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Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of the respondent’s motion for continuance pending the adjudication of a Form I-130 that would allow him to apply for a waiver under Section 212(h) of the INA. The Board stated that immigration judge did not meaningfully consider the factors listed in Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009), but rather observed that waivers under Section 212(h) of the INA are not typically granted for persons convicted of robbery and that the respondent may not merit favorable exercise of discretion. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of the respondent’s motion for continuance pending the adjudication of a Form I-130 that would allow him to apply for a waiver under Section 212(h) of the INA. The Board stated that immigration judge did not meaningfully consider the factors listed in Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009), but rather observed that waivers under Section 212(h) of the INA are not typically granted for persons convicted of robbery and that the respondent may not merit favorable exercise of discretion. The decision was written by Member Roger Pauley.

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01/09/2014

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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
51071.ees/Jurg Pike. Suite 2000 Falls Church. Virginitl 20530

Eli A. Echols, Esq. Socheat Chea, P.C. 3500 Duluth Park Lane, Building 300 Duluth, GA 30096

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: LOPEZ, MERTON DAVID

A 091-085-417

Date of this notice: 12/13/2013

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

Dc-rutL cl1AAJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Qfjice of the Clerk
5107 Leesburg Pike. Suite 2000 Falls Church. Virginia 20530

LOPEZ, MERTON DAVID A091-085-417 146 CCA ROAD LU MPKIN, GA 31815

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: LOPEZ, MERTON DAVID

A 091-085-417

Date of this notice: 12/13/2013

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a comiesy. 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,

DonnL ct1/Vl.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger

Userteam:

_ � 1 __

Cite as: Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A09 l 085 417 - Lumpkin, GA

·

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Date:

DEC 1 3

2013

In re: MERTON DAVID LOPEZ a.k.a. Martin David Lopez
IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Continuance The respondent, a native and citizen of Honduras, has appealed from the Immigration Judge's decision dated August 15, 2013, denying his request for a continuance to await adjudication of an immediate relative petition (Form 1-130) filed by his United States citizen wife. The record will be remanded for further proceedings. We review findings of fact, ·-friCiudfug the· ..determination of credibility, made by the Immigration Judge under a "clearly en:oneo�s" standard. 8 C.F.R. § 1003. I (d)(3)(i)(2010). We review all other issues, including ci'uestions ·of law and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). As found by the Immigration Judge, the respondent has convictions for robbery and theft by taking for which he was sentenced to a term of imprisonment of 16 years (1.J. at 2). The respondent's robbery offense is a crime involving moral turpitude that would require the respondent to obtain a waiver of inadmissibility under section 2 l 2{h) of the Immigration and Nationality Act, 8 U.S.C. § 1l82(h), to adjust status through his wife's petition, assuming it is favorably adjudicated. Moreover, the offense of robbery is a presumptively a violent and dangerous crime that would require the respondent to meet a height�ned standard of demonstrating extraordinary circumstances that merit a favorable exercise of discretion. See 8 C.F.R § 212.?(d). Pursuant to our decision in Matter of Hashmi, 24 l&N Dec. 785 , 790-92 (BIA 2009) (setting forth factors to consider in determining whether good cause exists for a continuance to await adjudication of a pending visa petitipn),. aii Ifl1:llligration Judge's primary consideration in determining whether to grant a continuance to await adjudication of a pending 1-130 is the likelihood that the petition will b��:PW.C?��1d �� �djustment granted. We indicated in Hashmi that in order to make this determin��1.on, . .an.)rnnugration Judge may need to examine a wide range of factors concerning the merlts.1pf the application for adjustment, including family ties and supporting documentation for any necessary waivers. Id at 792. However, the Immigration Judge's decision only contains an observation that a section 212(h) waiver is not ordinarily granted for crimes such as robbery, and the statement that the respondent's application for adjustment may not merit a favorable exercise of discretion based upon the conviction documents in the record (I.J. at 3). Such pe.���tqry pronouncements do not provide us with { . adequate assurance that due consideration was given to the respondent's motion, particularly in light of the Immigration Judge's admission on the record that he made only a cursory Eli A. Echols, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

A09I 085 417 examination of the respondent's supporting evidence {Tr. at 64). As stated in Hashmi at 794, ... the Immigration Judge should articulate, balance, and explain all ...relevant factors, and any others that may be applicable, in deci�ing whether to grant the respondent a continuance ... " Under the circumstances, we will retur� the�record to the Immigration Judge to provide a more complete explanation of his decision·regarding the respondent's motion for a continuance .
"

Accordingly, the following or�er

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ORDER: The record is remanded to the. Immigration Judge for further proceedings consistent with the foregoing opinion.

Immigrant & Refugee Appellate Center | www.irac.net

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FOR THE BOARD
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Cite as: Merton David Lopez, A091 085 417 (BIA Dec. 13, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UN ITED STATES IMMIGRATION COURT LUMPKIN,GEORG IA

File: A091-085-417 In the Matter of

August 15,2013

Immigrant & Refugee Appellate Center | www.irac.net

) MERTON DAVID LOPEZ RESPON DENT ) ) ) IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(2)(A)(iii) - aggravated felony theft offense.

APPLICATIONS:

None.

ON BEHALF OF RESPON DENT: ELI A. ECHOLS, Esquire ON BEHALF OF OHS: DIANE DODD, Esquire

ORAL DEC I SION OF THE Immigration Judge Exhibits: 1, Notice to Appear; 2, Documents of respondent's April 30, 1997, conviction for robbery and theft by taking (5 pages); 3, Respondent's criminal history chart with Tab A. 4, Respondent's submission in support of the application to adjust his status (132 pages).

1

5, Additional documents in support of respondent's anticipated applications (25 pages). 6, Respondent's proposed applications. Witnesses:

Immigrant & Refugee Appellate Center | www.irac.net

None. FINDINGS OF FACT AN D CONCLUSIONS OF LAW Exhibit 1 was served on respondent on April 1,2013. On April 24,2013, respondent admitted all allegations in Exhibit 1,but denied the charge. On July 17, 2013,respondent changed his plea and conceded the charge in Exhibit 1. In accordance with respondent's pleas and the evidence contained in the file, the allegations at Exhibit 1 are sustained and the respondent is found by clear and convincing evidence to be removable as charged in Exhibit 1. Honduras is designated as the country of removal. Exhibit 2 and Tab A in Exhibit 3 show that on April 30, 1997, respondent was convicted in accordance with his pleas of robbery and theft by taking of a motor vehicle on November 30,1995,in violation of OCGA 16-8-40 and OCGA Section 16-8-2, respectively. Respondent was sentenced to confinement for 16 years. After serving the first seven years in confinement, respondent's balance of eight years confinement was suspended in favor of probation. I find that respondent's conviction for theft by taking categorically is an aggravated felony theft offense under the provisions of INA Section 101(a)(43)(G). It is well-settled that robbery is a crime involving moral turpitude. See Matter of Martin,18 l&N Dec. 226 (BIA 1982). Consequently, I find that respondent's conviction for robbery makes respondent inadmissible. Consequently,he requires a waiver under INA Section 212(h) before he could be granted adjustment of status,assuming that he

A091-085-417

2

August 15, 2013

was eligible for such relief. An 1-130 petition was filed on behalf of respondent on June 25.1m 2013, but it has not yet been approved. Therefore, respondent is not eligible now to apply for adjustment of status. Respondent has asked for a continuance so that his 1-130 can be adjudicated.

Immigrant & Refugee Appellate Center | www.irac.net

As set forth below, I am denying respondent's request after considering factors commonly referred to as the Rajah/Hashmi factors: The Government opposes respondent's request-=A waiver under Section 212(h) normally is not granted in the case of violent and dangerous crimes such as robbery (see Makir-Marwil v. U.S. Attorney General, 681 F.3d 1227 (11th Cir.2012t-:Respondent is not now eligible for adjustment of status because he has no approved 1-130 petition�-=Given the documents contained in the record describing respondent's conviction, I conclude that respondent may not warrant adjustment of status as a matter of discretion (see 8 C.F.R. Section 1212.7(d)fnt, and Matter of Jean, 23 l&N Dec. 373 (BIA 2002t-=- and Following his removal, respondent will not be placed in a position where he is precluded from applying to adjust his status in the future assuming that his 1-130 is approved. Because of his aggravated felony conviction, respondent is ineligible for cancellation of removal or for voluntary departure. Respondent has made no claim of fear of returning to Honduras. Accordingly, I will enter the following order: ORDER Respondent will be removed from the United States to Honduras.

A091-085-417

3

August 15, 2013

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A written order reflecting the above decision will be provided separately and made part of the record.

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next oage for electronic signature
DAN TRIMBLE Immigration Judge

A091-085-417

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August 15, 2013

/Isl/
Immigration Judge DAN TRIMBLE trirnbled on September 23, 2013 at 4:07 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net
August 15, 2013

A091-085-417

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