U.S. ~partment ot J ~ ~

omco for lmmiaratfon Rmsw

Decillion of the Board ofllmnignltjca Appeals

Palls Cb~b. Virginia 22041

File:

McClenny, FL

Date:

NOV 1 5 !017

Inre:

IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Cancellation of rmnoval under section 240A(a) ofthe Act The ICSpOndent. a native and citizen of Mexico, appeals fi:om the Immigrstion 1udge's June 2, 2017, decision denying his application for cancellation of removal under section 240A(a) of the Immigration end Nationality Act, 8 U.S.C. § 1229b(a) (2012). The Department of Homeland Security ("OHS") has not responded to the appeal. The appeal will be sustained, and the ffJCOfd will be remanded for the completion of the requisite background checks.

We review findings of mot for clear error, including credibility findings. Su 8 C.F.R. § 1003.l(d)(J)(i) (2017); see also Mano ofJ-T-C-,24 I&NDec. 26:0 (BIA2001);MatlerofS-H-, 23 I&N Dec. 462 (BIA 2002). We review questions oflaw, discretion. or judgment, and all other iswes de novo. Su 8 C.F.R. § 1003.I(d)(3)(il).

The Immigration Judge found the respondent statutorily eligible tor cancellation of removal, but denied relief in the exercise of discretion (U at 8-12). In reviewing the discretionary deternrination, we must "weigh the favorable and adverse factors to determine whether, on balance, the 'totality of the evidence before as' indicau,s that the ~respondent bas adequately dcmoDstrated that he warrants a favorablo exercise of discretion end a grant of cancellation of removal under section240A{a) ofthe Act.'" Malter ofSotelo, 23 J&N Dec. 201,204 (BIA 2001) (quoting Matter ofC-V-T-, 22 I&N Dec. 7, 10 (BIA 1998)). Among the factom deemed adverse to an alien are the nature and underlying circumstances of the ground of inadmillSibility, the presence of addilional significant violations of the country's

immigration laws, the existence ofa criminal record, ltDd if so, its nature, J:Ceency, and seriousness, and the preseoce of o1her evidence indicative of a respondart's bad charactm or undesirability as a permanent resident of this country. See Matter of ~V-T-, 22 l&N Dec. af· 11. Favorable considerations include such factors as fiunily ties within the United States, residence of Jona duration mthis country (particularly when 1iu, inception of residence occumd at an early age), evidsice of hardship to the respondent and his family if.removal occurs, service in this couotry's Armed Forces, a history of employment, the existelloe of property or business ties, evidence of value and service to 1he community, proof ofgenuine rehabilitation if a criminal record exists, mid other evidence attesting to a respondent's good character. Id In ooncluding that the respondent did not warrant cancellation of removal as a matter of discretion, the Immigration Judge determined that the respondent's criminal oonvictian and his statm as an "active aiminal gang member'' are compelli:ng negative factozs weighing against a

favorable exercise of discretion (U at 11-12). AB 1he Jmmigzation Judge noted, the respondent sustained a conviction for carrying a COJJ.Cealed fireann in August 2014, stemnnng from a traffic stop where two firearms were found in the respondent's vehicle, at least one of which was loaded {JJ at 1, 3, 11; Tr. at 14-18; &h. 2). The Immigration Judge based his detfflllioation that the respondent has "active criminal gang member status,. on the notation in the police report related to his arrest and conviction (JJ at 12; Exh. 2). Upon our review of the record, we agree with the respondent•s appellate argument that the Immigration Judge placed undue weight on the notation in the police report that the respondent has "active criminal gang member status," which is not so~ (Resp. Br. at 8-12). See MaJter of H-L-H- & Z-Y-Z-, 25 I&NDec. 209, 212-13 (BIA 2010) (holding that the Board has the authority to afford different weight to the evidence from that given by the Immigration Judge). abrogated on other grounds by Hui Lin Huangv. Holder, 677 F.3d 130 (2d Cir, 2012). Both the Immigration Judge and the DHS acknowledge that the basis for this gang-member designation in the police report is unknown (IJ at 12; Tr. at 124). At his hearing, the respondent testified that he does not belong, and has never belonged, to a gang (JJ at 3; Tr. at 22-24). While the Immigration Judge ultimately fomid this testimony not credible. he also descn.1,ed the respondent as being "candid. forthcoming, and responsive to questioning" (IJ at 7-8). In addition to the respondent's own testimony, the respondent•s mother, brother, and a long-time friend also testified that the respondent is not, and has never been. a gang member (I] at 5-6; Tr. at 82, 91, 99, 102, lll). Furthermore, 1he re.,pondent presented affidavits from family members and friends attesting to his good moral character and lack of gang membership (U at 12; Resp.'s Bxhs. in Support of LPR Cancellation ofRcmowl, filed Jan.17.2017, at 4S-58; R.esp.'s Notice of Filing, filed Mar. 31, 2017). More importantly, the respondent testifi~ end submitted evidence, that for the past 9 years be has worked for the Del Monte Company at the Port of MsoateA,, which requires him to successfully complete an annual background chea. and that he can return to bis job upon his release from custody (U at 3, 10; Tr. at 12-13, 30-31; Resp/sExbs. in Support ofLPR Cancellation ofRanoval, filed Jan. 17, 2017, at 59). Thus, ample evidence comradicting the unexplained and unsubstantiated allegation in the police report that the respondent is m active criminal gang member undercuts the significanoe of this. negative factor as it weighs against the discretionary grant of cancellation. On the positive side of the discretionary equation, the respondent has lived in the Uoited States for almost 20 years, since he was 8 years old, and has been a lawful pennanent resident for approximately 17 years (IJ at 1O; Tr. at 7). The respondent also has a lengthy employment history in the United States. having worked for Del Monte at the Port of Mansw: for 9 years (IJ at 1O; Tr. at 12-13). The respondent's mother and four siblings live in the United States (IJ at 4, 10; Tr. at 25. 86). The Immigration Judge noted the emotional and :financial hardship the respondent's deportation would cause his mother, as demonstrated by the fact that she was working two jobs to support herself since the respondent's incarceration, and her montal health evaluation reflecting that she suffers from post-traumatic stress disorder due to domestic violence and concluding that the respondem's deportation could cause her to suffer anxiety and depression (I.T at 11; Tr. at 910, 26-28, 82-86, 88, 103; Resp.'s Exhs. in Support of LPR Cancellation of Removal, filed Jan. 17, 2017, et 2-8). However, as acknowledged by the Immigration Judg~ the respondent's mother has the respondent's four other siblings to help support her, as they have been doing during the respondent's detention (D at 11; Tr. at 28, 36, 86-88, 1OS).

2

., Al1hough we note with consuierat,le concern the respondent's past criminal misconduct and the serious allegation against him, we ultimately conclude that these negative considerations do not outweigh his numerous equines, including his lengthy residence and family 1ies in the United Stat.es, his employment history, the potmtial hardship to his mother, and the evidence attesting to the n:spondmt's good character. We will theJcfote reverse the Immigration 1udgc's decision denying the respondent's application for cancellation ofremoval under section 240A(a) ofthe Act. We must ~ i z e to the iespondent, however, that this was a close case, and having once been granted cancellation of removal, be will be ineligi"ble for such relief in the future. Section 240A(c)(6) of the Act. Tims, any further misconduct on the :respondent's part may result in his permanent exclusion from this oountry. Accordingly, 1hc following orders will be entered.

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

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.1(dX6), 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 cxsminations, and further proCtt-Oing.,, if necessary, and for the entry of an order as provided by 8 C.F.R. § I 003 .47(h).

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents. Given 1hat our duty is to safeguard the interests of the United Smtes. I would affirm the Immigration Judge's decision to deny relief in the exercise of discretion, in light of the respondent's ~ conviction for unlawful carrying ofa

concealed firearm.

3

BIAu 11-15-17_Redacted.pdf

considerations include such factors as fiunily ties within the United States, residence of Jona. duration m this country (particularly when 1iu, inception of residence occumd at an early age),. evidsice of hardship to the respondent and his family if.removal occurs, service in this couotry's. Armed Forces, a history of employment, ...

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