U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Canales, Cynthia OHS/ICE Office of Chief Counsel - ELP
Gordon Davis Johnson and Shane, PC 11541 Montana Ave , Suite 0
4695 N Mesa, Ste 100 El Paso, TX 79936
El Paso, TX 79912

Name: V B ,L A -430

Date of this notice: 7/26/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
O'Connor, Blair
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
 '
( .

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executiv Office for Immigration Review

Falls Church, Virginia 22041

File: 430 - El Paso, TX Date:

JUL 2 6 2017
In re: L V B

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Cynthia Canales, Esquire

ON BEHALF OF OHS: Graciela Jiron

Assistant Chief Counsel

APPLICATION: Waiver of removability under section 237(a)(l)(H) of the Act

The respondent, a native and citizen of Mexico, appeals from the decision of an Immigration
Judge dated September 12, 2016, denying his request for a waiver of removability under section
237(a)(l)(H) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(l)(H), and ordering him
removed. The Department of Homeland Security ("OHS") has filed a brief in opposition to the
appeal. The appeal will be sustained.

The following facts are not contested. The respondent originally entered the United States
without inspection in 1986 (U at 2; Resp. Br. at l; Tr. at 15). The respondent's father filed a
Petition for Alien Relative (Form 1-130) on his behalf as the unmarried son or daughter of a lawful
permanent resident alien (IJ at 2; Tr. at 16; Exh. 7). See section 203(a)(2)(B) of the Act, 8 U.S.C.
l153(a)(2)(B). The visa petition was approved with a priority date of November 7, 1991
(IJ at 2; Exh. 7). In 1995, the respondent traveled to Mexico to marry his wife in both religious
and civil ceremonies (IJ at 4; Tr. at 18-19, 41). In 2004, the United States Citizenship and
Immigration Services ("USCIS") adjusted his status to that of a lawful permanent resident based
on the approved immigrant visa petition (IJ at 2; Exh. 5). See section 245(a) of the Act, 8 U.S.C.
1255(a). In 2005, after obtaining lawful permanent resident status, the respondent married his
wife for a second time in El Paso, Texas (IJ at 3; Resp. Br. at 2; Tr. at 20).

In2011, USCIS denied the respondent's Application for Naturalization (Form N-400) after
discovering that he had misrepresented his marital status at the time of adjustment and during the
course of his naturalization application (U at 3, 9-11; Tr. at 19-20; Exhs. 4-7). At that time, the
respondent executed a sworn statement admitting that he misrepresented his marital status in
applying for adjustment of status and naturalization, but claiming that he had relied on the advice
of a non-attorney immigration consultant (IJ at 10; Exh. 7). In 2012, the OHS initiated removal
proceedings, charging the respondent with deportability under section 237(a)( l )(A) of the Act on
the ground that he was inadmissible at the time of adjustment under section 212(a)(6)(C)(i) of the
Act, 8 U.S.C. 1182(a)(6)(C)(i), because he "failed to disclose the fact that [he was] married at
the time of [his] adjustment of status" (IJ at 1; Exh. 1). See 8 C.F.R. 205.l(a)(3)(i)(I) (providing
for the automatic revocation of an approved visa petition "(u]pon the marriage of a person accorded
status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the
Act'').
Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
 430

The respondent, through counsel, admitted the factual allegations, conceded removability as
charged, and sought relief from removal in the form of a discretionary waiver pursuant to section
237(a)(l)(H) of the Act (U at 1-2). The Immigration Judge found the respondent not credible and
denied the request for a waiver, concluding that he did not merit approval as a matter of discretion
(U at 8-12).

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Generally, to qualify for a section 237(a)(l)(H) waiver, an alien must not only be inadmissible
to the United States at the time of admission or adjustment of status but must also demonstrate that
the inadmissibility is linked to fraud or misrepresentation, whether willful or innocent. The alien
must be the spouse, parent, son, or daughter of a United States citizen or lawful permanent resident.
Section 237(a)(l)(H)(i)(I) of the Act. The alien must be in possession of an immigrant visa or
equivalent document at the time of admission and, but for the fraud or misrepresentation, be
otherwise admissible. Section 237(a)(l)(H)(i)(II) of the Act. Finally, the alien must demonstrate
that he or she merits relief in the exercise of discretion. See generally Matter ofAgour, 26 l&N
Dec. 566, 581-82 (BIA 2015) (discussing eligibility); Matter of Tijam, 22 l&N Dec. 408, 412
(BIA 1998).

We review questions of discretion de novo based on the Immigration Judge's findings of fact.
See 8 C.F.R. 1003.l(d)(3)(ii), (iv). The Immigration Judge's factual findings are controlling on
appeal unless they are clearly erroneous. See 8 C.F.R. 1003.l(d)(3)(i). When evaluating a
request for a favorable exercise of discretion under section 237(a)(l)(H), we weigh any adverse
factors evidencing the respondent's undesirability as a permanent resident against the social and
humane considerations presented in his behalf and decide whether, on balance, the respondent's
continued residence in the United States is in the best interests of this country. See
Matter ofTijam, 22 I&N Dec. at 412-13.

As the Immigration Judge found, the respondent has accumulated a number of favorable
considerations that weigh in favor of his request for relief. These considerations include the
respondent's residence in the United States since 1986, when he entered without inspection as a
youth to join his parents (U at 2, 11; Resp. Br. at 5). The respondent also has significant family
ties to this country, including his wife, two children, and mother, who are all United States citizens,
along with his lawful permanent resident father (U at 11; Resp. Br. at 4). Both of the respondent's
parents report health issues (U at 6-7; Tr. at 89, 94). The respondent has been employed by the
State of Texas as a corrections officer (Laundry Captain) for more than 18 years (U at 3;
Resp. Br. at 6). The respondent is also a long-standing member of his church, performs community
service by volunteering at his daughter's school, consistently pays income taxes, and is well
regarded by his friends and co-workers (U at 5, 11; Resp. Br. at 6; Exh. 2, 2A). While the
Immigration Judge observed that the respondent's wife is gainfully employed and that he could
maintain contact because the family lives close to the border of Mexico (U at 12), we have no
reason to doubt that his removal would result in emotional and economic hardship.

As noted by the Immigration Judge, the respondent's adverse factor relates solely to his fraud
and misrepresentation before USCIS (U at 12). The Immigration Judge found the respondent
misrepresented a material fact - his marital status - in his adjustment of status applicatiop. ill 2004,
and his application for naturalization in 2011, and he did not disclose the truth until USCIS
discovered his misrepresentation and confronted him (U at 11-12; Resp. Br. at 7; Exh. 7). The

2
Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
.
. .,

430

Immigration Judge further found that the misrepresentation was willful and was not just a simple
oversight as the respondent argued (IJ at 12; Resp. Br. at 7; Tr. at 19-20). The Immigration Judge
concluded that the respondent's misrepresentation had allowed him to have a full life in the
United States with gainful employment and a close family (IJ at 12).

While this matter presents a close discretionary question, even assuming that the respondent

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was not credible regarding the circumstances of his misrepresentations, we conclude that the
positive factors outweigh the negative in this case. In particular, the Immigration Judge's findings
with regard to the respondent's ties to the United States, his long service as a state corrections
officer, and his considerable civic involvement outweigh the respondent's single misrepresentation
that he continued over the course of two applications. Acknowledging that we are presented with
a very serious negative factor, we conclude that the respondent nonetheless merits a favorable
exercise of discretion. See Matter of Agour, 26 l&N Dec. at 582-83; Matter of Tijam, 22 l&N
Dec. at 412-13.

Based on the totality of the evidence before us, we will reverse the Immigration Judge's
decision denying the respondent's application for a section 237(a)( l )(H) waiver and remand the
matter for the completion of background checks and the entry of an appropriate order.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l (d)(6), the record is remanded to the
Immigration Judge for the purpose of allowing the Department of Homeland Security 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. 1003.47(h).

3
Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS

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File: 430 September 12, 2016

In the Matter of

)
L V B ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 237(a)(1)(A) of the Act, pursuant.to Section 212(a)(6) of the

Act, inadmissible at the time of entry based on misrepresentation.

APPLICATIONS: Waiver pursuant to Section 237(a)(1)(H) of the Act.

ON BEHALF OF RESPONDENT: CYNTHIA CANALES, ATTORNEY

EL PASO, TEXAS

ON BEHALF OF OHS: GRACIELA GIRON, ASSISTANT CHIEF COUNSEL

HOMELAND SECURITY
EL PASO, TEXAS

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 43-year-old married male, native and citizen of

Mexico. He was served with a Notice to Appear on October 10, 2012. Exhibit 1. The

Notice to Appear charges that the respondent is removable under Section 237(a)(1)(A)

of the Immigration Act, and that at the time of entry or adjustment of status, within an

inadmissible class involving fraud, or by willfully misrepresenting a material fact under

.,,,

Section 212(a)(6)(C)(i) of the Act. The respondent through counsel admitted the factual
allegations in the Notice to Appear and conceded that he is removable. Accordingly, I

find that there is clear and convincing evidence to establish he is removable as charged,

and so do find. Mexico was designated for the country of removal. The respondent has

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applied for a Waiver pursuant to Section 237(a)(1)(H) of the Act. The issue before the

Court today is his eligibility for this form of relief.

STATEMENT OF FACT

The Notice to Appear has been marked and admitted as Exhibit 1.

Additionally, the following documents have been marked and received into evidence.

Exhibit 2 was the initial application for the request relief, with various supporting

documents. Exhibit 2A was additional documents in support of the requested relief.

Exhibit 28 were additional documents provided, as noted, they were submitted on the

continued hearing date, and the Court will be giving limited weight to those set of

documents based on when they were submitted and the relevancy contained therein.

Exhibit 3 was a Form 1-213 presented to the respondent. Exhibit 4 was the decision on

respondent's naturalization application. Exhibit 5 was the 485 adjustment of status

application filed by respondent. Exhibit 6 was the N-400 application filed by the

respondent. Exhibit 7 was the record of sworn statement from the respondent.

The respondent testified in support of his application, as well as other

family members. Their testimony is briefly summarized as follows. The Court notes

that it did take into consideration the full, complete testimony of all named respondents

that appeared before this Court. Respondent testified that he is age 43, married to his

naturalized wife. He recalls coming to the United States approximately 1986, that his

parents were in the United States, his father a lawful permanent resident, his mother a

naturalized citizen. He believes his father petitioned for him back in 1991 when he was

approximately age 18. He became a lawful permanent resident in 2004. Respondent

430 2 September 12, 2016

then went on to describe an individual he states assisted him in filing for his petition, a

gentleman by the name of Mr. Ramirez. Respondent does state that when he did

adjust, he was married and had two United States citizen children, presently age 19 and

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15. He presently works as a Texas Correctional Officer, and has done so for 18 plus

years. He is a captain in the correctional department section that he works here in El

Paso, Texas. According to the respondent, he is still together with his wife of many

years. They have a good marriage, and love their daughters.

Respondent states that he failed to disclose his 1995 marriage in petitions

before the Government. He states he does not recall any specific questions dealing

with marriage on the petitions he filed. He does recall applying for naturalization in

2011, which was denied. Respondent then went on to state that he thought his

marriage in Mexico did not count as to Immigration purposes. He admits now he should

have done some more research in that regard, but again, he did not believe his

marriage in Mexico would affect any Immigration petitions and Immigration benefits he

was seeking. The documents he did file indicated a marriage in 2005 to his wife, that

being the marriage in the United States.

On cross-examination, respondent was shown various documentation, to

include Exhibit 5, the 485 adjustment of status application, wherein he was the

signature of that petition, no individual showing helping assist the respondent on that

document. That document does reflect that the respondent stated his marital status as

single when it was submitted in 2003. Again, respondent states in part that he believed

that that prior marriage in 1995 was not a good marriage for Immigration purposes. The

respondent testifies that he was a high school graduate in 2003, and obtained his

Associate degree in 2014. He was also shown the denial letter for naturalization,

Exhibit 4, and the reasons contained therein. Respondent states that he does now

430 3 September 12, 2016

admit that he was wrong in information provided to Immigration.

Respondent, on further examination by the parties, does not remember all

the questions asked during his naturalization application process. Respondent does

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recall, perhaps, this gentleman Mr. Ramirez that was helping him out indicated perhaps,

in part, that if he did state that he was in fact married prior to obtaining his status

through his father, that he might have to start the process all over again. See Exhibit 7,

sworn statement.

The Court then examined the respondent. Respondent testifies that when

he came to the U.S. in 1986, he came across illegally with his parents, and that he was

the oldest sibling to enter the United States. He states he did return to Mexico to marry

his wife in Mexico. He does recall graduating from high school in 1991. He states he

did meet his wife at the high school they both attended, and that they were dating since

1992. When questioner asked do they need to marry in Mexico, respondent in part

states that a portion of his family and his wife's family resided in Mexico, so that by

having a marriage in Mexico, these family members would be able to attend. According

to the respondent, he not only obtained marriage by the church in Mexico, but also by

the Mexican courts, two separate events, and that they stayed in Mexico several weeks

for these events. When questioned, respondent believes that he had approximately 150

people attending the marriage celebration. Further in part, respondent states that, in all

likelihood, these individuals, if questioned, would think that this was in fact a valid

marriage for all purposes.

The Court then reviewed in part several statements from individuals that

were part of respondent's application, Exhibit 2, to include individuals that stated they

knew the respondent and his wife as his wife for 17 years, page 52, and page 48 for 16

years as husband and wife. Further, respondent was questioned as to what he believes

430 4 September 12, 2016

he would have put down on his application for employment with the Texas Correctional

Department as to his marital status. Respondent believes that it is entirely possible he

would have listed himself as married, even though that would have been before the

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marriage in the United States.

On further examination, when the case was reset for further testimony on

today's date, respondent testified that again, his mother is naturalized, his father is a

lawful permanent resident, and that he has brothers and sisters with status in the United

States. He further testifies he has been buying his home with his wife since 2003, that

he also owns several vehicles. He does have a retirement fund set aside of

approximately $40,000 dollars. Turning to volunteer work, the respondent had been

involved for about four years, up until last year, with his eldest daughter's involvement

with the high school band. He also has been recently involved with a youth soccer

team, and also has volunteered with his wife's church for various events.

Examination was then taken from respondent's wife. Her testimony is

summarized as follows. She states that she is married to her husband, and has been

naturalized since approximately 2007. She's known her husband since her senior year

in high school, that they dated several years before betting married, and then getting

married in Mexico. This witness states that she relied in part, and they relied in part,

with advice from this Mr. Ramirez as to how they would proceed with respondent's

Immigration petition, since they were going to get married in Mexico. This witness in

part testified that this gentleman may or may not have said that the marriage in Mexico

would not count, but then also testified that if status was changed from single to

married, that they may have to wait many, many years. This witness states that they

were basically stupid, that they chose the path that saved them time for him to obtain

status in the United States. She states after he obtained his status through his father

430 5 September 12, 2016

that they remarried in the United States. The witness further testifies thafif her

husband, the respondent, is removed, it would be a great hardship to her and her

children, that she is sorry for the mistake he has caused, that he is a good person, and

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that this should not be happening to him. She does not believe she would be able to

deal with his departure, both emotionally and financially.

On cross-examination, the witness does recall basically getting two

options from this Mr. Ramirez as to what could be done, one of those being that they

basically say nothing, let the paperwork run its normal course, or start the process all

over again. On examination by the Court, the witness does confirm both a church

wedding and court ceremony, both in Mexico, where approximately 150 people

attended. She does acknowledge working full time, earning somewhat more than her

husband. She states she filed her 2015 taxes separately from her husband in part to

offset some educational programs wherein payments had to be made.

Testimony was then taken from respondent's oldest daughter. She states

she is age 19, single, and born in the United States. She presently goes both to college

and works. She states that she is very close to her father and lives with her parents.

Her father does pay for her living expenses and still, to some degree, school expenses.

She believes it would be a great impact on the family, to include herself and her

younger sister, if he is removed from the United States.

Testimony was then taken from respondent's father. He states he is age

65, a lawful permanent resident. He has been a lawful permanent resident since

approximately 1979: He is, in fact, the one that filed the petition for his children, to

include the respondent. He does recall a Mr. Ramirez helping out his family with

various petitions. He states he has a very good relationship with his son, the

respondent. He states he does have some health problems and presently does not

430 6 September 12, 2016

work, but that his wife works. He further testifies that if the respondent is removed, it

would be very difficult for him, to include financially. On examination by the Court, the

witness does not recall any specifics as far as how his son obtained his petition

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interview process. He does acknowledge that all his children do collectively provide

support to him, and that he still does return to visit in Mexico on occasion.

Respondent's mother then testified. She states she is age 59 and

naturalized. She has been in the United States since approximately 1982, and been

married to her husband for 44 years. She still does work in the healthcare field. She

states that she has a very good relationship with the respondent, and that he is an

exemplary son. She states also that she has health problems, and that it would affect

her greatly if the respondent is removed. On questioning by the Court, the witness

confirms that her husband, who is disabled, does obtain Social Security benefits of

approximately 790 per month, and further that she lives in her own home with her

husband, separate from the respondent's home. She further testifies that she does take

medication in support of her medical conditions.

STATEMENT OF LAW

A Waiver is authorized for certain misrepresentations, specifically,

237(a)(1 )(H) of the Act states that the provisions of this paragraph relating to the

removal of aliens within the U.S. on the grounds that they are inadmissible at the time of

admission as the alien is described in Section 212(a)(6)(C)(i), whether willful or

innocent, may, in the discretion of the Attorney General, be waived for any alien who is

the spouse, parent, son, or daughter of a citizen of the U.S. or of an alien lawfully

admitted to the United States for permanent residency, and was in possession of an

immigrant visa or equivalent document, or was otherwise admissible to the U.S. at the

time of such admission, except for those grounds of inadmissibility specified under

430 7 September 12, 2016

paragraphs 5, 8 and 70 of Section 212(a), which were a direct result of that fraud or

misrepresentation.

FINDINGS OF THE COURT

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The Court notes that the Board of Immigration Appeals, when considering

237(a)(1)(H) Waivers, has basically incorporated a Matter of Morin type of analysis in

determining whether there should be an exercise of variable discretion for the

respondent is warranted, and that this necessitates a balancing of an alien's

undesirability as a permanent resident with the social and humane considerations

present. See Matter of Tijan, 22 l&N Dec. 408 (BIA 1998). The Court believes it has

done a thorough review of both respondent's positives as well as negative factors in

reviewing respondent's case.

The Court will note at the onset, first, respondent's adverse factors. The

Court will further note that these cases are certainly challenging because, oftentimes, as

is the case in the present case, that respondent's fraud happens many years before he

is brought before this Court, in large part because it is many years before Immigration is

made aware based on future or further applications are further analyzed and reviewed

to determine the original fraud.

That is the situation in the present case. Basically, what this respondent

wishes this Court to believe is that marriages in Mexico have no valid basis in the

United States. While some individuals might carry this misconception, clearly that is not

the law of the land. Further, the Court looks at an individual's background and rationale

for thinking such things, or using those as potential excuses in order to advance

themselves further with their Immigration process. In addition, the Court will find that

such Immigration fraud can in fact be very significant, especially if they're compounded

by respondent's overlooking of certain events in their life to avail themselves of

430 8 September 12, 2016

Immigration benefits.

As the Court informed the respondent, the Court does not believe the

respondent is a credible witness in this regard. The Court believes that the respondent,

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a high school graduate, and now a Correction Officer for many years, knew that his

marriage in Mexico was a significant event, a significant status change in his marital

status. While the respondent several times indicated he was just following advice of a

Mr. Ramirez, the Court notes that respondent's petition filed for adjustment of status

only contains the respondent's signature, and no one helping him with this application.

Exhibit 5. That application, signed by the respondent, with follow-up questions during

an interview process, clearly indicates that the respondent stated he was single during

the process. Based on that fraud, respondent did obtain lawful permanent residence

through his father. Coincidentally, after obtaining status in 2004 by Immigration, the

respondent, the following year in 2005, married his wife again in the United States.

Henceforth, respondent used that 2005 marriage in the United States as his marriage,

at least as far as Immigration purposes are involved. The Court will note as an example

that respondent himself acknowledged, when questioned by this Court, that in all

likelihood, before his 2005 marriage to his wife in the United States, that during an

application process for his current job with the Texas Correctional Department would

have, in all likelihood, indicated he was married, since he was in fact married, married in

Mexico back many years before, in 1995.

Next, the Court looks to the application for naturalization for the

respondent, Exhibit 6, completed by the respondent in 2010. It is noted that he was

sworn to this application in 2011 by an Immigration Officer. There are notations by that

Immigration Officer in 2011 that, as a normal, routine practice, the Government wanted

to be satisfied that the respondent was giving, in fact, actually truthful information.

430 9 September 12, 2016

 Those questions included part A, when asked about marriage, he only indicates his

marriage once, October 2005, and that he claimed as the note indicates that he was

never married prior to October 2005. That would have been an opportunity for

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respondent to have told truthfully to the officer that he was in fact married in Mexico,

and then let that officer determine whether or not that would affect his naturalization

process at the time. Next, part 9 of that application, respondent did indicate children

both in 1997 and 2001, and that they were both born with his current wife, as noted on

the application when questioned by the officer. Further telling is when questioned, he

stated apparently that he was not married at the time his children were born to his wife.

Again, if the respondent was forthright and truthful, he would have brought up the issue

about the marriage in Mexico in 1995, which then permitted him and his wife to start

having children, in effect. But instead, the respondent lied to proceed with

naturalization, basically again compounding the fraud when obtaining his lawful

permanent residency status, and hoping in part, perhaps, that the Government would

not investigate further to determine whether or not the respondent was truthful in also,

now, his naturalization application. However, the Government at this time did in fact

research before verifying the respondent should be in fact granted naturalization. To

that end, there was a sworn statement taken from respondent, Exhibit 7.

In particular, the Court notes some of the telling questions during that

interview, to include question, during the time that they assisted you in completing the

paperwork application, what was their advice to you in regards to completing your

application and your marital status, related to Mr. Roberto Ramirez. Answer, they just

told me that since my application was already put in, just to go along with whatever the

application said. They told me that if I claimed to be married, that I would have to start

the process all over again. While the respondent minimizes that response, that

A -430 10 September 12, 2016

response in a nutshell indicates respondent not only had reason to believe, but for all

practical purposes knew that if he was truthful when obtaining Ia

. wful status that he was

in fact married, that he would in fact have to start the process all over again, and may or

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may not have to wait many years to obtain lawful status based on his new marital status

of married. In effect, the Court finds these to be highly significant events, since the

respondent not only lied once, but at least twice, both for his lawful permanent

residence petition, as well as to his naturalization petition, and it was not only until

confronted later by the Government that the respondent now relates this story of

thinking he, in part as he has testified before this Court, was not sure that their marriage

in Mexico was valid for Immigration purposes.

The Court will note that the respondent does not have any criminal history,

that he does have a very good job working for the state government, that he is very

close to his wife, two children, and parents, all that have status in the United States.

Further, the respondent has been involved with the community in various capacities.

Once again, the Court recognizes all these variable factors in respondent's case, but

again, it begs the question that if respondent was truthful to the officers, he would not

have obtained lawful status when he did, which would not have resulted in his time for

many years to accrue these positive variable factors. Again, the Court does not believe

the Government should be faulted per se that the respondent was able to live his

basically unlawful presence in the United States because the Government did not have,

for whatever reason, the abilities or capabilities back then to question the respondent's

marriage before granting lawful status. That is why the Court believes that it is not

unreasonable to hold the respondent to a standard that it has in this analysis.

This is not the case where the respondent had lawful status in the United

States, committed some violation, and is seeking a waiver. Further, this is not a type of

430 11 September 12, 2016

case where the respondent is seeking adjustment of status before the Court, but

instead, a respondent seeking a Waiver for his fraud before Immigration authorities

many years ago. Once again, the Court believes that it has made a full analysis of both

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respondent's positive as well as negative factors. Once again, the Court acknowledges

the respondent does have numerous positive factors in the United States, further that

respondent's adverse factors relate solely to his fraud and misrepresentation before

Immigration services. Again, the Court finds that to be on two separate occasions. The

Court will find, further, that this was a willful misrepresentation, and not just a simple

oversight by respondent, as respondent wishes this Court to believe. That is what

makes this case come down on the determination by this Court that, based on a willful

misrepresentation to take advantage of the system and then be able to continue having

a full life in the United States with gainful employment and with a close family, that this

Court does not believe it is appropriate to grant such a waiver.

The Court also notes, as was testified to, that while the respondent does

work and provides for his family, that his wife also works, and actually makes more

money than the respondent. That being said, while there might be some financial

hardship if the respondent is removed to both his wife and children and perhaps his

parents, that he is not the sole provider for the family. Further, if respondent is removed

to Mexico, he will still be able to have contact with his family, since the respondent

would be close to the border, where his family in the U.S. resides.

The Court will not and shall not find the respondent, therefore, as

deserving of such Waiver, and therefore the Court will deny, in its discretion, the waiver

pursuant to Section 237(a)(1)(H) of the Act. Therefore, the following order shall be

entered.

ORDER

A0?0-610-430 12 Sptember 12, 2016

 The respondent's request for a 237(a)(1)(H) Waiver is hereby denied.

IT IS FURTHER ORDERED that the respondent be removed from the

United States on the charge contained on the Notice to Appear.

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Please see the next page for electronic

signature
ROBERTS. HOUGH
Immigration Judge

430 13 September 12, 2016

!Isl/

Immigration Judge ROBERT S. HOUGH

houghr on December 15, 2016 at 4:08 PM GMT

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430 14 September 12, 2016