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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kelly, Edward F.
Adkins-Blanch, Charles K.
Mann, Ana
Userteam: Docket
Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
DOYUtL ct1..AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kelly, Edward F.
Adkins-Blanch, Charles K.
Mann, Ana
(., - :
Userteam::
Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
U.S. Bep!lrtment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated June 27, 2017. The Immigration Judge found the respondent removable,
pretermitted his application for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.C. § 1255, and denied his request for voluntary departure, under section
240B of the Act, 8 U.S.C. § 1229c. On appeal, the respondent requests remand for further
consideration of adjustment of status. The record will be remanded.
Before the Immigration Judge, the respondent sought adjustment of status based on the
approved immigrant visa petition (Form 1-130) that his United States citizen wife filed on his
behalf, which was approved on February 8, 2017. The respondent argues that he is eligible to use
this approval, in conjunction with the 1-130 that was filed on his behalf by his father and approved
in 2002, and in conjunction with a waiver (Form 1-601) under section 212(h) of the Act, 8 U.S.C.
§ l 182(h).
In his June 27, 2017, decision, the Immigration Judge concluded that grandfathering in this
instance is precluded by 8 C.F.R. § 204.2(h)(2) (U at 2-3). The respondent disagrees.
The Legal Immigration and Family Equity Act (LIFE Act)1 temporarily reinstated relief under
section 245(i) of the Immigration and Nationality Act to certain aliens who were ineligible to adjust
status because they were barred under section 245(a) or section 245(c) of the Act. The LIFE Act
Amendments of 2000 extended the sunset provisions for aliens eligible to apply for adjustment of
status under section 245(i) of the Act. In order to be grandfathered under the LIFE Act, the
respondent must: (1) be a beneficiary of an immigrant visa petition that was filed between
January 15, 1998, and April 30, 2001; (2) have been present in the United States on December 21,
2000; (3) currently be the beneficiary of a qualifying immigrant visa petition (either the original
Form 1-130 or 1-140, through which he was grandfathered, or through a subsequently filed
immigrant petition); (4) have a visa immediately available to him; and (5) be admissible to the
United States. In addition, the respondent must establish that adjustment of status is warranted in
1 Pub. L. No. 106-553, as amended by section 1503 of the Life Act Amendments of 2000, Pub. L.
No. l 06-554 (effective December 21, 2000).
Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
f.
1' ;-
A076 �7 552
the exercise of discretion. See sections 245(i)(2)(A)-(B) of the Act; 8 C.F.R. § 1245.10; Matter of
Ilic, 25 l&N Dec. 717, 719 (BIA 2012).
The respondent appears to fall within this group of eligible aliens. The record reflects that the
respondent's father filed a visa petition on his behalf on March 22, 1999. The respondent was
brought into the United States by his parents in 1989, when he was a child, and he did not leave
In his June 9, 2017, decision, the Immigration Judge also said that the respondent cannot apply
for adjustment of status because aliens whose removal orders have been reinstated are ineligible
for adjustment of status (IJ at 2). See section 241(a)(5) of the Act, 8 U.S.C. § 123 l(a)(5). However,
in this case, the Department of Homeland Security (OHS) did not reinstate the respondent's prior
removal order with the filing of a Notice of Referral to Immigration Judge (Form 1-863), placing
him in withholding proceedings pursuant to section 241(a)(5) of the Act. Instead, the OHS filed a
Notice to Appear (Form 1-863), placing him in removal proceedings (Exh. 1).
Finally, in his June 9, 2017, decision, the Immigration Judge said that the respondent cannot
apply for adjustment of status because there is a 10-year bar to adjustment of status if an alien fails
to voluntarily depart the United States within the time period specified (IJ at 2). See section 240B(d)
of the Act, 8 U.S.C. § 1229c(d). However, in this case, it is undisputed that the respondent
complied with the voluntary departure order, but thereafter illegally re-entered the United States.
Consequently, this 10-year bar does not apply.
Consequently, we find it necessary to remand the record for the Immigration Judge to further
consider the respondent's eligibility for adjustment of status.2
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and entry of a new decision.
2 Because of the disposition of this issue, we find it unnecessary to address the other issues raised
on appeal.
Cite as: Omar Urbieta-Guerrero, A076 837 552 (BIA Dec. 6, 2017)
(
In the Matter of
)
OMAR URBIETA-GUERRERO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
September 13th, 2016, the Department of Homeland Security, (OHS), issued and
served on the respondent a Notice to Appear charging him with inadmissibility to and
removability from the United States pursuant to INA Section 212(a)(6)(A)(i), an alien
present in the United States without being admitted or paroled, and Section
212(a)(2)(A)(i)(I), an alien who has been convicted of a crime involving moral turpitude.
truth of the factual allegations on the Notice to Appear and conceded removability as
charged. I conclude that the record establishes by clear and convincing and
unequivocal evidence that the respondent entered the United States without being
present in the United States who has been convicted of a crime involving moral
turpitude. The Notice to Appear is admitted as Exhibit 1. I find, therefore, that the
would like to apply for adjustment of status under Immigration and Nationality Act
Section 245(i). The prior immigration judge set a briefing schedule for the parties to
On June 27th, 2016, this court found that the respondent has not
established statutory eligibility for adjustment of status under 245(i) of the Act. As
adjustment hinges on being able to recapture the prior visa that was approved in the
1990s and upon which the respondent previously adjusted his status to lawful,
permanent residence status in 2002. The respondent has not presented any legal
authority for his theory of the case and his ability to recapture that prior visa.
The primary issue before this court is whether the provisions of 8 C.F.R.
approved visa petition that he has already used to adjust his status to that of lawful,
respondent may not base his eligibility for adjustment of status on his original approved
visa petition which was already used to adjust his status in 2002. The respondent also
orally moved the court to terminate proceedings to allow the respondent to pursue
adjustment of status. The Department of Homeland Security opposed the motion, and
this court denied the motion to terminate finding insufficient cause for terminating
proceedings.
FACTS IN EVIDENCE
The following evidence was presented to the court in this case. Exhibit 1
is the Notice to Appear. Exhibit 2 is the form 1-213, record of deportable, inadmissible
record relating to the same forgery of a commercial instrument, reflecting that the prior
probation was revoked. Exhibit 5 is respondent's application for asylum and for
May 10th, 2017. Nonetheless, that application which was withdrawn will remain marked
through 45. Exhibit 7 is the notice of approval of relative immigrant visa petition
reflecting a classification of IR-1 with a date of approval, February 8th, 2017. Exhibit 8
application for permission to reapply for admission into the United States after
under Section 245(i) with supporting documents consisting of Pages 1 through 209.
Exhibit 12, additional supporting documents for adjustment of status under Section
245(i) application consisting of Pages 210 to 212 according to the table of contents.
permanent resident consisting of Tabs K, L, and M, Pages 210 to 220 according to the
respondent's application for relief under INA Section 245(i). That opposition brief will be
Exhibit 14. And Exhibit 15 will be trial brief in support of application for relief under INA
Section 245(i) submitted by the respondent through counsel. That brief will be Exhibit
15.
VOLUNTARY DEPARTURE:
Section 240B(a), the alien must: (1) make a request for voluntary departure prior to or at
the master hearing at which the case is initially calendared for a merits hearing; (2)
make no additional requests for relief (where if such requests have been made, such
requests are withdrawn prior to any grant of voluntary departure); (3) concede
removability; (4) waive appeal of all issues; and (5) not having been convicted of a
crime described in INA Section 101(a)(43) and is not deportable under INA Section
237(a)(4). In addition, the alien must also convince the court that he is entitled to such
The sole issue before this court at this time is whether the respondent has
that the evidence in the record does not establish that he warrants a favorable exercise
this court considered the positive equities as well as the negative factors in this case.
Among the positive equities considered is that the respondent has been in the United
States for quite some time. He is married to a United States citizen wife and has been
since 2013. He has a legal, permanent resident mother in the United States and a
legal, permanent resident father in the United States. His mother suffers from diabetes,
and his father is disabled due to failed sight. The respondent also has three United
States citizen children. Considered against those positive equities are the negative
factors to include his 2002 state jail felony conviction for forgery of a commercial
instrument for which he was sentenced to three years probation. Prior to completing his
probation successfully, he was, in fact, found in violation of probation, and his probation
was revoked in 2005. He was then required to spend six months in jail. According to
the respondent, his probation was violated because he did not pay required fees, he did
not complete required community service, and he did not attend GED classes that he
was required to attend. And the respondent also admitted that while he was in prison in
that gang, as he stated, for four months. And he has a Tango Blast gang member
tattoo on his body. The respondent illegally entered the United States in 1989. He
adjusted his status to legal, permanent resident in 2002. In 2010 he was placed in
immigration proceedings, and he was granted voluntary departure. The court takes this
as a grant of a second chance. The respondent testified that he departed the United
States voluntarily as required within the time frame required but that he reentered the
United States illegally in 2011, and he was thereafter apprehended by ICE in 2016.
equities in this case finds that the negative factors outweigh the positive equities. Of
departure. And yet the respondent is once again coming before this court asking for yet
another chance when he was previously given a chance. Considering the totality of the
circumstances, specifically his prior immigration history, his prior gang involvement, his
prior state jail felony, to include not only the initial conviction in 2002, but the resulting
and subsequent probation violation stemming from the respondent's inability to comply
voluntary departure. This court finds that the negative factors outweigh the positive
factors such that the respondent has not established that he is deserving or merits
CONCLUSION
under Section 245(i) of the Act. And while I find that the respondent may appear
statutorily eligible for preconclusion voluntary departure, I do not find that he warrants
such relief as a matter of discretion. Considering the evidentiary record, I find that the
ORDERS
JUSTIN F. ADAMS
U.S. Immigration Judge