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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk

5107 leesburg Pike. Suite 2000
Falls Church. Virg1ma 22041

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BANUELOS, EMILIA C. OHS/ICE Office of Chief Counsel • PHO
Banuelos Law Office 2035 N. Central Ave.
6816 N. 27th Avenue Phoenix, AZ 85004
Phoenix, AZ 85017

Name: URIAS AGUILAR, GUSTAVO A 203-097-416

Date of this notice: 9/5/2017

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:
Wendtland, Linda S.
Greer, Anne J.
Cole, Patricia A

Userteam: Docket

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Cite as: Gustavo Urias Aguilar, A203 097 416 (BIA Sept. 5, 2017)
.- I,

U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A203 097 416 - Phoenix, AZ Date:
SEP - 5 2017
In re: Gustavo URIAS AGUILAR

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Emilia C. Banuelos, Esquire

APPLICATION: Adjustment of Status

The respondent appeals the Immigration Judge's September 19, 2016, decision denying his
application for adjustment of status under section 245(a) of the Immigration and Nationality Act,
8 U.S.C. § 1255(a) (2012). The Department of Homeland Security has not responded to the appeal.
The appeal will be sustained, and the record will be remanded to the Immigration Judge.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
§ 1003.1(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent was admitted to the United States on May 21, 2010, as an H2A nonimmigrant.
temporary worker (IJ at 2; Exh. 1). On January 20, 2004, the respondent's United States citizen
wife had filed a visa petition on his behalf, which was ultimately approved, after which the
respondent applied for adjustment of status (IJ at l; Exh. 3). The United States Citizenship and
Immigration Services ("USCIS") denied the respondent's adjustment application, and charged him
with removability under section 237(a)(l)(B) of the Act, 8 U.S.C. § 1227(a)(l)(B), for having
remained in the United States for a time longer than permitted in violation of law after being
admitted as a nonimmigrant (IJ at 1; Exhs. 1, 2).

The Immigration Judge found that the respondent was not credible (IJ at 4-5), 1 and denied his
application for adjustment of status based on a determination that he is inadmissible under section
212(a)(9)(C)(i)(I) of the Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I) (IJ at 5-6). See section 245(a)(2) of
the Act (stating that applicants who were inspected and admitted or paroled into the United States
may adjust status if they are admissible for permanent residence). However, relying on the facts

1 Aside from attempting to explain why he gave inconsistent testimony during his hearing, the
respondent does not meaningfully challenge on appeal the Immigration Judge's adverse credibility
finding as clearly erroneous (Respondent's Brief at 4-5). Thus, the respondent waived appeal of
the Immigration Judge's adverse credibility finding. See Matter ofG-G-S-, 26 l&N Dec. 339, 340
n.2 (BIA 2014) (holding that issues that are not raised in a brief are deemed waived).

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A203 097 416

as found by the Immigration Judge,2 we conclude upon our de novo review that the respondent is
not inadmissible under section 212(a)(9)(C)(i)(I) of the Act, and is therefore not statutorily
ineligible for adjustment of status on the basis of this ground of inadmissibility under section
245(a)(2) of the Act.

Under section 212(a)(9)(C)(i)(I) of the Act, an alien who has been unlawfully present in the

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United States for an aggregate period of more than 1 year is inadmissible if he enters or attempts
to reenter the United States without being admitted. See Matter ofBriones, 24 I&N Dec. 355 (BIA
2007). In this case, the Immigration Judge found that the respondent spent six independent
3-month periods in the United States after entering without inspection (IJ at 6; Exh. 5). These
periods occurred during the following years: 1996, 1997, 1998, 2000, 2003, and 2006 (IJ at 6; Exh.
5). The Immigration Judge concluded that the respondent became inadmissible under section
212(a)(9)(C)(i)(I) of the Act when he entered the United States without inspection for the final
time in June 2006, because at that point in time he had accrued 15 months of unlawful presence
from his five previous unlawful entries in 1996, 1997, 1998, 2000, and 2003 (IJ at 3-6). See section
212(a)(9)(C)(i)(I) of the Act.

On appeal, the respondent argues that the aggregate period ofunlawful presence is determined
by adding together all of the periods of time during which he was unlawfully present in the United
States on or after April 1, 1997, the effective date of section 212(a)(9)(C)(i)(I) of the Act
(Respondent's Brief at 5-6). In applying this proposed framework, the respondent contends that
his only applicable periods of unlawful presence are those he accrued in 1998, 2000, and 2003
(Respondent's Brief at 5-6).

Section 212(a)(9) of the Act was enacted pursuant to section 301(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009546, 3009-575 (effective Apr. 1, 1997) ("IIRIRA"). See Matter of Torres-Garcia, 23 l&N
Dec. 866, 868 n.2 (BIA 2006). The Board has previously held, in addressing another subsection
of section 212(a)(9) of the Act, that Congress expressly declined to make the provisions ofsection
30 l (b) oflIRIRA retroactive with regard to that subsection. See Matter ofRodarte, 23 I&N Dec.
905, 911 (BIA 2006) (holding that April 1, 1997, the effective date of IIRIRA, is the starting point
for the accrual of a continuous period of unlawful presence for purposes of inadmissibility under
section 212(a)(9)(B)(i)(II) of the Act).

Statutes are presumed to be prospective unless Congress has unambiguously indicated that
they apply retroactively. See Vartelas v. Holder, 566 U.S. 257, 266 (2012) (citing Landgrafv. US/
Film Prods., 511 U.S. 244, 263 (1994)). Thus, in determining whether a statute has an
impermissible retroactive effect, we first look to congressional intent. See INS v. St. Cyr, 533 U.S.
289, 316 (2001). In the absence of clear congressional intent to apply a statute's provisions
retroactively, we next look to whether the statute "attaches new legal consequences to events

2 The Immigration Judge's reliance on other evidence aside from the respondent's incredible
testimony to identify the relevant time periods ofthe respondent's unlawful presence in the United
States was not clearly erroneous (IJ at 6).

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A203 097 416

completed. before its enactment," to determine whether it produces an impermissible retroactive
effect. INS v. St. Cyr, 533 U.S. at 321 (quoting Landgrafv. US/ Film Prods., 511 U.S. at 270).

Upon our review of the statute, we are not convinced that section 30 l(b) of IIRIRA
unambiguously indicates that section 212(a)(9)(C) applies retroactively to periods of unlawful
presence accrued before the effective date. Moreover, under the immigration law in effect when

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the respondent accrued his first 3-month period of unlawful presence in the United States in 1996,
no period of unlawful presence would have made him inadmissible upon his departure and
subsequent unlawful reentry. Thus, applying section 212(a)(9)(C) to periods of unlawful presence
prior to April 1, 1997, the effective date of IIRIRA, would have a significant retroactive effect
that is impermissible without a clear indication of congressional intent. See INS v. St. Cyr,
533 U.S. at 325.

In addition, the USCIS does not apply IIRIRA retroactively in determining inadmissibility
under section 212(a)(9)(C)(i)(I). See United States Citizenship & Immigration Services
Adjudicator's Field Manual § 40.9.2(a)(4)(B) (July 18, 2017), https://www.uscis.gov/ilink/
docView/ AFM/HTML/ AFM/O-O-O- l/0-0-0-17138/0-0-0-18383.html#0-0-0-1847 (stating that an
alien's aggregate unlawful presence under section 212(a)(9)(C)(i)(I) is determined "by adding
together all periods of time during which an alien was unlawfully present in the United States on
or after April 1, 1997"). Thus, we conclude that section 212(a)(9)(C)(i)(I) of the Act only applies
to periods of unlawful presence that are accrued on or after April 1, 1997, the effective date of
IIRIRA.

In applying our conclusion to the facts of this case, we note that the Immigration Judge found
that of the five 3-month periods from 1996 until June 2006 that the respondent spent in the United
States after entering without inspection, four of these periods occurred on or after April 1, 1997
(IJ at 3, 6; Exh. 5).3 Thus, when the respondent last entered the United States without inspection
in June 2006 (IJ at 6), he had only accrued an aggregate of 12 months of unlawful presence, and
therefore this unlawful entry does not render him inadmissible. See section 212(a)(9)(C)(i)(I) of
the Act (requiring an unlawful entry after acquiring an aggregate period of unlawful presence of
more than 1 year in the United States) (emphasis added); see also Matter ofBriones, 24 I&N Dec.
at 358.

Moreover, the most recent periods of unlawful presence by the respondent, namely his stay
after his final 2006 unlawful entry and his overstay after his May 2010 admission (IJ at 6; Exh. 1),
do not accrue for section 212(a)(9)(C) purposes because the unlawful presence must precede both
a departure and a subsequent unlawful entry. See Matter ofRodarte, 23 I&N Dec. at 910; section
212(a)(9)(C)(i)(I) of the Act (covering aliens who are unlawfully present for more than 1 year and
then enter or attempt to reenter without being admitted).

3 Although the respondent appears to argue that he was not unlawfully present during 1997
(Respondent's Brief at 3, 5), we conclude that he did not accrue the requisite period of unlawful
presence even if the Immigration Judge's finding that he was unlawfully present in the United
States during the months of May, June, and July in 1997 was correct (IJ at 3, 5; Exh. 5).

3

Cite as: Gustavo Urias Aguilar, A203 097 416 (BIA Sept. 5, 2017)
Al 03 097 416

In sum, we conclude that the respondent is not inadmissible under section 212(a)(9)(C)(i)(I) of
the Act, and thus is not statutorily ineligible to adjust status based on this ground of inadmissibility.
We therefore remand this case for the Immigration Judge to determine whether the respondent is
otherwise eligible for adjustment of status under section 245(a) of the Act.4

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Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings and for the entry of a
new decision consistent with this opinion.

Board Member Patricia A. Cole respectfully dissents. This record does not support the
majority's finding that the respondent had only accrued an aggregate of 12 months of unlawful
presence, The Immigration Judge found the respondent not credible because of the inconsistencies
between the respondent's testimony and other evidence of record. In addition the respondent
provided no evidence of his time in the United States between July, 2003 and June, 2006. Also,
the majority's finding that section 212(a)(9)(C) does not apply retroactively is not persuasive.

4 Given the foregoing disposition, we need not reach the respondent's other appellate arguments
at this time.

4

Cite as: Gustavo Urias Aguilar, A203 097 416 (BIA Sept. 5, 2017)
(
,,
SEP 1 9 2016
,

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
200 EAST MITCHELL DRIVE, SUITE 200
PHOENIX, ARIZONA 85012

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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
URIAS-AGUILAR, Gustavo ) FILE NO.:. A203-097-416
)
)
Respondent ) DATE: September 19, 2016

CHARGE: Section 237(a)(l)(B) of the Immigration and Nationality Act, in that after
admission as a nonimmigrant under 10l(a)(l5) of the Act, the respondent
remained in the United States for a time longer than permitted in violation
of the Act or any other law of the United States

APPLICATIONS: Adjustment of Status under section 245(a) of the Act
Voluntary Departure under section 240B(b) of the Act

MOTION: Administrative Closure

On Behalf of the Respondent: On Behalf of the Government:
Emilia C Banuelos, Esq. Jennifer I. Gaz, Esq.
Banuelos Law Office Assistant Chief Counsel
6816 North 27th Avenue Department of Homeland Security
Phoenix, Arizona 85017 2035 North Central Avenue
Phoenix, Arizona 85004

DECISION AND ORDER OF THE IMMIGRATION COURT

I. PROCEDURAL HISTORY

On January 20, 2004, the respondent's United States citizen wife, Hilda Urias, filed a
Form 1-130, Immigrant Petition for Relative, Fiance(e), or Orphan ("1-130"), with the United
States Citizenship and Immigration Services ("USCIS") naming the respondent as beneficiary.
Ex. 3. The respondent's 1-130 was approved on December 17, 2010. Ex. 3, Tab A. Based upon
this approved 1-130, the respondent filed Form 1-485, Application to Register Permanent
Residence or Adjust Status ("Adjustment Application"), with USCIS on August 6, 2010. Id. On
November 16, 2010, the respondent was interviewed by USCIS, who determined that the
respondent was removable and referred his Adjustment Application to Court. Ex. 2.

On May 11, 2011, the Department of Homeland Security ("DHS") served a Notice to
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Appear ("NTA") upon the respondent, charging him as removable pursuant to section
237(a)(l)(B) of the Immigration and Nationality Act ("INA" or "the Act''), as amended, in that
after admission as a nonimmigrant under section 10l(a)(l5) of the Act, the respondent remained
in the United States for a time longer than permitted, in violation of this Act or any other law of
the United States. Ex. 1. In support of this charge, OHS alleged that the respondent: (1) is not a
citizen or national of the United States; (2) is a native and citizen of Mexico; (3) was admitted to

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the United States at Nogales, Arizona, on or about May 21, 2010, as a nonimmigrant temporary
worker, H2A, with authorization to remain in the United States for a temporary period of stay not
to exceed August 10, 2010; and (4) remained in the United States beyond August 10, 2010,
without authorization from the Immigration and Naturalization Service or its successor the
Department of Homeland Security. Id.

At master calendar proceedings held on September 12, 2013, the respondent, through
counsel, admitted the allegations in the NTA, conceded the charge of removability pursuant to
section 237(a)(l)(B) of the Act, and designated Mexico as the country of removal. Based on the
respondent's admissions and concession, the Court found that the DHS charge of removability
under section 237(a)(l)(B) of the Act was sustained by clear and convincing evidence.

The respondent testified in support of his application for relief at an individual hearing
1
held on August 30, 2016, before this Court.

A number of documents relating to the respondent's case have been entered into the
record as follows:

Exhibit 1 Notice to Aooear, issued May 11, 2011
Exhibit 2 Form 1-213, Record ofDeoortable/lnadmissible Alien, filed June 6, 2011
Exhibit 3 The respondent's Form 1-485 and Form 1-130, filedDecember 5, 2011
Exhibit 4 Documents in Support of Respondent's Application for Relief, filed January 29,
2015
Exhibit 5 Letter from the respondent's employer, file February 18, 2016
Exhibit 6 Respondent's Position on Relief, filed June 15, 2016
Exhibit 7 USCIS Record of Sworn Statement, filed Aue:ust 30, 2016
Exhibit 8 Form G-325, Biographic Information, for the respondent's wife, filed August 30,
2016
Exhibit 9 Form G-325, Biol?I'aphic Information, for the resoondent, filed August 30, 2016

II. STATEMENT OF THE CASE

A. The Respondent's Testimony

The respondent testified in support of his Adjustment Application at an individual
hearing on August 30, 2016. His testimony is summarized below.

1 The respondent testified through an interpreter in the Spanish language.

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The respondent testified that he first entered the United States without inspection in 1996
through Tijuana, Mexico, and stayed for approximately one month. He testified that his next
entry without inspection occurre d in 1998, through San Luis, Arizona, and that he stayed for
between 30 and 34 days. He testified that his third entry, also through San Luis, occurred in
2000, that he stayed for 40 days, and that he was stopped by Customs and Border Patrol at that
time. He testified that his fourth entry occurred in 2003 through San Luis, and that he stayed for
approximately 60 days at that time. He testified that his last entry without inspection occurred in

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2006 through San Luis, and that he stayed for 40 days; he later testified that he stayed for 60
days on this occasion. He testified that in 2008 he received his first H2A visa, at which point he
began to stay in the United States for 2 or 3 months at a time, cutting cantaloupes.

When asked to explain the discrepancy between his sworn statement to USCIS, in which
the respondent states that he would stay in the United States for three to four months, and his
testimony in which he testifies that he usually was only present in the United States for 30 to 40
days, the respondent testifies that in his interview with USCIS his reference to three or four
months only referred to the time he spent in the United States after receiving his H2A visa.

B. Documentary Evidence

The respondent has submitted several pieces of evidence for consideration by the Court.
Whether or not they are specifically mentioned below, the Court has considered and evaluated
each document submitted to the Court.

For purposes of identification, the respondent has submitted photocopies of several H2A
entry visas and a photocopy of his Mexican birth certificate. Ex. 5, Tab A. He also submitted a
copy of his marriage certificate, indicating he was married to Hilda Felix, now Hilda Urias, on
July 15, 2010, and a copy of Hilda Urias's Certificate of Naturalization. Id.

In regards to the time the respondent spent in the United States prior to obtaining legal
status, the respondent submitted a letter from Juan Jose Ley-Chaidez, the general manager of the
respondent's seasonal Mexican employer, Del Campo. Ex. 5. The letter indicates the respondent
was absent from Del Campo and spent the following months in the United States:

Year Months spent in the United States
1996 May, June, and July
1997 May, June, and July
1998 May, June, and July
2000 May, June, and July; specified as 90 days
2003 May, June, and July; specified as 90 days
2006 June, Julv, and Auirust; specified as 90 days

The letter states that the respondent worked full time for the company through 2008, with the
exception of the months listed above. Id.

Also relating to the respondent's time spent in tlie United States prior to obtaining legal

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status, DHS submitted a Record of Sworn Statement from the respondent's November 10, 2010
interview with USCIS. Ex. 7. During the interview, the respondent states that he first came to the
United States in approximately 1996, and "came every year from 1996 through 20 l 0 for the
harvesting season." Id. The sworn statement then contains the following exchange:

Q. How did you enter the United States for the harvesting season from 1996

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through 2008?
A. Illegal

Q. When you say illegal do you mean without inspection?
A. Yes

Q. How long did you stay each time?
A. About three to four months.

Id. The respondent also informed the USCIS interviewer that he was issued his first visa in May
2008. Id.

ID. ANALYSIS

A. Credibility

As an initial matter in determining whether an applicant meets the statutory criteria for
any of the forms of relief he or she may request, the Court must make a threshold determination
regarding the credibility, persuasiveness, and factual basis of the applicant's testimony. INA §
240(c)(4)(B). If an applicant filed his or her application for relief from removal on or after the
May 11, 2005, date of enactment of the REAL ID Act of 2005, this credibility determination is
governed by the REAL ID Act provisions regarding credibility. Pub.L. No. 109-13, 119 Stat.
231. The INA provides that the credibility of a witness is assessed in the following manner:

Considering the totality of the circumstances, and all relevant factors, the
immigration judge may base a credibility determination on the demeanor, candor,
or responsiveness of the applicant or witness, the inherent plausibility of the
applicant's or witness's account, the consistency between the applicant's or
witness's written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in such
statements, without regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant's claim, or any other relevant factor.

INA§ 240(c)(4)(C).

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Under the REAL ID Act, even minor inconsistencies can support an adverse credibility
finding. Jibril v. Gonzales, 423 F.3d 1129, 1138 n. l (9th Cir. 2005). For purposes of an adverse
credibility determination, the applicant must be given an opportunity to explain or deny any
discrepancies or inconsistencies, and the Court must consider the applicant's reasonable and
plausible explanations. Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004); Singh v. Gonzales,
439 F.3d 1100, 1105 (9th Cir. 2006); Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).

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The respondent filed his initial application for adjustment of status on August 6, 2010.
Therefore, his claim is governed by the REAL ID Act. See REAL ID Act (stating that the REAL
ID Act applies to requests for relief filed on or after the May 11, 2005, date of enactment).

Under the REAL ID Act credibility standard, the Court fmds that the respondent has not
provided credible testimony. His testimony regarding his entries into the United States contained
numerous inconsistencies with the sworn statement the respondent made to USCIS and the letter
he provided from his Mexican employer. Both the sworn statement and the employer's letter
indicate that every time the respondent came to the United States he stayed in the country for
approximately three to four months. However, the respondent testified in Court that most of
these trips to the United States lasted only 30 to 40 days. While some amount of generalization is
expected when a person refers to time spent in months, three to four months is nowhere near the
same as 30 to 40 days. Furthermore, the respondent only began indicating that his trips were
short�r than three months when it became clear that he might be subject to a the illegal re-entry
bar pursuant to section 212(a)(9)(C)(i)(I) of the Act.

Because of the large inconsistencies present between the respondent's testimony on the
one hand and the sworn statement to USCIS and the letter from the respondent's employer on the
other, the Court finds that the respondent is not a credible witness and therefore enters an adverse
credibility finding against him.

B. Eligibility for Adjustment of Status under Section 245(a) of the Act

Section 245(a) of the Act provides for the adjustment of status of an alien who was
inspected and admitted or paroled into the United States, on a discretionary basis, if: (1) the alien
makes an application for adjustment; (2) an immigrant visa is immediately available to the alien
at the time his or her application is filed; and (3) the alien is eligible to receive an immigrant visa
and is admissible for permanent residence. INA§ 245(a). If the alien has not been "inspected and
admitted or paroled into the United States," the alien is not eligible for adjustment of status under
245(a) unless he or she qualifies for the special provisions under the Violence Against Women
Act ("VAWA"). Id.

The NTA does not charge the respondent with inadmissibility pursuant to section
212(a)(9)(C)(i)(I) of the Act as an alien who has been unlawfully present in the United States for
an aggregate period of more than one year, and who enters or attempts to reenter the United
States without being admitted. Ex. 1. However, "due process does not require inclusion of
charges in the NTA that are not grounds for removal but are grounds for denial of relief from
removal." Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). Thus, it is

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appropriate for the Court to assess all potential grounds of inadmissibility as they pertain to the
respondent's application for adjustment of status, and to assess whether the respondent is eligible
for any waivers to any such grounds of inadmissibility. See id.

The Court has entered an adverse credibility finding against the respondent, but it
continues to take into account other evidence presented. This includes the sworn statement from

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USCIS and the letter form the respondent's Mexican employer. As the letter from the
respondent's Mexican employer is more detailed and lists fewer trips to the United States than
generalized statement of"every year from 1996 through 2010" present in the respondent's sworn
statement indicates, the Court finds that the letter from the respondent's employer provides the
best evidence of when the respondent was present in the United States between 1996 and 2008.

. As listed in the letter from the respondent's employer, the respondent spent six, three-
month periods in the United States after entering without inspection. These periods occurred in
the years 1996, 1997, 1998, 2000, 2003, and 2006. As a result, after the respondent had entered
unlawfully for five, three-month periods, he had accumulated 15 months of unlawful presence; a
period greater than one year. Therefore, when the respondent reentered the United States without
inspection in 2006, he became subject to inadmissibility pursuant to section 212(a)(9)(C)(i)(I) of
the Act.

An individual who falls under section 212(a)(9)(C)(i)(I) is permanentl � inadmissible,
unless a waiver is available. Matter of Ton-es-Garcia, 23 I&N Dec. 866, 873 (BIA 2006); Matter
of Briones, 24 l&N Dec. 355, 367 (BIA 2007). The respondent is inadmissible under section
212(a)(9)(C)(i)(I) of the Act and has not established nor argued that he falls within the exception
to inadmissibility set forth in section 212(a)(9)(C)(ii) of the Act (exception for aliens seeking
admission more than ten years after last departure who obtained permission to apply for
readmission prior to reentry), nor is any waiver applicable in this case, see 212(a)(9)(C)(iii)
(waiver for VAWA self-petitioner).

As the respondent is inadmissible to the United States, the Court finds that he is ineligible
for adjustment of status pursuant to section 245(a)(2) of the Act, and accordingly denies his
application for adjustment of status under section 245(a) of the Act.

C. Administrative Closure

At the conclusion of the individual hearing on August 30, 2016, the respondent requested
administrative closure as an alternative to removal. OHS also indicated at the end of proceedings
that it would not oppose administrative closure of proceedings. However, a major purpose of
administrative closure is judicial economy. Administrative closure allows a Court to maintain
control of a case while removing it from its docket in order to allow other cases to be heard in its
place. Often administrative closure will be granted when the respondent has prospective relief
available outside of Court, or if the respondent is not an enforcement priority for OHS. However,
once all proceedings have been completed for a case, there is no there judicial economy to be
achieved by administrative closure; the hearing time has already been utilized and no other
hearing can be substituted in its place.

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In the present case, neither party moved the Court to administratively close proceedings
until five years after the case came before the Court and after all master calendar and individual
hearings had been completed. As there are no further hearings necessary in this case and the
Court is ready to issue a decision on the matter, the respondent's motion to administratively close
proceedings is denied.

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D. Voluntary Departure

Section 240B of the Act provides that, at the conclusion of removal proceedings, a court
may permit an alien to voluntarily depart the United States, at the alien's own expense, if the
alien: ( l) has been physically present in the United States for a period of at least one year
immediately preceding service of the notice to appear; (2) is and has been a person of good
moral character for at least five years; (3) is not deportable under § 237(a)(2)(A)(iii) (as an
aggravated felon) or 237(a)(4) (on security or related grounds); and (4) has established by clear
and convincing evidence that he or she has the means to depart the United States and intends to
do so. Under 8 C.F.R. § 1240.26(c)(2), "clear and convincing evidence of the means to depart
shall include in all cases presentation by the alien of a passport or other travel documentation
sufficient to assure lawful entry into the country to which the alien is departing." An alien
permitted to depart voluntarily must post a voluntary departure bond "in an amount necessary to
ensure that the alien will depart." INA§ 240B(b)(3).

The court finds that the respondent is eligible for voluntary departure under section 240B
of the Act, and concludes that he merits voluntary departure as a matter of discretion. The
respondent must file a $500 bond with DHS's ICE Field Office Director within five (5) business
days from the date of this order, and must depart the United States within sixty (60) days from
the date of this order.

NOTICE: The respondent's failure to post the required voluntary departure bond within the time
required does not terminate the respondent's obligation to depart within the period allowed, nor
does it exempt the respondent from the consequences of failing to depart voluntarily during the
period allowed. 8 C.F.R. § 1240.26(c)(4). If the respondent fails to depart the United States in
accordance with these conditions, the respondent will be subject to a civil penalty of $3,000 and
shall be ineligible, for a period of ten (10) years, to receive any further relief under sections
240A, 240B, 245, 248, and 249 of the Act. See INA § 240B(d); 8 C.F.R. § 1240.26(j). The
respondent may choose to decline the Court's grant of voluntary departure if the respondent is
unwilling to accept the amount of the bond or the other conditions. 8 C.F.R. § 1240.26(c)(3).

WARNING: Should the respondent choose to file an appeal of this Court's order with the Board
of Immigration Appeals, the respondent must, within thirty (30) days of filing an appeal with the
Board, submit sufficient proof of having posted the required voluntary departure bond. 8 C.F.R.
§ 1240.26(c)(3)(i). If the respondent does not provide timely proof to the Board that the required
voluntary departure bond has been posted with DHS, the Board will not reinstate the period of
voluntary departure in its final order. Id.

WARNING: If the respondent files with this Court a post-decision motion to reopen or

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;U03-097-416

reconsider during the period allowed for voluntary departure, the grant of voluntary departure
will be automatically terminated, and the alternate order ofremoval will take effect immediately.
8 C.F.R. § 1240.26(b)(3)(iii). The penalties for failure to depart voluntarily under section
2408(d) ofthe Act will not apply ifthe respondent has filed a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure. Id.

Immigrant & Refugee Appellate Center, LLC | www.irac.net
IV. CONCLUSION

The Court finds that the respondent is not eligible for adjustment of status under section
245(a) of the Act because he is inadmissible pursuant to section 212(a)(9)(C)(i)(I) of the Act.
The Court further finds that the respondent is eligible for voluntary departure under section 2408
ofthe Act, and concludes that he merits voluntary departure as a matter ofdiscretion.

Accordingly, the following orders shall be entered:

ORDER: IT IS ORDERED THAT the respondent's application for adjustment of
status pursuant to section 245(a) ofthe Act is DENIED.

IT IS FURTHER ORDERED THAT the respondent's Motion to
Administratively Close Proceedings is DENIED.

IT IS FINALLY ORDERED THAT the respondent be granted the
privilege to voluntarily depart the United States within sixty (60) days
from the date of this order. The respondent is required to file a $500 bond
with the Department of Homeland Security within five (5) business days
from the date of this order. Should the respondent fail to leave as and
when ordered, this order shall automatically become an order of removal
from the United States to Mexico upon the charge contained in the NTA.
Furthermore, the respondent will be subject to a civil penalty of $3,000,
and shall be ineligible, for a period often (10) years, to receive any further
reliefunder sections 240A, 2408, 245, 248, and 249 ofthe Act.

SEP 19 2016

Date LaMonte S. Freerks
United States Immigration Judge

CERTIFICATE OF SERVICE
SERVICE BY: Mai (M)
TO: �HS []A"
DATE: By:
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SEP 1 9 2016
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