U.S.

Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals qffice of the Clerk

5107 l.eesb11rg Pike. S11i1e WOO Falls C/111rc/1, Virginia 2204 /

Eric Lafayette 415 E. Broad Street, Suite 1128 Columbus, OH 43215

OHS/ICE Office of Chief Counsel - CLE 1240 E. 9th St., Room 585 Cleveland, OH 44199

Immigrant & Refugee Appellate Center | www.irac.net

Name: CRUZ, OMAR

A089-965-334

Date of this notice: 2/11/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: King, Carol

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Omar Cruz, A089 965 334 (BIA Feb. 11, 2011)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A089 965 334 - Cleveland, OH

Date:

FB 1 ! 2011

In re: OMAR CRUZ

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Eric LaFayette, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

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.

also Matter ofGamboa,

See Matter ofArguelles-Campos, 22 I&N Dec. 811, 817 (BIA

1999).

See

14 I&N Dec. 244, 248 (BIA 1972).

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)

..

...

..

. 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.

Immigrant & Refugee Appellate Center | www.irac.net

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

Immigrant & Refugee Appellate Center | www.irac.net

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:

ON BEHALF OF RESPONDENT: Eric Lafayette, Esquire

ON BEHALF OF DHS: Bruce Imbacuan Assistant Chief Counsel

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

about December 18, February 13, 2009,

the respondent appeared with counsel,

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

requested pre-hearing voluntary departure.

The respondent The respondent

offered testimony in support of that application.

testified that he attempted to enter the United States illegally on three separate occasions in the year 2000. three occasions, On each of those

Immigrant & Refugee Appellate Center | www.irac.net

the respondent was apprehended by Border Patrol The respondent further

officers and returned to Mexico.

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

He has been convicted on one occasion for

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 performed 40 hours

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

A 089 965 334

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

Immigrant & Refugee Appellate Center | www.irac.net

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

the respondent's convictions for theft, his motor vehicle,

having no insurance for

and for two instances of operating a motor

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.

THOMAS W. JANAS Immigration Judge

A 089 965 334

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

Immigrant & Refugee Appellate Center | www.irac.net

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.

June 18. 2009 (completion date}

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.