Hector Diaz-Mendoza, A044 371 296 (BIA May 23, 2011)

8/13/2019 Hector Diaz-Mendoza, A044 371 296 (BIA May 23, 2011)

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Moreno, Jose G, EsquireAorney at Law747 E. San Antono Steet Sute 100El Paso TX 79901-2557

Name: DIMENDOZ HECTOR

Department of Justice

Executive Oce r Immraion Revew

B Immg ApplsOc h Clk

507 Leesburg Pike, Suite 2Fall Chch Vgina 224

HS/ICE Oice of Chief Counsel ELP1545 Hawkins BlvdEl Paso TX 79925

A044371-296

ate of ths notice 5/23/2011

Encosed is a copy of the Board's decson and order in he above-rerenced case.

Encosure

Panel Mebers:Co, Ay ogrWendtand Linda S

Sncerely,

Donna arref lerk

Cite as: Hector Diaz-Mendoza, A044 371 296 (BIA May 23, 2011)

For more unpublished BIA decisions, visit www.irac.net/unpublished


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S Department of JusticeExecutive Oce r Immigraon Revew

Decison of he Board o mmaion Appeals

Fas Chrch, irgna 22041

File: A044 371 296 - El Paso, T

In re HECTOR DIAZ-MENDOZA

N REMOVAL PROCEEDINGS

APPEAL

Date

ON BEHAF OF SPONDENT ose G. Moren, Esquire

ON BEHALF OF DHS:

CHRGE:

Danie EstavieAssisan Chief Cse

MAY 2 3 01

Noice Sec 2 2(a)(2)(A)(i)(I), I&N Act 8 USC l 82(a)(2)(A)(i)(I)] Crime involving mora rpitude

APPLICATION Waiver of iadmissibiity

The responde, a natie and citize of Mexico, appeas he Imiaion Jdge's September 4,200, decision denying his reqes r discretiona reief nder er section 22(c) of heImmigraon and Naioaliy Ac, 8 U.SC 82(c ), and oves o remand to alow e mmgraionCour o consider additioal evidence The appea wi be ssained and he record remanded

As he respondens removabiity d eigibiity r a secion 22(c) waiver is o in dispue, hesoe quesion n appeal is whether he meris this of relief in the exercise f discreion Thegrant f a secion 212(c) waiver requires a baancing of adverse facors evidencing te respndentsndesirabily as a permaen resident wih he scial and hane consideraions presented on hisbehalf deemine whether te granting of a waiver appears in e best interests of this contySee Matter of Marin, 16 &N Dec 58, 584 (BIA 178) We review discretona deteinationsde novo, bu he ctua ndings nderlying those judens are reviewed r cle eor 8 C R 1003 (d)(3)(i), ii).

We nd orseves uabe o meaningfuly review he Imigation udge's discretionadgment n the presen recor Ahogh he Iigraion Jdge enered a mber of ingsearig o discreion, he id o address severa impo cors h he speciciy ey reqireThe Immigraio dge noed in passing ha oe f he respondens children "has medica concesand probems (J at 8), bt he did not make ay ndings as o the atre or severty of hoseprobems, ad did no discuss what eect (if ay) the responden's remova wd have on hechds heah, despite he exisence of record evidence bearig on tha qesin (Grop Exh 3A,Tab A) That omission is probemaic because sch heah cnsiderations can be very signicaeqitabe cnsiderains, ye his Board is no peited o make nngs regarding such maers8 CFR 1003(d)(3)(iv)



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A44 37 9

Frther he Igaton Jdge eceved the espondents aest evdenta ng oents aedeveng the oa decson on Septeber 14 9 ( a 5964) Accodng to the Recod, onSeptebe 2 9 he espondent ed a oon eave o e addtona docens ae theAgst 14 29 ng deadne ehe the Igraton Judge nor the respondent reazed the

docents wee oted o he Recod nt ae the Igraton Jdge endered hs oradecson at whch pont soeone o he cot sta deveed he oton o he aton Judgeheree he graton Jdge dd not e on he oon o consder he evdence becase heevdence was no bee h We concde hat t was eo he Igaton Jdge o aord noconsdeaton to he espondents Septebe 9 oton and evdentary ng whch ncded,nter a/a poentay-sgncant docmenaon conceng he edca condton of hs nor sonAccodngy, the ecod w be eanded to he Igraton Jdge r consderaton of the ostrecent evdenay sbsson addtona ct ndng and r the enry of a new decson Matterof -H 3 I& Dec 46 465 B ) (If ncopete ndngs of fact are entered and heIaon dges decson aey cannot be aed on the bass that he o she decded hecase a eand of he case r her ctndng ay be navodabe On reand he

Iaton Jdge shod eceve consder and addess any and a eevan evdence bearng onhe dscetonay cacs

ORDER he espondens appea s ssaned, he Immgaon Jdges Sepebe 14 9decson s vacaed n pa, and the ecord s eanded r ther poceedngs consstent wh theegong oder and en of a new decson

2



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UNITED STATES DEPARTMENT O JUSTICEEXECUTIVE OICE OR IMMITON REVIEW

ITED STATES IMMIGRATION COURTEl Paso Texas

ile No. A 044 31 296 Sepember 14 2009

In he Maer o

HECTOR DIAZ-MENDOZA IN RMOVAL PROCEEDINGS

Responden

CHRGE Secion 212 (a) (2) (A) (ii) o he Ac - alienconviced o a crime involving moral urpiude.

APP LICATIONS: A waiver pursuan o he ormer 212 (c) o heImmigraion and Naionaliy Ac.

ON BEHAL O RESPONDENT

Jose Moreno, Aorney

El Paso, TX

ON BEHAL O HS

Daniel saville

Assisan Chie CounselEl Pso TX

OL DECISION OF THE IMMIGTION JUDE

The responen is a 3-year-old single male naive and

ciizen o Mexico. He was serve wih a Noice o ppear on June

5 200 Exhibi 1 The Noice o Appear charges ha he

esponen s eove ne Secon 212{a {2 (A (ii o he Ac

in h he is an alien who hs een convice o crime

involving oral urpiue The responen has admied he

acual allegaions in he Noice o Appear an conceded ha he

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s removable Further support o the alegatos ad charge

the Govermet sbmtted a covcto documet, Exhbt 2 or

the respodet's covcto or cospracy to commt a eloy,

grad larcey a eloy he Cort s satsed, based o the

admssos o behal o the respodet as well as te Cort's

revew o Exhbt 2 te covicto docmet that te respodet

s removable as charged ad the Cort so does d Mexco wll

be desgated as the cotry o remova

Te respodet as appled or a waver prsat to the

ormer 212 (c) secto o te mmgrato ad Natoalty Act

The ssue beore the Cort today s hs elgblty or these

orms o rele

SAEMENT OF FACTS

he Notce to Appear as been arked ad admtted as

Exhbt 1. Addtoaly the ollowg docmets have bee

markd ad receved to evdece Exhbt 2 was the covcto

rom the Seeth Judcal strct Cort the state o yog

Exhbt 3 ws the Form -191 applcato or advace permsso

to retr to urelqshed domcle Exhbt 3A was a grop

exhbt o spportg documetato or that applcato

Te respodet was the sole dvdua testyg spport

o hs applcato Hs testmoy s summarzed as ollows

Respodet states that he ves Albuqerqe, New Mexco wth a

A 3 296 2 September 14, 29


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illegal acivi log wih wo rieds i Womig Accordi o

respoden, he pled guil served approximel oe moh i

jail d he was on wo ears probio. Respoden saes he

has o had oher problems wih he law.

Respode ses ha in his ime ha he is o working

ha he is ivolved wih aciviies o iclude his church; o

iclude also beig ivolved wih helpig idividuals do varios

obs o iclude paiig heir residence wihou seekig pa

Accordig o he respoden, since his arres he hs been a

chaged perso

The Goverme hen iqired o he respode, and he

respode coirmed ha he id aemp o seal a Ford ruck

wih wo oher rieds. According o he respode, his oher

riends ma have had more experience wih sealing a vehicle

sice he had ools wih which o do so Apparel, he

reaso i pr, o sel he vehicle was because hey were i a

se ha he did o live i d he eeded wa o geig

ransporaio back o heir home sae.

According o he respode, he is o sre ha he i

ac, iormed he sae o Womig ha he leha sae aer

servig a shor ime i jail, eve hough he convicion recor

idicaes here ws a period o wo ers probaio

According o he respoe, he has was paid his xes.

A 44 37 296 4 Sepember 4 29


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urher respoe saes ha he legalze hs saus o ha

o a lawul permae resie beore eerig he Uie Saes

Th Cour he iquire o he respoe rs he Cour

brough o he respoes aeio ha i was cocere ha

Exhib 3 appeare o is ace o be wholy eice Quesio

3 ealg wih amssios is compleely blak Queso 4

ealg wih seve years resecy i he Uie Saes oly

sars a Sepember 2 6 hree years isea o seve Queso

5 ealg wih emploe or he las seve years s blak. he

respoe saes ha he shoul have bee more lge

compleg he orm ha was require as par o his rele

requese beore his Cour

The respoe oes ackowlege ow ha he has bee ousie

he coury o umerous a various occasos o iclue a me

back Jue 27 whe he was soppe by Immgraio ocls

whe aempig o reeer he Uie Saes (a recors check

ucovere he covicio 99 ha he respoe suere

ha place hm i removal proceeigs)

Turg o he issue o emplome respoe saes ha

he has ha varous empome a has worke over he years He

saes ha recely because o beig lai o rom work he has

bee uable o oba ew emplome eve houg apparely he

has worke or his cle or several ays he respoe

A 44 371 296 5 Sepember 14 29


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ses, n pr s bcuse e s emporr cr o be n he

Une Ses n no permnen cr e perps,

aken rom m wen e ws pce n remov proceengs

urnng bck o e responen's m e responen

ses h re s no specc reson w e never mrre he

womn, he moher o s cren, bu ppren s no one

so urer e responen cer ms ree o s

cren were born ouse e Une Ses n ppren

enere e Une Ses g o ve w m e

presen e responen urr ses e s no been be

o procee w ng ppcons or ny o s cren or

es o sr procss

e rsponen ses n cknoweges ppren e

womn e ves w oes work on occson even oug se s no

proper ocumens o work n e Une Ses. e ncom she

erns ppren s n cs I s no gre sum bu s s

work h se oes perorm

On rerc, responen ses e s gn

geny ookng or work n e oes expc o be u

engge n work n oresebe uure urer, responen

ses e oes uy nn o e n ocumens e cn

e or wu sus o be soug or hs m members

A 044 37 29 Sepember 14 2009


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STATEMENT OF W

ndvduals ar lgbl for th xrcs of dscrton

undr formr Scton 212c} of th graton and Natonalt

Act f crtan crtra s found Ths crtra n part ar

lad out n 8 CFR 12123 t dos appar frst to th Court

that th rspondnt must hav pld gulty o a convcton pror

to Aprl 1997 That appars to b th cas bfor ths Court

basd on Exhbt 2 and th has bn no vdnc to th

contrar Thrfor th Court dos blv th rspondnt s

statutorl lbl for consdraton for a 212c} avr

spcall snc h has bn not nadmssbl undrnath othr

grounds that ould conclud consdraton for a 212c} avr

Th Court thn looks to hthr or not th rspondnt has

stablshd crtan thngs as ll as lookng at th quts of

rspondnts cas lookng at both th postv and ngatv

factors n rspondnts stuaton Ultmatl t s up to th

Court hthr or not to grant or dn an applcaton for rlf

n th xrcs of dscrton

FNDNGS OF THE CORT

Th Court ll not th follong n rspondnts rust

for a avr pursuant to formr Scton 212c} of th mmraton

and Natonalt Act As notd th rspondnt appartly dd

plad gult pror to 1997 to th crmnal offns that placs

A 044 371 29 7 Sptmbr 14 2009


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hm bfor th mmgaton Cort Hov th spondnt mst

not smpl b gb for rlf bt mst b ab to stablsh

to th Corts satsfacton that h s n fact dsrvng of

sch lif. n that rgad th Cort nots th follong

Fst as to postv factos rspondnt stats h s

vng th a oman fo man as hovr not marrd h

rspondnt stats h has for chldrn from ths rlatonshp

Hov onl on s a Untd Stats ctzn lvng lgall n

th Untd Stats h spondnt stats that h has bn

mplod n th past and th Cot dos not thr s som

ndcaton that h has had mpomnt n th past Fthr th

rspondnt dos hav som othr rcords n hs Grop Exhbt 3A

shong that h has mad som pamnts for varos thngs ov

svra ars Frth th Cort nots that on of th

rspondnts chldrn Endr Daz has mdca concns and

problms as otnd n a lttr fom a doctor from Albqru

N Mxco Appantl ths chld s on of th thr chldrn

th no afu stats n th Untd Stats

rnng nxt to th ngatv factors th Cort agan s

fist concnd th th act of complton of rspondnts

applcaton bfor ths Cot h Cort nots that th docmnt

s onl a pags n ngth t dos not hav man stons

that nd to b fd ot. Hovr t appas for hatv

A 044 31 29 8

5 ( ' h&kc,\ ..

Sptmbr 14 2009

covc ; H . .


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-

rason that du dnc as not don on th appcaton As

notd n Quston 3 any dparturs s blank Quston 4 dos

not sho rsdnc byond thr yars and thr s no mplomnt

lstd hatsovr on th appcaton Furthr as th rspondnt

has tstfd h has vd th a oman for many yars ho has

no aful status n th Und Stats but st dcds on

occason to ork thout propr documnts Furthr th

rspondnts thr of four chdrn hav no lafu status n th

Untd Stats and to ths da th rspondnt has chosn for

hatvr rason not to at last attmpt to procss to ltmz

thr prsnc n th Untd Stats th fn som for of

ptton

Furthr th Court not that th rspondnt as not a

aful prmnnt rsdnt for much or than on ar hn h

commttd th crm that pacd hm bfor ths Court

Crtan that s not a ron pont on rspondnt's cas It s

ony bcaus h s bl for a 212 (c) avr and that th tm

as not cut off hn h commttd ths offns thy av hm an

opportunt to appar bfor ths Court Hovr th Court dos

blv that such an offns bn commttd shortl aftr con

to th Untd Stats rass th rspondnts rsponsbt to

ths Govrnnt and Untd Stats nto quston Whl th

rspondnt dos not appar to hav othr arrsts thr s no

A 044 371 29 9 Sptmbr 14 2009


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ned specifically for other arests for the respondnt to hav a

ngativ factor n th a of convctions

Frher th Court does have a concern hether or not the

state of Wyomng is satisfed as to the respondents meeting his

tes of probation. As nod in Exhbit 2 the respondent as

placed on to ars probation and as to complete cerain ters

and condons to includ to be unde th dirct supervsion of

he Wyoing partmen of Corecions for that to-yer perod of

tie t does appear that the respondnt chose to leave the

state of Womng not properly nforng the propr authortes to

ove to another locaton and subsqenly to the Albuqurqe Ne

Meco ara

Whl the Cort dos acknoledg that the responden vr

ell cold be the prry support of his faly hle he is

orkng i does appear ost of his famly hav no laful stas

to be in th Unted Sats and therfor certanly at last a

th presnt tie could n fact rtrn back o Mxico ith the

responden if th respondent shes to mantan his fal unit

he Court beleves that t has in makng its revie of the

prsent case consided the Board of mmigration Appals present

decisions dealng th 212c) aivers to inclde Matte of M rin,16 &N c 58 1 (BA 1978 ) Matter of Wadood 19 &N ec 182

(IA 1984); as ell as atter of Edards 20 &N ec 191 BA

A 044 371 296 10 September 4 2009


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990} Agan t Court dos blv t as rvied

rspondn's ntr case as prsend o te Cour bo t

postve and ngate factors; and ile e responden may av

been n t Unitd Stats for many yars lgally and ile e may

av famly outsd is mmdate famly to nclud s parnts

and siblings lgally in t Uned Stas at apparntly as

some ties t t Court ll av to find tat t dos belve

ta te ngav facors as outlnd in ts decson outg

positiv factors n rspondent's case

Tat is unfortunae snc t Court does biev a t

mor documntaton and mor persistnce on respondnts cas

may av prsnted a betr cas befor ts Cour Hovr

Court must only look a te vdnc before i at e present

tim; and in basing s analyss and a rve of totalty of

vidnc bfor Court t Court ll ave to find tat

t rsponden s n fact not dsrvng of t dscreonar

relief pursuant to former Scton 22{c} of te mmgration and

Natonalty Ac Accordingly follong ordrs are erby

nrd?

ORER

T S HEREY ORRE at t rspondnts requst for a

aivr pursuan to former 22{c} of t mmigraton and

Natonaiy Act is reby dnd

A 044 371 296 Sepember 4 2009


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S FRR ORDRD h h rponnt b ro ro

th nt Stt o xco on h chrg contn on h Notc

to ppr

A 044 296 2 Spbr 4, 2009


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CRTFCAT PAG

ereby ert that the attaed proeedn beore

JG ROBRT S OG n te matter o:

CTOR AMNO

A 0 3 296

Paso exas

s an arate verbatm transrpt o te reordn as provded b

te xetve Oe or mmraton Revew and tat ts s te

ornal transrpt tereo or te e o the xetve Oe

or mmraton Revew

ne Gbert TransrberFree State Reportn n

November 9 2009ompleton date

B sbmsson o ts CRTFCAT PAG the Contrator ertestat a Son BC/T- -anne transrber or eqvalent and/orC as desrbed n Seton C pararap C3 2 o te ontrat

was sed to transrbe the Reord o Proeedn sown n te abovepararap

Documents

Hector Diaz-Mendoza, A044 371 296 (BIA May 23, 2011)