Gustavo Soto Enriquez, A087 274 650 (bia Aug. 5, 2015)

Transcript

U.S. Department of Justice Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041 DHS/ICE Office of Chief Counsel - PHO P.O.Box 25158 Phoenix, AZ 85002 Name: SOTO-ENRIQUEZ, GUSTAVO A 087-274-650 Date of this notice: 8/5/2015 Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely, DOYlnL- ca.;vu Donna Carr Chief Clerk Enclosure Panel Members: Pauley, Roger Greer, Anne J. Cole, Patricia A. Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished/index/ Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015) QR WWW 4 .u...::3..4.a&d.J&J.. 44Ztk. Q .C&L Immigrant & Refugee Appellate Center, LLC | www.irac.net Antonetti, Alina Alina Antonetti, Atttorney at Law 817 Almeria Avenue REAR APT Coral Gables, FL 33134 U.S. Department of Justice Executive Office for Immigration Review Decision of the Board of Immigration Appeals Falls Church, Virginia 20530 File: A087 274 650 - Phoenix, AZ Date: 5 2015 AUG In re: GUSTAVO SOTO ENRIQUEZ APPEAL ON BEHALF OF RESPONDENT: Alina Antonetti, Esquire CHARGE: Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] Present without being admitted or paroled (withdrawn) Lodged: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. § 1227(a)(l){B)] In the United States in violation of law APPLICATION: Adjustment of Status; waiver of inadmissibility The respondent, a native and citizen of Mexico, appeals the hnmigration Judge's May 9, 2014, decision, finding him removable, denying his application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), and granting voluntary departure. The Department of Homeland Security has not responded. The respondent's appeal will be sustained, and the record will be remanded for updated background and security checks. The Board reviews findings of fact under the "clearly erroneous" standard. 8 C.F.R. §1003.l(d)(J)(i); Matter of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F .R. § 1003.1(d)(3)(ii). Because the application was filed after May 11, 2005, it is subject to the provisions of the REAL ID Act of 2005. The respondent concedes that he is removable by virtue of his unlawful presence in the United States (1.J. at 2; Tr. at 20). The respondent requested the relief of adjustment of status through the approved Petition for Alien Relative (Form 1-130) filed on his behalf by his United States citizen spouse. Immigrant & Refugee Appellate Center, LLC | www.irac.net IN REMOVAL PROCEEDINGS In February 2003, the respondent was convicted, pursuant to a guilty plea, for a 1991 offense of possession of narcotic drugs (Exh. 2, Tab D). For this offense, the respondent was sentenced to 2 years' probation, restitution, fines and fees (id.). In September 2006, the Superior Court of Arizona, Maricopa County, set aside the respondent's 2003 judgment of guilt pursuant to ARIZONA REVISED STATUTES ANNOTATED § 13-907 (Exh. 3). Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015) .4.% mw L&.? A087 274 650 Upon our de novo review, we disagree with the Immigration Judge's denial of adjustment of status as a matter of discretion. Before adjustment of status may be granted, an applicant bears the burden of demonstrating that he merits relief as a matter of discretion. See Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970); Matter of Blas, 15 l&N Dec. 626 (BIA 1974; A.G. 1976). The "extraordinary discretionary relief' of adjustment "can only be granted in meritorious cases." Id. at 630. Generally, the existence of favorable factors such as family ties, hardship, length of residence in the Unites States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. Matter of Arai, supra, at 496. However, where adverse factors are present, it may be necessary for the alien to present evidence of unusual or even outstanding equities to outweigh the negative factors. Id. The Immigration Judge considered that the respondent's favorable factors including his residence in the United States since 1988 and his family ties, including his United States citizen wife and child (I.J. at 7-8). The Immigration Judge also considered as a favorable factor the respondent's support of his wife while she completes pharmacy school (I.J. at 8). The Immigration Judge based his denial of adjustment as a matter of discretion solely on his conclusion that the respondent lacked credibility because his testimony conflicted with a 2003 pre-sentence investigation regarding his 1991 offense prepared by a probation officer for the state criminal court indicating that in late 1991 and early 1992 he sold cocaine to an undercover police officer (1.J. at 7-8; Tr. at 39, 45-50; Exh. 2, Tab E;). "While inquiry may be had into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted, it is impermissible to go behind a record of conviction to reassess an alien's ultimate guilt or innocence." Matter of Roberts, 20 I&N Dec. 294, 301 (BIA 1991). Just as we will not go behind a record of conviction to determine the guilt or innocence of an alien, so we are hesitant to give substantial weight to a pre-sentence investigation, prepared more than 10 years after the event, absent a conviction for the crime alleged or corroborating evidence of the allegation contained therein. See Matter ofArreguin, 21 l&N Dec. 38, 42 (BIA 1995) (declining to give substantial weight to an arrest report, in the absence of a conviction or corroborating evidence, in considering an exercise of discretion). Here, the applicant conceded that he had committed a crime and made restitution almost 25 years ago. He stated that, at the time, he was unable to speak English and, therefore, was unable to communicate with the police officer (Tr. at 41). Moreover, even assuming he sold cocaine as asserted in the presentence report, his testimony is undisputed that he has had no adverse contact 2 Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015) . __&&f....m.IAt .. &..M Qfo Immigrant & Refugee Appellate Center, LLC | www.irac.net The Immigration Judge determined that the respondent's 1991 conviction fell within the Federal First Offender Act (FFOA), protecting the respondent against the adverse immigration consequences of a one-time simple drug possession. See Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (holding that federal drug convictions expunged under the FFOA, 18 U.S.C. § 3607, cannot be used for immigration purposes and no rational basis exists for denying relief to "identically situated aliens who qualify for similar treatment under state expungement laws"), overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (holding only applies prospectively). A087 274 650 with law enforcement,' to include a traffic ticket, since that time (Tr. at 50, 53). 1 Under these circumstances, we conclude that the respondent merits adjustment of status in discretion, and we will remand the record for the required background and security updates. ORDER: The respondent's appeal is sustained. FOR THE BOARD I '< We observe that the DHS did not oppose a grant of relief (Tr. at 55). 3 Cite as: Gustavo Soto Enriquez, A087 274 650 (BIA Aug. 5, 2015) Immigrant & Refugee Appellate Center, LLC | www.irac.net FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l (d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the DHS the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § I 003 .47(h). UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 200 EAST MITCHELL DRIVE, SUITE 200 PHOENIX, ARIZONA 85012 SOTO-ENRIQUEZ, Gustavo Respondent IN REMOVAL PROCEEDINGS ) ) ) ) ) ) FILE NO.: A087-274-650 DATE: "1A1 .. 9 tflf4 CHARGE: Section 237(a)(l)(B) of the Immigration and Nationality Act, in that after admission as a nonimmigrant under IOI(a)(IS) 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. APPLICATION: Adjustment of Status under section 245(a) of the Act Voluntary Departure under section 240B(b) of the Act On Behalf of the Respondent: Emilia C. Banuelos, Esq. Banuelos Law Offices, Inc. 6816 North 27th Avenue Phoenix, Arizona 85017 On Behalf of the Government: Cara 0. Knapp Assistant Chief Counsel Department of Homeland Security 2035 North Central Avenue Phoenix, Arizona 85004 DECISION AND ORDER OF THE IMMIGRATION COURT I. PROCEDURAL HISTORY On January 5, 2009, the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA") against the respondent, charging him as removable pursuant to section 2 12(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "the Act"), as amended, as an alien present in the United States without being admitted or paroled, or who has arrived in the United States at any time or place other than designated by the Attorney General. [Ex. l.] 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) entered the United States at or near El Paso, Texas, on or about August 27, 1988; and (4) was not then admitted or paroled after inspection by an Immigration Officer. (Id] Immigrant & Refugee Appellate Center, LLC | www.irac.net IN THE MATTER OF At master calendar proceedings held on July 22, 2009, the respondent, through counsel, admitted allegations (1) through (3) in the NTA, denied allegation (4), and denied the charge of £& .WWW. U4 AWm2. 4K .: J.P.. SOTO-ENRIQUEZ. A087-274-650 On March 24, 2010, the respondent, through counsel, indicated that he wished to schedule an individual hearing to demonstrate the respondent's eligibility for cancellation of removal, as the respondent was still having difficulty locating his 1-94. At this hearing, DHS also indicated that the respondent had a criminal history that could affect his eligibility for relief. DHS submitted the respondent's criminal records on June 9, 2010. [Ex. 2.] The respondent never submitted an application for cancellation of removal. Instead, at the individual hearing on November 4, 2013, the respondent, through counsel, submitted a Form 1485, Application to Register Permanent Residence or Adjust Status, which included evidence of a legal entry into the United States on October 1, I 988. [Ex. 5.] Based on the evidence of a legal entry, DHS submitted a Form I-261, Additional Charges of Inadmissibility/Deportability, in lieu of the NTA. [Ex. IA.] In the Form 1-261, DHS lodged an amended charge against the respondent, charging him as removable pursuant to section 237(a)(l )(B) of 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 the Act or any other law of the United States. [Id] In support of this charge, DHS alleged that the respondent: (I) was admitted to the United States at an unknown place on or about August 27, 1988, as a border crosser or nonimmigrant visitor at a Mexican border port of entry for a temporary period not to exceed seventy-two hours to visit in the area within twenty-five miles of the United States border with Mexico; (2) was encountered on or about December 16, 2008, at Phoenix, Arizona, a distance more than twenty-five miles from the United States border with Mexico; and (3) has not received the permission of an immigration officer to proceed beyond that twenty-five mile limit or seventy-two-hour period. The respondent admitted these allegations and conceded the charge pursuant to 237(a)(l)(B) of the Act. The respondent testified in support of his applications for relief at an individual hearing held on November 4, 2013, before this Court. A number of documents relating to the respondent's case have been entered into the record as follows: the NTA, issued on January 5, 2009 [Ex. 1]; a Form I-261, Additional Charges of Inadmissibility/Deportability, submitted on November 4, 2013 [Ex. I A] ; DHS's Submission of Evidence, submitted on June 9, 2010 (Ex. 2, I The respondent testified through an interpreter in the Spanish language for the majority of his testimony. However, the respondent chose to finish his testimony in the English language, as he also speaks English fluently and was having difficulty waiting for the interpreter to complete her interpretations before he could respond. 2 Immigrant & Refugee Appellate Center, LLC | www.irac.net removability pursuant to section 212(a)( 6)(A)(i) of the Act. The respondent, through counsel, designated Mexico as the country of removal. The respondent, through counsel, indicated that he legally entered the United States in 1988 with a Form I-94, Arrival/Departure Record, but the respondent was having difficulty locating the document. The respondent, through counsel, also indicated that he would be seeking the relief of adjustment of status under section 245(a) of the Act upon obtaining proof of legal entry. Alternatively, the respondent, through counsel, indicated that he would be seeking relief in the form of cancellation of removal or voluntary departure. The Court reset proceedings to allow the respondent time to locate his I-94. SOTO-ENRIQUEZ· AU87-274-650 II. STATEMENT OF THE LAW 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, Pub.L. No. 1 09- 1 3, 1 1 9 Stat. 231 ("REAL ID Act"), this credibility determination is governed by the REAL ID Act provisions regarding credibility. 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). Relevant factors as to a witness's demeanor include his or her expressions, the way the witness sits or stands, nervousness, coloration, and modulation or pace of speech. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003). In addition, the following factors may support an adverse credibility finding: an applicant's inability to provide sufficiently detailed testimony, Unuakhaulu v. Gonzales, 416 F.3d 931, 938 (9th Cir. 2005) (holding that the court properly considered the applicant' s "'meager and nonspecific "' testimony); evasive testimony, Wang v. INS, 352 F.3d 1250, 1256 (9th Cir. 2003); and testimony that is implausible, Don v. Gonzales, 416 F.3d 738, 743 (9th Cir. 2007). Under the REAL ID Act, even minor inconsistencies can support an adverse credibility 3 Immigrant & Refugee Appellate Center, LLC | www.irac.net Tabs A-E]; a Judgment of Guilt Set Aside, submitted on July 7, 201 0 [Ex. 3]; the respondent's supporting documents, submitted on July 5, 2011 [Ex. 4]; and a Form 1-485, Application to Register Permanent Residence or Adjust Status, with supporting documents and a Form I-601, Application for Waiver of Grounds of Inadmissibility, submitted on October 29, 2013 [Ex. 5, Tabs A-E]. � /' '( SOTO-ENRIQUEZ · A087-274-650 The applicant's testimony alone may be sufficient to sustain his or her burden of proof without corroboration "if it is demonstrably credible, persuasive, and probative of facts sufficient" to support the applicant's claim. Matter ofJ- Y-C-, 24 I&N Dec. 260, 263 (BIA 2007). If the applicant's testimony is found to be credible, the Court will weigh the testimony with other evidence in the record. INA § 240(c)(4){B). However, if the Court determines that corroborative evidence should be produced, it "must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." Id ; see also Singh v. Holder, 649 F.3d 1161, 1173 (9th Cir. 2011) (noting that the failure to produce readily available evidence may support an adverse credibility determination under the REAL ID Act credibility language, superseding previous Ninth Circuit case law); Unuakhaulu, 416 F.3d at 938 (holding that an applicant may be found not credible "where the IJ has reason to question the applicant's credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure") (internal quotations omitted). Thus, an applicant for relief should provide evidentiary support for "material facts which are central to his or her claim and easily subject to verification." Matter of J- Y-C-, 24 I&N Dec. at 263 (quoting Matter ofS-M-J-, 21 I&N Dec. 722, 725-26 (BIA 1997)). The failure to produce such reasonably available corroborating evidence can lead to a finding that the applicant has failed to meet his or her burden of proof. Id B. 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 ("VA WA"). Id In determining whether a favorable exercise of discretion is warranted in granting adjustment of status, courts will look to a number of equitable factors. Such factors "include, but are not limited to, the existence of family ties in the United States; the length of the respondent's residence in the United States; the hardship of traveling abroad; and the respondent's immigration history, including any preconceived intent to immigrate at the time of entering as a nonimmigrant." Matter of Hashmi, 24 I&N Dec. 785, 793 (BIA 2009) (internal citations omitted). Additionally, a criminal history-or lack thereof.-is relevant to the exercise of 4 Immigrant & Refugee Appellate Center, LLC | www.irac.net finding. Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (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). SOTO-ENRIQUEZ · A:087-274-650. C. 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: (I) 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. § 1 240.26(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 pennitted to depart voluntarily must post a voluntary departure bond "in an amount necessary to ensure that the alien will depart." INA § 240B(b)(3). Ill. ANALVSIS A. Credibility The respondent filed his adjustment of status application on November 4, 20 1 3; 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 1 1, 2005 date of enactment). Under the REAL ID Act credibility standard, the Court finds that the respondent has not provided credible testimony. The respondent provided inconsistent testimony regarding his participation in the sale of drugs. During direct examination, the respondent repeatedly stated that he never sold drugs and, more specifically, that he never sold drugs to a police officer. The respondent also initially claimed that only his friend Jose Catano-Beltran ("Beltran") sold drugs. However, during cross-examination, the respondent admitted that he acted as the middle man between Beltran and an undercover police officer who was acting as a buyer. Although the respondent was initially evasive when questioned regarding the events discussed in his Presentence Investigation, he ultimately admitted that he had, in fact, sold cocaine to an undercover officer on November 27, 1 99 1 , December 1 3, 1991, and January 7, 1 992. Moreover, the Court finds it implausible that the respondent never received any money for helping Beltran sell drugs, as he claims. Furthermore, such claims are directly contradicted by the record. The respondent testified that he never benefited nor expected to benefit monetarily from helping Beltran; rather, the respondent claims that he only acted as a middle man during 5 Immigrant & Refugee Appellate Center, LLC | www.irac.net discretion. Id Generally, without the presence of relevant adverse factors, discretion will ordinarily favor granting adjustment of status. Matter ofMendez-Moralez, 2 1 I&N Dec. 296, 300 (BIA 1 996). SOTO-ENRIQUEZ . A087-274-650' The Court finds that the respondent's testimony lacked the "requisite ring of truth" to it due to the inconsistent and implausible testimony discussed above. See Kaur v. Gonzales, 418 F.3d 1061, 1 067 (9th Cir. 2005) (internal quotations omitted). Accordingly, the Court finds that the respondent has not provided credible testimony and, therefore, enters an adverse credibility finding. B. Adjustment of Status under Section 245(a) of the Act Section 245(a) of the Act provides for the adjustment of status of an respondent inspected and admitted or paroled into the United States if the respondent: (1) has made an application for adjustment; (2) an immigrant visa is immediately available to the respondent; (3) the respondent has demonstrated eligibility to receive that visa and admissibility for permanent residence; and (4) the respondent warrants a favorable exercise of discretion. 1. Statutory Requirements The respondent has made an application for adjustment of status, and an immigrant visa is immediately available to him as the spouse of a United States citizen. [Ex. 5, Tabs A-B.] The respondent has also provided proof of a legal entry in 1 988. [Ex. 5, Tab C.] Although the respondent plead guilty to Possession of Narcotic Drugs in 2003 [Ex. 2], his judgment of guilt was set aside on September 22, 2006 [Ex. 3]. Therefore, the Federal First Offender Act applies, protecting the respondent against adverse immigration consequences 6 . & ., ..w. .&.. ···' ;. az.&a cw. Immigrant & Refugee Appellate Center, LLC | www.irac.net Beltran's drug transactions because he liked Beltran and wanted to help him out. The respondent further testified that he never told anyone that the reason he was helping Beltran was to earn extra income because he was working at Panda Express, a fast-food chain, at that time and did not need the extra money. However, the Presentence Investigation contradicts the respondent's testimony. [See Ex. 2, Tab E.] The Presentence Investigation states that upon questioning, the respondent told a police officer that he was going to receive $100 from one of the drug transactions and that he was helping Beltran sell the drugs to ''make extra money." [Id] Further, the respondent later testified that he was not earning much money at Panda Express, which is why he could not afford to pay an attorney to continue working on his criminal case in 1993. The Court finds the information contained in the Presentence Investigation to be more credible than the respondent's assertion that as a twenty-three-year-old man with a low-paying job, he expected nothing in return for helping Beltran sell drugs, other than Beltran's friendship. See Chebchoub v. INS, 257 F.3d 1038, 1044 (9th Cir. 2001 ) (holding that testimony that is "implausible in light of background evidence" can support an adverse credibility finding), abrogated by statute on other grounds as stated in Shrestha v. Holder, 590 F.3d 1034, 1046 (9th Cir. 2010); see also Jibril v. Gonzales, 423 F.3d 1 129, 1 135 (9th Cir. 2005) ("Although 'speculation and conjecture' alone cannot sustain an adverse credibility finding, an IJ must be allowed to exercise common sense in rejecting a petitioner's testimony even if the IJ cannot point to specific, contrary evidence in the record to refute it."). SOTO-ENRIQUEZ · A087-274-650 Thus, the respondent is statutorily eligible for adjustment of status under section 245(a) of the Act. The only remaining issue is whether he warrants a favorable exercise of discretion. 2. Discretion Adjustment of status under section 245(a) of the Act is a discretionary form of relief. Matter ofRajah, 25 I&N Dec. 127, 134 (BIA 2009). In making discretionary determinations, the Court weighs the favorable and adverse discretionary factors to decide whether, on balance, the totality of the evidence indicates that the respondent warrants a favorable exercise of discretion. Matter ofJean, 23 l&N Dec. 373, 383 (A.G. 2002). Considerations that may support a favorable exercise of discretion by the Court include, but are not limited to, evidence of long-time residence, young age at entry, other family ties in the United States, service in the United States armed forces, evidence of value and service to the community, evidence of any genuine post-conviction rehabilitation, and a history of employment, property, or business ties within the United States. C- V-T-, 22 l&N Dec. at 11. Negative considerations include evidence of a respondent's bad character or undesirability as a permanent resident of the United States, including the nature and underlying circumstances of the grounds of inadmissibility or removability that are at issue, the presence of additional significant immigration violations, and the nature, recency, and seriousness of a respondent's criminal record. Id First, when looking at the negative factors present in the respondent's case, the Court has found that the respondent did not provide credible testimony. The respondent has not been forthright with the Court regarding his involvement in the sale of cocaine. Although the respondent's arrest occurred over twenty years ago, in 1991, the respondent continues to deny culpability for his actions. The respondent refuses to admit that he expected to receive money in exchange for helping his friend sell drugs, and he places all of the blame for his mistakes on Beltran. The positive factors in the respondent's case include the respondent' s long-time residence in this country and his familial ties to the United States, including a United States citizen wife 7 Immigrant & Refugee Appellate Center, LLC | www.irac.net because his first-time simple possession drug offense was expunged. See Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 20 11) (holding that equal protection did not require treating expunged state convictions of drug crimes the same as federal drug convictions that had been expunged under the Federal First Offender Act). Although the Ninth Circuit held in Nunez-Reyes that Federal First Offender Act protections do not extend to first-time simple drug possession offenses expunged under a state rehabilitative statute, that rule applies only prospectively. Nunez-Reyes, 646 F.3d at 690-94. Therefore, because the respondent's state expungement occurred in 2006, five years before the Nunez-Reyez holding, his Possession of Narcotic Drugs offense does not count against him as a conviction for inadmissibility purposes. SOTO-ENRIQUEZ A087-274-650 and child. The Court can also assume that the respondent provides support to his wife, whether it be emotional or financial, while she is completing pharmacy school. C. Voluntary Departure The Court finds that the respondent is eligible for the relief of voluntary departure under section 240B of the Act. He was physically present in the United States for over one year preceding service of his notice to appear on January 5, 2009, he is and has been a person of good moral character for the past five years, he is not deportable under sections 237(a)(2)(A)(iii) or 237(a)(4) of the Act, and he has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. To accept voluntary departure, the respondent must file a $750 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. § 1 240.26(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 $5000 and shall be ineligible, for a period of ten (I0) 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. § 1240.26G). 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 reconsider during the period allowed for voluntary departure, the grant of voluntary departure 8 Immigrant & Refugee Appellate Center, LLC | www.irac.net However, when weighing the favorable and adverse factors in the respondent's case, the Court cannot find that he warrants a favorable exercise of discretion. The fact that the respondent did not provide credible testimony is a large factor weighing against an exercise of discretion in his favor. Moreover, the respondent's inability to take responsibility for his past mistakes makes him undesirable as a permanent resident of the United States. Thus, the Court finds that the respondent has failed to establish that he merits relief in the Court' s discretion. Matter of C-V-T-, 22 I&N Dec. at 1 2. The Court will, therefore, deny the respondent's application for adjustment of status under section 245(a) of the Act as a matter of discretion. , SOTO-ENRIQUEZ A0�7-274-650 IV. CONCLUSION The Court finds that the respondent is not eligible for adjustment of status under section 245(a) of the Act as a matter of discretion. The Court additionally finds that the respondent is eligible for voluntary departure under section 2408 of the Act and concludes that he merits voluntary departure as a matter of discretion. Accordingly, the following orders shall be entered: ORDERS: IT IS ORDERED THAT the respondent' s application for Adjustment of Status pursuant to section 245(a) of the Act 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 $750 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 $5000, and shall be ineligible, for a period of ten ( 1 0) years, to receive any further relief under sections 240A, 2408, 245, 248, and 249 of the Act. WendellA.Hollis' U.S. Immigration Judge Date CERTIFICATE OF SERVICE __//./ SERVICE BY: Mail (JIPf []A � DHS TO: . � B� DATE: 1 1· ,:3'D---...LAJA sonal Service (P) Alien's Attorney (Court Staff) 9 Immigrant & Refugee Appellate Center, LLC | www.irac.net will be automatically terminated, and the alternate order of removal will take effect immediately. 8 C.F.R. § 1 240.26(b)(3)(iii). The penalties for failure to depart voluntarily under section 240B(d) of the Act will not apply if the respondent has filed a post-decision motion to reopen or reconsider during the period allowed for voluntary departure. Id