In re Sotelo-Sotelo, Interim Decision Number 3460
| Decision Date | 25 October 2001 |
| Docket Number | Interim Decision Number 3460,File A90 288 961. |
| Parties | In re Javier SOTELO-Sotelo, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated December 15, 2000, an Immigration Judge denied the respondent's application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V 1999), and ordered him removed from the United States. The respondent filed a timely appeal, which will be dismissed.
The respondent is a native and citizen of Mexico who adjusted his status to that of a lawful permanent resident on December 1, 1990. On July 24, 2000, he was convicted, in the United States District Court for the District of Idaho, of the following offenses: possession and passing fraudulent resident alien cards, in violation of 18 U.S.C. § 1546 (1994 & Supp. V 1999); failure to provide migrant workers with terms and conditions of employment, in violation of 29 U.S.C. § 1821 (1994 & Supp. V 1999) and 29 U.S.C. § 1851 (1994); and illegal entry or aiding and abetting illegal entry, in violation of 8 U.S.C. § 1325 (1994 & Supp. V 1999) and 18 U.S.C. § 2 (1994). The respondent was sentenced to 8 months of imprisonment for each of the first two offenses, and to 6 months of imprisonment for third offense, with all sentences to run concurrently.
Evidence contained in the record indicates that between January and August 1999, the respondent smuggled aliens into the United States for a fee of approximately $1,500 per person. In addition, he charged each individual approximately $80 per month for rent and $35 per week for transportation to and from work. He sold fraudulent alien registration and Social Security cards to the aliens for approximately $100 apiece. Moreover, the respondent was paid $400 per person for transporting aliens from Arizona to Idaho.
The respondent testified that he began assisting undocumented aliens in 1998 and continued into 1999, and that he made between $10,000 and $12,000 from his criminal activities. One alien who was involved in the smuggling scheme reported that when he and 4 others arrived, there were already 13 aliens living in a house owned by the respondent, most of whom were sleeping on the floor. At least one of the aliens who was assisted indicated that he was familiar with the respondent's name, but he was unable to identify him. Other aliens were able to identify the respondent.
In proceedings before the Immigration Judge, the respondent conceded removability as charged and applied for cancellation of removal under section 240A(a) of the Act. The Immigration Judge denied the respondent's application for relief, and this appeal followed.
On appeal, the respondent argues that the evidence he has presented establishes that he is worthy of a discretionary grant of relief and that the Immigration Judge erred in applying a heightened standard requiring "outstanding equities" to his application for cancellation of removal. He argues further that because the Immigration and Naturalization Service did not appeal the Immigration Judge's decision, and the Immigration Judge decided not to consider the murder charge pending against the respondent in Mexico in assessing his eligibility for cancellation of removal, the Service waived its right to seek appellate consideration of the pending criminal charge.
Section 240A(a) of the Act provides as follows:
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
The statutory language clearly indicates that it is within the discretion of the Attorney General to grant cancellation of removal to an alien who meets these three requirements. The respondent bears the burden of demonstrating that relief is warranted in the exercise of discretion.
The parties acknowledge the applicability of Matter of C---- V---- T----, Interim Decision 3342 (BIA 1998), where we held that the general standards that were developed in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), for the exercise of discretion under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), are applicable to section 240A(a) of the Act. We recognize, as we did in Matter of Marin, that, in adjudicating an application for cancellation of removal, we are Id. at 585; see also Matter of C---- V---- T----, supra, at 6. However, the "equities that an applicant . . . must bring forward to establish that favorable discretionary action is warranted 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 of Marin, supra, at 585.
In any balancing test, various factors, whether positive or negative, are accorded more weight than others according to the specific facts of the individual case. More serious misconduct necessarily weighs more heavily against an exercise of discretion than does less serious misconduct. Therefore, an alien must present "additional offsetting favorable evidence" to counterbalance an adverse factor such as serious criminal activity. Matter of Marin, supra, at 585.
In this case, as required by Matter of C---- V---- T----, the Immigration Judge properly considered the factors discussed in Matter of Marin in adjudicating the respondent's application for cancellation of removal. We note, however, that the Immigration Judge also referred to the respondent's need to demonstrate "outstanding equities." In Matter of C---- V---- T----, we questioned whether this requirement had any continuing viability in view of the expanded definition of an "aggravated felony" set forth at section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999). Matter of C---- V---- T----, supra, at 7 n.4. We observed that in each of the precedent decisions where we required a showing of "unusual or outstanding equities," the alien would now be considered ineligible for relief because of a conviction for an aggravated felony, without any need to reach the issue of discretion. See, e.g., Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995); Matter of Burbano, 20 I&N Dec. 872 (BIA 1994); Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191, 195-96 (BIA 1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); Matter of Marin, supra.
We are now presented with a case in which a respondent has criminal convictions for offenses that were determined to be serious by the Immigration Judge, but that do not fall within the definition of an "aggravated felony." To the extent that the Immigration Judge's reference to a requirement of "unusual or outstanding equities" may have suggested a separate test, we clarify that no separate threshold standard exists.
In Matter of Edwards, supra, we clarified that our decision in Matter of Buscemi, supra, did not require an alien to satisfy a threshold test of showing "unusual or outstanding equities" before we would apply a balancing test to consider whether a favorable exercise of discretion is warranted. Indeed, we specifically stated that we find the reference to a threshold test in Matter of Buscemi to be "misleading, as it might be read to imply that a full examination...
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