. 1240.26(j). 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. 1 240.26(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
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The respondent's flagrant violations of the federal law, utter lack of remorse or personal
responsibility for his crimes, and failure to establish any strong redeeming factors demonstrate
that a favorable exercise of discretion is not in the best interest of the United States. The Court
finds that the respondent has failed to establish that he warrants a favorable exercise of
discretion. Therefore, as the negative factors present in this case outweigh the positive, the Court
denies the respondent's application for adjustment of status under section 245(i) of the Act, as a
matter of discretion. See Matter of C- V-T-, 22 I&N Dec. at 12.

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V.

CONCLUSION

The Court finds that the respondent is not eligible for adjustment of status under INA
245(i), as a matter o f discretion. The Court additionally finds that the respondent is eligible for
voluntary departure under section 240B 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(i) 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 $ 1 500 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 ( ] 0) years, to receive any fl.1rther
relief under sections 240A, 240B, 245, 248, and 249 of the Act.

SEP 1 8 2014
Date
U.S. Immigration Judge

CERTIFICATE OF SERVICE
Personal Service (P)
Mail )
SERVICE BY:
lXJ Alien's Attorney
[ ] A l ien
t(] OHS
TO:
DATE:
(Comi Staff)
SEP 1S2014 By: oo
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will be automatically terminated, and the alternate order of removal will 1ake 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.