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A089-965-334
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Enclosure
Cite as: Omar Cruz, A089 965 334 (BIA Feb. 11, 2011)
File:
Date:
FB 1 ! 2011
Voluntary Departure
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's decision dated April 16, 2009. The Immigration Judge found the respondent removable as charged and denied his request for voluntary departure under section 240B(a) of the Immigration and Nationality Act, 8 U.S.C. 1229c(a). The record will be remanded. This Board reviews an Immigration Judge's findings of fact, including findings as to the ,, credibility of testimony, under the "clearly erroneous standard. See 8 C.F.R. 1003.l (d)(3)(i);
Matter ofS-H-, 23 l&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment in an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
The Immigration Judge denied the respondent voluntary departure as a matter of discretion. The Immigration Judge must weigh many factors when considering a grant of voluntary departure. Adverse factors include the nature and underlying circumstances of the deportation ground at issue, additional violations of the immigration laws; the existence, seriousness, and recency of any criminal record; and other evidence of bad character or the undesirability of the alien as a permanent resident. Positive factors include long residence in the United States, close family ties in the United States, and humanitarian needs.
1999).
See
The Immigration Judge noted the respondent's convictions and violations of the immigration laws in denying relief as a matter of discretion. However, we find that the Immigration Judge did not balance the positive equities against the adverse factors in his decision as required.
of Thomas, 21 I&N Dec. 20 (BIA 1995). The respondent indicated that he took care of his four children and his wife. (Tr. at 6, 12), and the Immigration Judge did not consider the respondent's family ties in rendering his decision. The respondent's attorney indicated during the hearing that he
needed more time to investigate the respondent's family ties. (Tr. at 12).
See Matter
Cite as: Omar Cruz, A089 965 334 (BIA Feb. 11, 2011)
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. A089 965 334 Accordingly, the record will be remanded to the Immigration Judge for further proceedings and a new decision consistent with the foregoing opinion.
ORDER: The record is remanded.
Cite as: Omar Cruz, A089 965 334 (BIA Feb. 11, 2011)
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Cleveland, Ohio File No. : A 089 965 334 April 16, 2009
In the Matter of OMAR CRUZ Respondent CHARGE: Section 212 (a) (6) (A) (i) of the Immigration and Nationality Act - alien being present in the United States without being admitted or paroled. Voluntary departure. IN REMOVAL PROCEEDINGS
APPLICATION:
ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is an adult male who is a native and citizen of Mexico. The respondent was served the Notice to Appear on or 2008. At a Master Calendar hearing on and
admitted all five factual allegations and conceded the charge of removability. As such, the sole issue for this Court that remains to be
resolved is the respondent's application for relief. FINDINGS OF THE COURT The Court finds that the respondent in this case has
testified that he attempted to enter the United States illegally on three separate occasions in the year 2000. three occasions, On each of those
testified that while he did successfully enter the United States on or about his fourth attempt, since then. During that period of time, several convictions. the respondent has obtained he has resided in this country
no operator's license and not having insurance on his motor vehicle. license. On another occasion, On a third occasion, he was convicted of no operator's the respondent was convicted of
11
the charge of theft and sentenced to serve lieu of said 11 days in jail, of community service work. STATEMENT OF THE LAW
days in jail.
In
The respondent seeks voluntary departure under Section 240B (b). In order to receive a grant of voluntary departure, the
respondent must establish that he is not only eligible for voluntary departure, discretion. FINDINGS ALD CONCLUSIONS OF THE COURT Based upon the testimony and evidence, the Court finds that but that he merits a favorable exercise of
April 16,
2009
the respondent is not worthy of a favorable exercise of discretion in this case. Specifically, this Court finds that the
respondent was apprehended attempting to enter the United States illegally on three separate occasions in the year 2000. The
respondent evidently was successful on his fourth attempt in that he is currently in the United States and, in addition to his
pleadings, acknowledges that he is present without being inspected, admitted or paroled. Further, the Court finds that
vehicle without a license are factors appropriate for consideration when determining whether to grant a favorable exercise of discretion. In considering the foregoing factors, the Court finds that
the respondent does not merit a favorable exercise of discretion. As such, the Court will deny the respondent's request for
voluntary departure. ORDERS OF THE COURT IT IS HEREBY ORDERED that the respondent's application for voluntary departure is denied. IT IS FURTHER ORDERED that the respondent be removed from the United States and returned to the country of Mexico.
April 16,
2009
CERTIFICATE PAGE
hereby
certify
that
the
attached
proceeding
before
JUDGE THOMAS W .
JANAS,
in the matter of: OMAR CRUZ A 089 965 334 Cleveland, Ohio
is an accurate, verbatim transcript of the recording as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.
By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C. 3. 3. 2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.