david aguinaga-melendez, a200 759 135 (bia may 19, 2015)

Upload: immigrant-refugee-appellate-center-llc

Post on 07-Aug-2018

219 views

Category:

Documents


0 download

TRANSCRIPT

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    1/18

    LEE, MARKAIME BARRON P C12240 INWOO ROA TE 300ALLA TX 75244

    U.S Department of Justice

    Executive Oce r Immigration Review

    Board ofImmigration AppealsQce of he Clerk

    5/07 Lesburg Pik. Sul 2000Fa Church Vna 2030

    H/ICE O Ch Cl - AL125 E h C F, 500Ig TX 750622324

    N: AGINAGA MELENEZ, AVI  A 200759135

    h : 5192015

    nclosed s a copy of he Board's decson and order n he aboe-referenced cae.

    nclore

    bdb dk dwd

    ba . x . t d. Sv..v. ..

    Sincerely,

    Dona CarrChie Clerk

    k

    For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e 

     n t   e  r  , L  L  C|  w w w . i   r  a c  . n e  t  

    Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    2/18

    U.S. D�patment of JusticeEx\v O r Ig Rvw

    Brd Al

    Fals Churc, Vrgina 20530

    Fe: 00 759 135 - Dallas, TX

    In re DAVID GUINAGAMELENDEZ

    I MOVAL PROCEEDINGS

    APPEAL

    N BEHALF OF RESPONDENT: Mark Lee, Esquire

    N BEAF OF DS Dil GividenAssisant Chief Counsel

    Date:

    APPLICATION: Adjusent of stus under section 245(i)

    MY 192Dl5

    The respondent, a native and cizen of Mexico, appeals om he Immiaion Juge'sdecision dated September 2, 21, denying is application r adusment of stus pursut tosection 245(a)(i) of the Immiion d Nationaliy Act, 8 U.S.C. § 255(a)(i). The appe wille sed.

    The Bod defers to the actual ndings of an Immiation Judge, unless hey are clearlyeoneous, but it reains independent udgent and discretion, subect to applicable goveng

    standards, regarding pure questions of law an the application of a particular standd of law tothose cts. 8 C.F.R. §§ 13.(d)(3)(i), (ii). Because he respondent's application r reliefom removal was led aer May , 2005, it is subject to te RAL ID Act of 205. SeeMatter of-B-, 24 &N Dec. 42 (BIA 2006).

    The respondent is eligible r aduent of staus in the exercise of discretion ee Matter ofArai 3 I&N Dec. 494 (BIA 970) (setting rth he relevant ctors). See also atter of Bl,15 I&N Dec. 626 (BIA 974). Te respondent h several vorable actors which includeresidence in e United Sates since 1996 and a nited Sates citizen son and citizen sisters (I.J.at 3). In addition, he respondent has atened chuch, ad he apparently has a goodrelaonship with his amily (I.J. at ). We acknowledge hat the respondent was aeste in

    1997 r atempte urder, ad in 210, r assault and interering wih an eergency telephonecall. e so did not include his 1997 arrest r atempted mrder in his adjusent of satusapplica 5. wever e 199 est a is ad here is no nica ate respondent was culpale r the lleged crime. In aditon, te respondent tested that heand hs wfe divorce in 2010, yet led at ret in 20 reporting his ling su a married(.J. at 34; Tr at 63; Exh. 6R). Nonetheless, there is no evidence hat te respondent receivedany benet om this misrepor. In light of he regoing, the respondent has esblished, in heexercise of iscretion, his eligibili r adjusent of sus. e her do ot nd theImmiaon Judge's oher reasons t be a sucient asis to ey the application.

     I  m m i   r  a n t  & R e  f  u e  e  A  p  p e  l   l   a t  e  C e  n t  e  r  , L L C|  w w w . i   r 

     a c  . n e  t 

    Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    3/18

    A200 759135

    Accoingly, the llowng order wll be entered.

    ORDER: The appeal is sstained

    FURTHER ORER: Purst to 8 CF.R § 003(d)(6), te record is remded to theImiatio Judge r the pose of aowig the Depet of Homed Secriy theopporn to complete or update identi, a enorcement, or security investigations orexainatios, and her proceedings if necessa, d r e eny of an order as provded by8 C.F.R. § 0034h).

    2

     I m m i  g r a n t & R e f u  g e e A  p  p e l l a t e C e

     n t e r , L L C| w w w . i r a c . n e t

    Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    4/18;emz.

    .,

    UNIED SATES EARTMENT O USCEEXECUTIVE OFFCE FOR MMIGRAIO REVIEW

    UNITED STAES MMGRAION COUTDALLASES

    le: A200-759135 September 12 2013

    In the Maer of

    VID GUINGA MELENEZ))))

    I REMOVL ROCEEDINGS

    RESODEN

     CHARGE Seon 212(a)(6)()() of the mmigrato ad Natonaity ct (Act)as amended and tat you are an ale present in te Uted States

     witout being admed or paroled or wo arrved i te UnitedStates at any tme or place other tha as designated by the

     orney Geeral

     LICTIOS equest fr adjustment of status pursuat to Section 245(i) o teImmgraton ad atoa Act as ameded

    ON BEHALF O ESPODENT MAK LEE12240 Iwood oad Sute 300alas exas 75244

    ON BEHAL O HS HEID J. GRAHAMDallas Texas

    ORAL DECSO OF THE IMMIGIO JUDGE

    he respondent is a ative and citizen of Mexco He entered te Uited

    States at or near De Ro exas on or about a unkow date He was ot the

    admitted or paroled aer ispectio by a Immigration ocer Cosequetly te

    epartment the of Homelad Securt (erein aer referred to as the Government)

    carged the respondent with removablt pursuat to Secton 212(a)(6)()(i) of the

    Immigton ad ationalty ct (Act) as amended ad tat he s an alien preset n te

    Unted States witout being admtted or paroled, or who arrved n te Unted States at

    ...v• i _ . .. ,.3.. \..J:,:_c Q £1& • • • • • • ,•• •••>••••

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    5/18

    ny time o pce ote tn designated by te Attoney Genel Exibit 1

     At maste clend proceeding, te espondent dmitted to te factua

    egations contined in te Notice to Appe nd conceded to te cge of emova

    Teefe emov ws estblised. In cse emov becme necess, espondent

    designated Mexico

    SUMMARY OF TESTIMONY

    Te espondent testified tat e fit enteed te United Sttes in 1982

     without vis. Respondent cimed tht e le te sme dy when he ws voluntaily

    etued in 1982

    Respondent's second dte of ent ws in 1994 wit a visa. He e te

    US in 1996.

    Respondent indicted tht e etuned to te United States thid time in

    1996 ilegly.

    Respondent indicted tht te petitione who s petitioned im to

    immigte to te United Sttes is is siste wo is United States citizen

    Te respondent testified bout is cimin isto Respondent testified

    tt in Mrch 9, 2010 there was n incident t is ome wee he ws cged with

    inteeing with n emegency cl He indicated tat the crges wee dismissed

    Te espondent indicated tat e was rested in 1997 becuse of n

    gument wit is wife. Respondent caimed tht e ws eesed the next day

    Respondent ws sked wy he did not mention this arrest in 1997 on his ppliction for

    djustment o sttus espondent indicted tt it ws  false sttement eted to wy

    e ws ested.

    On cossexmintion respondent testified tht his lst dte of ent was

    in 1996 but e does not remembe te mont. He indicted tt e ws cught in 1996

     A200-759135 2 September 12 2013

     I  m m i   r  a n t  & R e  f  u

     e  e  A  p  p e  l   l   a t  e  C e  n

     t  e  r  , L L C|  w w w . i   r  a c  . n e  t 

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    6/18

    by te Border Patrol. Respondent indicated tat e ad been apprehended by te

    Border Patro tree or four times and had been returned to Mexico on each occason

    Te respondent testified tat he was married to a Patricia Carilo and that

    tey were divorced in Juy of 2010 He indicated tat e married Patricia in 1984 in

    Mexico.

    The Assistant Cief Counse fuer questioned te respondent about is

    criminal isto. Respondent indicated that e had been arrested tree times in te

    United States He had been arrested once for speeding ticket violations

    He also testifed tat in 2010, he was arrested because of a dispute wit

    is wife

    Respondent aso testified tat he was arested in 1997 wen he was

    charged wit aempted murder Te respondent claimed tat tese carges were

    dismissed Te respondent claimed tat te carge of attempted murder is wat e

     was tod by te police for wat e was arrested fr. He indicated that e was not

    arrested for murder, but was arrested for attempted murder

    Respondent fuer provided testimony about is 2010 arrest. He

    indicated tat e ad been arrested for causing bodily inju on a family member and

    inteerence wit an emergency cal Respondent described te circumstances

    surrounding tis arrest Respondent claimed tat e physicaly touced his wife. He

    pused his wie in the cest wen is wife grabbed him. He indicated tat is wife did

    not fa when e pused er He fuer testified tat e never it is wife. Respondent

    testified that his wife did file for divorce because of the probems tat they were aving

    Respondent reterated tat in uy 2010, e was divorced from is wife

    Patricia.

    Respondent was asked about is 2011 federal tax returns whic claimed

     A200-759135 3 September 12 2013

     I   m m i    g r  a n t   & R e  f   u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L L C|  w w w . i   r  a c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    7/18

    _.

    that he was married even though he had ndicated that he was divorced from her in

    Juy of 2010 Respodent indcated that the reason he caimed he was marred on hs

    201 tax retus is because they're stl living together He tested that hs wife sti

    continues to ve wth hm

    On redirect examnaton the respondent was asked about his marita

    status. Respondent testfied that today he considers livng together with his wife that

    they are husband and wfe as it relates to Patrica. He consders hmsef married to

    Patricia. He fuher testifed that Patrica fees the same way that she is marred to the

    respondent

    Rosa Olivares testfed. She s a Uited States ctizen and is the

    respondents sister. She testfed that the respondent is a responsble individua and

    ve cose to his family. She testifed that Sonia has three children.

    Maha uaardo aso testfed. She is aso the respondents sister. She

    testfed the respondent is a cam man and a good brother and a good son and a good

    father She indicated that her husband is dsabed On crossexamination Mahatested that Sonia the respondents previous wfe tod her that she was not happy in

    the relationshp with the respondent.

     The owing documents are n the record of proceedigs

    See Exhbit 1 • the Notce to Appear

    Exhbt 2 a document from the US and Immgraton Seice related to the

    approval of the 130 petition on behaf of the respondent.

    xhbt 3, the respondents Form -48 application to regster for

    permanent residence or adjustment of status

    Exhibit 4 respondents submisso of 485 applcaton fr adjustment of

    status and suppoing documents.

     A200759-135 4 September 12 2013

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L  L  C|  w w w . i   r  a

     c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    8/18

    Exhibit 5, the respondent's suppemental documents n suppo of the -

    485 application for adjustment of status and witness ist.

    Exhibit 6, the respondent's suppemental documents in support of the  

    485 application r adjustment of status and updated witness list

    Exhibt 7 the respondent's motion to admit suppementa documents in

    suppo of the appicaton for adjustment of status beyond time established by EOR

    Practice Manual

     A of these documents have been considered by the Cou, even if not

    specicaly mentioned

    STATEMENT OF THE LAW

    Section 245(i) provides at the tme of these proceedings that an aien

    physicaly present in the United States who entered the United States wthout inspection

    may, in the discreton of the Attorney General and upon payment of the appropriate fee,

    adjust hs status to that of a lawfu permanent resident See Section 245(i)(1) n order

    to adust hs status, the respondent must show that he s eigibe to receve an mmigrantvisa, he is admissibe to the United States, and an immigrant vsa is immediatey

    avaable to him See Section 245()(2)

    n the Maer of Arai, 13 l&N Dec 494 (BIA 1970), the Board of

    mmigration Appeals (the Board) stated guidelines to be llowed in the exercise of

    discretion and adjustment of status cases Frst, n the absence of adverse factors

    adjustment wil ordinariy be granted as a matter of discretion And second, when

    adverse factors are present, t may be necessa r the applcant to estabish unusua

    or outstanding equtes to oet these facto Moreover, the aen bears the burden of

    establishing that the adjustment of status shoud be granted in the exercise of

    dscreton, and eve adudicaton must be done on a case by case basis Lasty, and

     A20059135 5 September 12, 2013

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L  L  C|  w w w . i   r  a

     c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    9/18

    ·-

    mmgraton Judge must exercse dscreto ndependently o te bass of all factual

    crcumstances Matter of Blas, 15 l&N Dec 626 (BA 1979).

    CEDIBIL

    As a ntal matter te Cou otes the respodets applcaton was led

    aer May 11, 2005 te eectve date of the REA ID Act herefore hs applcato s

    subject to credblty ad corroborato standard contaned at Secto 240(c)(4) of te

    Act Uder Secto 240(c)(4)(C) a credblty deteato by an mmgraton Judge

    conceg an applcato for relef from removal s based o the followng crtera

    Cosderig the totalty of te crcumstances and all relevant factors, the Immgraton

    Judge may base a credblty determaton o the demeaor cador or

    resposveess of the applcat or wtess the herent plausblty of the applcats or

     wtess's accout the cosstecy beee te applcats or wtess's wrtte ad oral

    statemets (weever made ad weter not uder oath, and cosderig te

    crcumstances whch te statements were made) the nternal consstency of eac

    such statements te consstency of suc statements wth oter evdence of record(cludg the repos of te Depamet of State on count codtons) ad ay

    accuraces or falseoods suc statemets wtout regard to wether an

    accuracy consstency or falseood goes to the hea of the applcats clam or any

    other relevant factor There s no presumpto of credblty however f no adverse

    credbli determnaton s explctly made the applcat or wtness sall ave a

    rebuable presumpton of credblty o appeal See Secton 240(c)(4)(C) of te Act

     Where te Cou makes a adverse credblty fidng te Cou bases ts

    deteaton o te specfic reasons r dsbelevng te respodets testmony as

    suppoed by the record Matter of SA-, 22 l&N Dec 1328 (BIA 2000) See also te

    Matter of AS- 21 l&N Dec 1106 (BIA 1998)

    A200759-135 6 September 12 2013

     I   m m i   r  a n t   & R e  f   u

     e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L  L  C|  w w w . i   r  a

     c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    10/18

    I the preset case the Cou finds that Rosa Avarez ad Maha

    Juaardo are credibe witnesses The Court nds that they testified both cadidly and

     forthrght

    Hwever, or the reasons stated below the Cou nds that the

    respondet is not a credibe witness

    Fit the Cous advee credibility findig relates to the respodents

    crimial histo O the respondet's appication for adjustmet of status Exhibit 3 the

    respondet ideted the times that he has been arrested i the United States this

    applicatio the respondet caimed oy two arrests Respondent caimed his

    application that he was arrested on March 10, 2010 in Cebure Texas andcharged

     wth assault agaist a famiy member ad iteerence with a emergecy cal e

    indicates that the case was dismissed April 20 2010 He aso caims that he was

    arrested i 2003 i Cebue Texas for a warrant o upaid speedig tickets. He was

    reeased aer he paid a fie However the respodet testified that he had bee

    arrested three times

     The respondet metined two arrests that were stated o his appicatio

    r assault agaist a famiy member iteering with an emergecy cal and speedig

    tickets Hwever the respondet did ot state o his appicati that he had bee

    arrested for aempted murder See Exhibit 3 ad Exhibit 6 The Cou otes that the

    respodet siged his appicati for adustmet of status uder peat of peu His

    arrest record o his appicatio was incosistet wth his testimoy regardig his arrest

     for aempted murder The respondet caimed that the charges agaist him were false

     That is oe of the reasos he did t metio it The Cou ds this explaation

    upeuasive The respndet's faiure to state o his appicatio that he had been

    arrested for attempted murder is misleading the Cou o a applicatio where he is

     A200-759-135 7 September 2 203

     I  m m i   g r  a n t  & R e f 

     u  g e e A  p  p e l  l  a t  e C e n t  e r  , L L C| w w w . i  r 

     a c  . n e t 

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    11/18

    -· -

    seekng a beneft unde the Act

    n the espondent's aest fo aempted mude in 1997, espondent

    indcated that he did not physicay ham his wife Nonetheess, the Cou beeves the

    espondent is eued to denti al hs cimina histo on his application fo adjustment

    of status n ode fo the Cou to detemine whethe o not hs appcaton should be

    ganted o dened as a matte of discetion, and whethe o not thee ae any gounds of

    nadmissibilit n addtion, espondent s equied to poduce documents eating to any

    cimina histo n his case such as his aest fo aempted mude and his clam that t

     was dsmissed

     The next issue that eates to the espondents cediilit eates to

     whethe o not the espondent s singe o maied The espondent testified that he

    divoced Paticia Cao in Juy of 2010 He testified that he maed he in Mexco n

    1984 On his 2011 fedea ncome tax etuns, fed with the Intenal Revenue Sece

    and signed unde penat of peu, espondent caimed his fiing status as maied

    Respondent was asked to expan the nconsistency between a statement n hstestimony that he was divoced n 2010 fom Patcia and his cam on his 2011 tax

    etuns that he was maed Respondent claimed that he beeved he s sti maied to

    he because he s living togethe with he

    On edect examnaton, the espondent testied that he is livng with

    Patcia, and they conside themseves as husband and wife He testifed that Patcia

    consdes the espondent to be he husband, and he consides Patica to be his wfe

    because they ae living togethe as husband and wife. The espondents testimony at

    this point, whee he conside himself to be married to Patica and his 2011 tax etuns

     whee he claims his fiing status as maied, is inconsistent wth othe evidence n the

    ecod that he swoe to unde penaty of peu Fo exampe, hs appicaton fo

     A200759-135 8 Septembe 12, 2013

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L  L  C|  w w w . i   r  a

     c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    12/18

    adjustment of status te Fom -485 Exibits 3 and 6 on page 2 of is application fr

    adjustment of status te respondent claimed his marital status as divorced not mared

     We his application r adustment of status asked im to list is preset spouse

    respondent states none

     The Cou would note tat te respondent signed his application for

    adjustmet of status under pealty of peu on Janua 28 2011 That application for

    adustment of status that was signed on Janua 28 2011 were te respondet

    claimed that e is divorced and not maried, and does not list a spouse is inconsistent

     with is 2011 federal tax returns were e claims that e is married t is also

    inconsistent wit is testimony i March 22 2013 before te Immigration Cou were

    he claimed tat e is married to Patcia because they ae living togeter and tey

    consider eac oter as husband and wife

     Te Cout also notes that te respondent as filed an additioal document

    on te Form G-325 Exhibits 4 and 6. On te respodent's G-325 xibit 4 page 18

    tab E signed o Janua 28 2011 is G325A asks te respondent to provide is

    current wifes name Here te respondent in te box related to current usband and

     wife states oe However it sould be noted that o the respondents 2011 federal

    tax retus e did claim is marital status as being married

    e respondent's application r adustment of status Exibit Number 6

    page 2 signed on Februa 26 2012 soly before is Immigration earig is also

    incosistent with is testimony On tis application the respondent claimed is marital

    status as divorced. He does not state that e is married As previously metioned te

    respondet testied at his hearing in Marc of 2013 tat presently e consides Paticia

    to be is wife tat e is living togeter as usband ad wife and bot consider

    themselves maried to eac oter Te Cou would also note that o his application r

     A200759-135 9 September 12, 2013

     I   m m i    g r  a n t   & R e  f  

     u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L L C|  w w w . i   r  a c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    13/18

    adjustment of status, signed under penalty of peu Exhibit Number 6 page 95, page

    2 of the adjustment application, it asks him to list his present spouse and all of his

    children Nowhere in pa three, question B does the respondent indicate any spouse.

    In other words on his application for adjustment of status, clearly the respondent is not

    married And again this would be inconsistent with his testimony under oath that he

    considers himself to be married to Patricia

    Next on redirect examination, the respondent was asked fuher questions

    about his marital status Again as stated earler the respondent claimed that he is

    presently married to Patricia, and they consider themselves as husband and wife

    because they are living together Yet on the respondent's 202 federa tax returns that

    he submitted to the Cou, Exhibit 6 the respondent claimed his fling status as head of

    househod He did not claim his filing status as either single or married, rather he

    claimed it as head of household According to the RS regulations reated to head of

    household one can claim head of household if he is an unmarred individual who

    provides a home for ceain other persons He is considered unmarried fr this purpose

    if any of the following applies He was legally separated according to the state law

    under a decree of divorce or separate maintenance at the end of 202, but at the end of

    2012, his divorce was not fina, he is considered married He is married but iving apa

     from his spouse for the last six months of 202 and he meets the other ules related to

    married persons who live apa ater He is married to a non-resident aien at any time

    during the year and he does not chose to treat him or her as a resident alien n this

    paicuar case, the respondent cearly testified on both direct and redirect and cross

    examination that he considers himself to be presently married because he is lving

    together The Cou recognizes that the state of exas recognizes commonlaw

    relationships so if the respondent considers himself marred because he is living

     A200759135 10 September 12, 203

     I   m m i   r  a n t   & R e  f   u

     e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L L C|  w w w . i   r  a c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    14/18

    together with Patrica then the appropriate lng status would have been married or

    married iling separately, not head of houseold . This is iconsistet wt te RS

    regations for ng stats as head of osehold

    Te Co inds that the respondent has faled to provide an adeqate

    explanation for the inconsistences beeen his testimony wt the sppong

    documents tat he submitted o hs ow behaf He aso faied to ehabi litate s

    credibil ty hereore the Co makes a adverse credibi lity deteination as to te

    respondent and it is in the Cou's d iscretion to dey his application on that basis

    The Co would note that the respondent has ot lilled the statto

    requiremet r adjustment of stats I the a ie is admissibe pursuat to Section

    21 2(a)(6)(C)(i) the aien mst submit a Form -601 waiver to waive the grounds of

    inadmissibilty Wen an alien is not admssibe to the Un ted States under Section

    21(a)(6)(C)(i) As an aien may seek a waiver of nadmissibility uder Section 21 2(i) of

    the Act Under Section 21 (i) al lows a Immigration Jdge to wave a groud of

    admissibility nder Secton 2 12(a)(6)(A)(i) in the case of a a ie who is a spose

    so or dagter of a United States ctze o permanent resident if te alie estabises

    that refusal of admission to the United States of sch alien wod result n extreme

    hadship to the ctzen or permanent resident spose or parent of the alie The factors

    to be consdered i deteining f whethe an aien has established extreme hardship

    pursuant to Section 212(i) of the Act inclde bt are not limited to the fowig: the

    presence of awful pemanent resdent or Uited States ctizen famy ties to this

    cont; the quaing reatives family ties otside of te United States the conditos

    in the cont or counties to which the quaiing reative wod relocate and the extent

    of the qaliig reatves tes to such contries the f iancal impact of depare from

    tis cont ad a final s igificant coditio of eath paicularly we tied to

    A200759135 1 1 September 1 201 3

     I  m m i   r  a n t   & R e  f  u

     e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L L C|  w w w . i   r  a c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    15/18

    . -·"

    uavailabiity of suitabe medical care i the cout to which the quaiig reative

     woud reocate. Matter of Ceates, 22 &N Dec 560 (BIA 1999)

    Here, the respodet, via couse, deced the oppouity to submit the

    Form 601 waiver to wave the groud of iadmissibiity uder Sectio 212(a)(6)(C)(i)

    as a alie who wilfuly misrepreseted a material fact, sought to acquire a immigrant

    visa ad admission ito the Uited States ad benefit uder the Act as a awful

    permaet residet Respodet faied to metio o his o applicatios for

    adjustmet of status his arrest for attempted murder i 1997, its dispositio ad reated

    documets, thus udermg the Cou's abity to determe f it was a groud of

    iadmissibiity, ad if ot whether it shoud be cosidered as a factor as a matter of

    discretio Respodet claimed that he failed to metio his 1997 arrest fr attempted

    murder o his appication because it was a fase statemet (i other words, he was

    falsey accused) but he uderstood this cearly to be a arrest. It is evidet to the Cou

    that respodet, i his ow words, kew he had bee arrested i 1997 for attempted

    murder, but deiberatey failed to metio o his applicatio fr adjustmet of status, where he is aemptig to obtai a immigrat visa because he beieved he was fasey

    accused, i.e. a false statemet

     Addtoaly, the Cou finds that the respodet misead the Cou whe

    he claimed o various documets ad i his testimoy that he was either marred or

    sige The respodet testfied that athough he has been divorced from his wfe sice

    July 2010, he cosiders himself married to her because they have bee livig together

    His 2011 federal income tax returs alegedy fied with the Iternal Reveue Seice,

    aso caimed that he is married yet hs o adustmet of status appicatios idicate

    that he is divorced ad has no spouse His G-325 also idicates that he is ot married,

    ad does ot have a spouse athough the respodet caimed that he is married ad

     A200-759-135 12 September 12, 2013

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e  n

     t   e  r  , L  L  C|  w w w . i   r  a

     c  . n e  t  

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    16/18

    lving together with his wfe Patrica n the same household, on h s 201 2 edeal tax

    retus led wth the IRS he clamed his filing status s head of household which wold

    be inconsistent with the IRS rules denng head of househo ld . Aer reviewing the

    respondent's testmony under oath hs o applcations r adjustment of status sgned

    under penalty of perj h s 202 and 20 1 fedeal ncome tax returns also iled with

    the nternal Revenue Seice and signed under the enalty of eu and his G-325

    sgned under penalt of peu the Cou nds the respondent has delberately

    attempted to mslead the Cou regardng his matal stats in order to obtain a benefit

    under the Act h s permanent resdent status. Thereore, h s app lcation wll be denied

    as his inadmssble under Section 2 2(a)(6)(C)(i) o the Act and he has not sbmitted

    the waiver r that ground of nadmissb lity

    Assuming argendo that the respondent is not inadmissible in light o the

    above outlned adverse credibili acto he has not shown that he merts his

    aplcation o beng ganted as a matter o discetion . n exercsing d isceton the Cou

    has reviewed the record as a whole and balanced the adverse factors evdencing the

    respondent's undesirablity as a permanent sident in this count wth social and

    hmane consderations presented to determne whether the grantng of relief apea in

    the best interest o this count. Matter of Edwards 20 l&N Dec 872 (BA 994).

    Respondent has the fllowng positive equities. He has been in the Unted

    States since hs last date of ent of 99. He has amily in the United States that

    consists of sisters who are citizens of the n ited States and a son dwardo who is

    also a citizen o the Un ited States e also has been attendng mmanuel Adventst

    hurch (although ts not listed on hs applcation). The Cou has receivd letters rom

    his youngest son dwardo relatng to why the resondent shold be granted

    permanent resident status The negatve actors n respondents case of course is the

    A200759135 1 3   September 12 20 3

     I m m i  r a n t & R e f u e e A  p  p e l  l  a t e C e n t e r , L L C| w w w . i  r a c . n e t

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    17/18

    adverse credbil determaton. His cosistet statemets on his applcato for

    adustmet of status versus his testmoy hs claim that he s married versus other

    evidece dicatig that he s sigle his 201 tax returs which are icosistent with the

    o applcatos for adjustment of status that he has led with the Cou related to hs

    marrage status, his 2012 tax retus where he claims that he s head of household yet

    he testified that presetly he cosders hmself marred

     Ad hs crminal histo he has failure to reveal on hs applicatios that he

     was arrested for attempted murder whch s ot metoned o either of hs applicatons

     for adjustmet of status So balacig the positive factors agast the egative factors

    assuming that respodent s not admssble, the Cou wll dey the respodet's

    applicaton as a matter of dscreto The Cou beleves that the egatve factors

    oueigh the positve factors

    For the above stated reasons the respodet's applicatio for adjustmet

    of status will be deed

    Respondent s not seekig ay other relef before the Cou

     Accordigly the followg order shall be etered

    ORDER

    T IS HEREBY ORDERED the respodet's applicato for adjustment of

    status puuant to Secton 245(i) of the mmigraton and Natioal Act be deied

    T S FURTHER ORDERED that the respodet shall be removed ad

    depoed from the United States to Mexico based on the charge contained i the Notice

    to Appear.

     A200-759135

    DETRICH H. SMSmmgration Judge

    14 September 2 203

     I  m m i  r  a n t  & R e f 

     u e e A  p  p e l  l  a t  e C e n t  e r  , L L C| w w w . i  r 

     a c  . n e t 

  • 8/21/2019 David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

    18/18

     CERTIFCATE PAGE

    eeby ceti tat te attaced poceedig befe JUDGE DETRCH H. SMS,

    n the maer of:

    DAVD AGINAGA MELENDEZ

     A200759135

    DALAS EXAS

     was el as eei appeas and tat tis is te ogial tascipt teeo o te e o

    te Executive Oce o Iigration Review

    HOLY O'NE (asciber)

    DEPOSTION SERVCES lc-2

    DECEMBER 10 20 3

    (Competio Date)

     I   m m i    g r  a n t   & R  e  f   u  g e  e  A  p  p e  l   l   a t   e  C e 

     n t   e  r  , L  L  C|  w w w . i   r 

     a c  . n e  t