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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Khan, Zan OHS/ICE Office of Chief Counsel - NYC
Youman Madeo & Fasano 26 Federal Plaza, 11th Floor
299 Broadway, Suite 810 New York, NY 10278
New York, NY 10007

Name: L ,S L M . A 703

Date of this notice: 9/29/2017

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:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

RuselH
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: S-L-M-L-, AXXX XXX 703 (BIA Sept. 29, 2017)


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

Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 703 -New York, NY Date: SEP 2 9 2017

In re: S L M L

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Zan Khan, Esquire

APPLICATION: Cancellation of removal under section 240A(a)

The respondent, a native and citizen of Jamaica who adjusted her status to that of lawful
permanent resident in 1987, appeals from the Immigration Judge's December 30, 2016, decision
denying her application for cancellation of removal under section 240A(a) of the Immigration and
Nationality Act, 8 U.S.C. 1229b(a). The Department of Homeland Security has not filed an
opposition to the respondent's appeal. The appeal will be sustained, and the record will be
remanded.

We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i),
(ii).

The Immigration Judge's factual findings, as set forth below, are not in dispute. She found the
respondent statutorily eligible for cancellation of removal but denied relief in the exercise of
discretion. On review, we look at whether the Immigration Judge, in exercising discretion in
determining whether to grant cancellation of removal, considered the totality of the evidence and
properly weighed the positive and negative factors presented. Matter of C-V-T-, 22 I&N Dec. 7,
11 (BIA 1998).

The respondent presented significant equities in her favor. The respondent immigrated to the
United States at the age of 19 and has been a lawful permanent resident for more than 30 years.
As the Immigration Judge observed, the respondent has strong family ties to the United States,
including her three United States citizen children, father, grandchildren, and numerous extended
family members. The respondent's family members would suffer significant hardship upon her
removal. Likewise, the respondent would suffer hardship, as she has few if any resources available
in Jamaica, and is currently receiving treatment for depression, compulsive disorder, and PTSD
resulting from traumatizing events she has experienced.

At the same time, the respondent has undermined her equities with a criminal history that spans
many years and includes twelve arrests, a majority of which involve shoplifting. As the
Immigration Judge noted, especially concerning is that the respondent continued to reoffend even
after the commencement of removal proceedings. We share the Immigration Judge's
condemnation of the respondent's failures to obey the law. Nonetheless, without diminishing the
seriousness of the respondent's misconduct, we do recognize that she has not been convicted of

Cite as: S-L-M-L-, AXXX XXX 703 (BIA Sept. 29, 2017)
...

703

any violent crimes, and that the majority of the offenses occurred over 11 years ago. The
respondent has a single offense, for shoplifting, in the last 6 years and has returned to therapy with
a prognosis of "good" (IJ at 3). Accordingly, while her criminal history weighs heavily against
her, it is not determinative vis-a-vis the exercise of discretion.

This is a close case, as there are both substantial equities and significant criminal conduct. In

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the balancing, however, we look to the respondent's credible testimony and the fact that she
appreciates how her actions have jeopardized her life in the United States and adversely affected
her family. The respondent's testimony reflects remorse and a commitment to rehabilitation. We
also understand that her strong family support in the local area - as evidenced by affidavits from
numerous family members and the testimony of her son and clinical psychologist - will facilitate
further rehabilitation going forward. In sum, the record persuades us that the respondent merits
the 'one last chance' that this relief is intended to provide.

Thus, while we commend the Immigration Judge on her thoughtful consideration of this case,
we find, upon de novo review, that the balance of both positive and negative factors warrants a
favorable exercise of discretion. Accordingly, we will sustain the respondent's appeal and find
that she merits the relief she seeks. 1 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 OHS 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). See Background
and Scu_rity In_vestigations in Proceedings Before Immigration Judges and the Board of
Immigration Appeals, 70 Fed. Reg. 4743, 4752-54 (Jan. 31, 2005).

FOR TH OARD

1 We caution the respondent, however, that any future misconduct on her part could result in
additional proceedings against her and admonish that this relief will not be available to her in the
future. See section 240A(c)(6) of the Act.

Cite as: S-L-M-L-, AXXX XXX 703 (BIA Sept. 29, 2017)
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U.S. Department of Justice

Executive Office for Immigration Review

Immigration Court

26 Federal Plaza, 12'h Floor Room 1237

New York, New York 10278

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File: 703 - New York
----------------------------------------x
In the Matter of

L , S L M In Removal Proceedings

Respondent
-----------------------------------------
x

On behalfofRespondent: On behalfofDHS:
Zan Khan, Esquire Priscilla Gabela, Esquire

DECISION

This matter is again before me upon remand from the Board ofImmigration Appeals to
consider respondent's application for reliefunder Section 240A(a) ofthe Immigration and
Nationality Act. I I herein incorporate, in its entirety, my prior oral decision ofOctober 17, 2002.

The respondent, a native and citizen ofJamaica, entered the United States March 13,
1987, and was admitted as a lawful permanent resident. She was then 19 years old. She is now
48 years old. She has updated her written application for reliefunder Section 240A(a), and has
provided documentation in support thereof. [See Exhibits R-1, R-2, through R-8.] Respondent
has also provided the very compelling testimony ofher son to expand upon the efforts she has
made toward rehabilitation, and the hardship he and his sisters will experience upon their mother's
removal from the United States. The parties stipulated that the respondent's two daughters would
likewise testify to a close and loving relationship with the respondent, and the devastating impact
ofher removal on them. The oldest daughter relies upon respondent for childcare assistance, and
the youngest is a college student. The children, ages 27, 32 and 18, perceive the respondent as the
"glue" in their family. This credible, stipulated testimony has also been considered by me in
considering the respondent's application for relief.

Respondent also provided the expert testimony of Dr. Megan Seltz, Ph.D., who is a
clinical psychologist, and who provided her opinion ofthe effects ofremoval upon respondent, her

l Respondent, through counsel, had requested that OHS exercise prosecutorial discretion and agree to
administratively close these proceedings. [Exhibit R-6.] OHS has declined to do so. Administrative closure might
have pennitted the respondent additional time to demonstrate rehabilitation, a significant factor in my decision in this
matter.
,,. ' (

family, and an assessment of the prognosis for respondent's rehabilitation. [Exhibit R-8.] Dr.
Seltz observed that the respondent is "better" now than in 2010, and assessed her prognosis for
recovery as "good." Dr. Seltz had reviewed a "rap sheet" regarding respondent's criminal
history, and observed that she has recommended changes in the therapy respondent received to
improve its effectiveness. She believes that respondent is "in a better place than she was." Dr.
Seltz also commented on several events in respondent's life (sexual abuse at the age of 15,
observing the murdered bodies of the father of one of her children and his son, and the home

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invasion that kept her captive in her sister's home), as factors that may have played into her current
situation. These were certainly very traumatizing events, and understandably may be a part of the
respondent's psychological difficulties.

As she was in 2002, when she first appeared before me, the respondent appears to be
statutorily eligible for the relief sought under Section 240A(a) of the Act, and the only issue is
whether she should be granted that relief in the exercise of discretion. It is the burden of the
respondent to demonstrate that relief is warranted in the exercise of discretion. Matter ofC-V-T-,
22 I&N Dec. 7, 10 (BIA1998). The Board has held that the general standards developed for the
exercise of discretion under former IN A Section 212(c ) are also applicable to the exercise of
discretion. The discretionary determination will depend in each case on the nature and
circumstances of the ground of removability sought waived and on the presence of any additional
adverse matters. Matter ofSotelo-Sotelo, 23 I&N Dec. 201 (BIA 2001).

The court should consider the record as a whole and balance the adverse factors evidencing
the alien's undesirability as a permanent resident with the social and humane considerations
presented in his favor to determine whether a grant of relief would be in the best interest of this
country. C-V-T, 22 I&N Dec. at 11. There is no threshold requirement that the applicant
demonstrate unusual or outstanding equities; rather, the court must weigh the favorable and
adverse factors to balance the "totality of the evidence" before reaching a conclusion as to whether
the applicant warrants a grant of cancellation of removal in the exercise of discretion. In some
cases, the minimum equities required to establish eligibility for relief (i.e., residence for at least
seven years and lawful permanent resident status for at least five years) may be sufficient to
warrant relief. However, as the negative factors grow more serious, it becomes incumbent upon
the alien to introduce additional offsetting favorable evidence, which in some cases may have to
involve unusual or outstanding equities.

The positive factors to be considered include, but are not limited to, family ties in the
United States, residence of long duration, evidence of hardship to the applicant and her family, a
history of employment, existence of property or business ties, proof of genuine rehabilitation if a
criminal record exists, and other evidence attesting to the applicant's good moral character.
Matter ofEdwards, 20 I&N Dec. 191 (BIA 1990); Matter ofMarin, 16 I&N Dec. 581 (BIA 1978).
Adverse factors to be considered include the nature and underlying circumstances of the removal
ground at issue and any other evidenc.e that could be indicative of an applicant's bad character or
undesirability as a permanent resident. C-V-T-, 22 l&N Dec. at 11.

Since her admission into the United States in 1987, Respondent has been arrested
approximately twelve times for various offenses, including Petit Larceny, attempted Petit Larceny,
Disorderly Conduct, assault, petit larceny with risk of injury, and larceny with breach of peace.
 . '
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[Exhibit R-2.] At the time of my 2002 decision, she had been arrested approximately six times.
Since then, she has been arrested for an additional six offenses, all while respondent has been in
removal proceedings. Her arrests date from 1993, through 2015, a period of over twenty years.
Even though most of the offenses relate to shoplifting, this record is a substantial adverse factor,
especially considering its recency, and poses a significant hurdle to a favorable exercise of
discretion.

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The equities presented by the respondent are as substantial today as they were in
2002. She has three United States citizen children and a grandchild who rely upon her to maintain
their family stability (she is the "glue" in the family, or the "matriarch"). Although her mother
has died during the pendency of these proceedings, she still has her father and siblings living in the
United States. She has presented letters from family and friends regarding her character and her
religious activities. She has few if any resources available in Jamaica, particularly if she wishes
to continue therapy for her disorders relating to her criminal behavior. She has been a lawful
permanent resident for almost thirty years, and this residence was incepted at a relatively early age
(19). Nevertheless, I can not find that respondent has met her burden of demonstrating that she
merits a favorable exercise of discretion. The repetitive nature of the offenses, continuing
through the pendency of these proceedings, and as recently as 2015, weighs heavily against
discretion, even though the testifying expert assesses her prognosis as "good." She has
previously gone for therapy, but stopped and re-offended. Her most recent therapist describes
respondent as "compliant" and suggests a sincere effort at rehabilitation. However, this therapy
began only in 2016. While the prognosis by Dr. Seltz ("good") is encouraging, and her analysis
of the respondent as suffering from a compulsive disorder, depression and perhaps PTSD is
illustrative of respondent's difficulties, it is insufficient to tip the balance in her favor. I have
reluctantly concluded that I must again deny the application for relief. Her commendable efforts
at rehabilitation are too recent to suggest that respondent is able to overcome the behavior pattern
of twelve arrests. Accordingly, the following order will be entered:

ORDER: IT IS ORDERED that the application for cancellation of removal under Section
240A(a) is DENIED.

IT IS FURTHER ORDERED that the respondent be removed from the United States to
Jamaica on the charge contained in the Notice to Appe March 21, 2001.

/(}u_ -3 t).
Date: Patricia A. Rohan
a-tJ Iw Immigration Judge