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

Name: VALLEJO, MIGUEL HUGO

A 096-201-718

Date of this notice: 1/6/2016

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

Dcn,u_ C

tViA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

O'Herron, Margaret M

Userteam: Docket

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Cite as: Miguel Hugo Vallejo, A096 201 718 (BIA Jan. 6, 2016)

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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A096 20 I 718 - Denver, CO

Date:

In re: MIGUEL HUGO VALLEJO

JAN - 6 2fi16

APPEAL
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Adjustment of status; voluntary departure

The respondent, a native and citizen of the Mexico, appeals the Immigration Judge's May 15,
2014, which denied his application for adjustment of status under section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. 1255(i), as well as his request for voluntary
departure. The respondent's request for a fee waiver is granted. 8 C.F.R. 1003.8(a)(3). The
record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.1(d)(3)(ii).
The Immigration Judge found the respondent ineligible for adjustment of status based on a
finding that the respondent appeared to have two drug paraphernalia convictions, relying on the
Board's holding in Matter of Martinez-Espinoza, 25 l&N Dec. 118 (BIA 2009). Subsequent to
the Immigration Judge's decision in this case, as well as the submission of the respondent's brief,
the Supreme Court of the United States abrogated the reasoning underlying Matter of
Martinez-Espinoza. See Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (holding that, to constitute a
controlled substance violation, there must be a connection between an element of the alien's
paraphernalia conviction and a drug defined in the Controlled Substance Act, 21 U.S.C. 802).
We deem it appropriate to remand this matter for further development of the record and
additional fact-finding and analysis in light of the intervening precedent.
On appeal, the respondent also has raised the question of his competency to represent himself
and has submitted evidence of a history of institutionalization (Resp. Br. and Exh.). The parties
may submit evidence regarding competency on remand, and the Immigration Judge should
assess whether there are indicia of incompetency. See Matter ofM-A-M-, 25 I&N Dec. 474, 480481 (BIA 2011) ("[w]hen there are indicia of incompetency, an Immigration Judge must take
measures to determine whether a respondent is competent to participate in proceedings").
Should the Immigration Judge find that there are indicia of incompetency, he should consider
Cite as: Miguel Hugo Vallejo, A096 201 718 (BIA Jan. 6, 2016)

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

IN REMOVAL PROCEEDINGS

A096 201 718

whether the respondent lacks competency and, if needed, ensure that there are appropriate
procedural safeguards. The Immigration Judge should provide a clear articulation of his findings
regarding competency.
Accordingly, the following order will be entered.

2
Cite as: Miguel Hugo Vallejo, A096 201 718 (BIA Jan. 6, 2016)

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

ORDER: The record is remanded to the Immigration Judge for further proceedings in
accordance with this decision.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DENVER, COLORADO

In the Matter of
)
)
)
)

MIGUEL HUGO VALLEJO

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Immigration and Nationality Act Section 212 (a)(6)(A)(i) present in the United States without being admitted or
paroled.

APPLICATIONS:

Voluntary departure; adjustment of status under Section

245(i).

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: ALLISON CAIN, Assistant Chief Counsel
Denver, Colorado

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is 35 years old. He is a native and citizen of Mexico. A Notice to
Appear was issued to him on February 2, 2009 (Exhibit 1 ). Respondent appeared in
these proceedings and represented himself. He admitted the factual allegations in the
Notice to Appear, and so the charge has been sustained.
The respondent is pro se, and has lived in the United States for a very long
period of time. The Court has considered the respondent for any relief that may be
1

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May 15, 2014

File: A096-201-718

available to him. He has not expressed fear of persecution in Mexico, however, he

does have family here in the United States and that is his concern. His father is a

children, however, are in the custody of the respondent's sister. The respondent,
nevertheless, does maintain contact with the children.
The respondent has a criminal history in this country which extends back more
than a decade. The offenses that the respondent has been convicted of would appear
to be not among the most serious of offenses described in the criminal law, however,
there appear to be several criminal offenses that the respondent has been convicted of.
The Court has asked the respondent to provide an explanation of his criminal
history in the form of a criminal history chart, as that is required in the Immigration Court
Practice Manual. The respondent has been unable to satisfy that Court's requirement,
nevertheless, the Court has tried to determine what the respondent's criminal history is
to see if there is an opportunity for him to be able to adjust status under Section 245(i).
Specifically, the Court notes that the respondent appears to have two drug
paraphernalia convictions. Under Matter of Martinez Espinoza, 25 l&N Dec. 118 (BIA
2009), drug paraphernalia convictions may render a respondent inadmissible. It is
respondent's burden to show that he is admissible to the United States. The Court finds
that he has failed to meet that burden despite being given many opportunities by the
Court to do so.
The respondent would not be eligible for a waiver under INA Section 212(h) since
it appears that there is more than a "single offense of simple possession of 30 grams or
less of marijuana." Accordingly, the Court finds that the respondent has failed to meet
his burden of proof to show that he is eligible for adjustment of status due to his
ineligibility for a waiver of inadmissibility.
A096-201-718

May 15, 2014

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United States citizen, and he has two U.S. citizen children who are very young. The

C
The respondent has expressed interest in voluntary departure. It is a difficult
decision for him. He has not agreed that he would leave the country voluntarily and

conclusion voluntary departure.

The Court has considered him for post-conclusion voluntary departure but finds
that he does not merit a favorable exercise of discretion. He has not established that he
merits such favorable exercise of discretion. The record contains many references to
his criminal history. He has not been able to clarify exactly what types of convictions
that he has incurred. It does appear clearly though that he has two controlled
substance convictions as described above.
Disturbing also to the Court is that while these proceedings were pending, and
the respondent was under the jurisdiction of the Immigration Court, he committed a theft
offense. Counsel for the Government has indicated their records show that it was a
purse snatching. The respondent has acknowledged that he was convicted in that case
of theft, although he alleges that he was not, in fact, guilty. Nevertheless, it is credited
that he was convicted of a crime involving moral turpitude. He has other convictions
which may be crimes involving moral turpitude.
Even if the Court were willing to exercise discretion favorably, the respondent
has not established that he could meet the good moral character requirements for
voluntary departure on a post-conclusion basis. The Court, however, will deny the
voluntary departure in the exercise of discretion after having balanced the positive
factors as described above with the negative factors also described above.
The following order shall issue then.
ORDER
The respondent's application for adjustment of status under Section 245(i) of the

A096-201-718

May 15, 2014

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waive appeal of the decision in this removal case; therefore, he is not eligible for pre

Immigration and Nationality Act is denied.

The respondent's application for voluntary departure is denied.

DONN L. LIVINGSTON
Immigration Judge

A096-201-718

May 15, 2014

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The respondent is ordered removed from the United States to Mexico.

CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE DONN L.

MIGUEL HUGO VALLEJO

A096-201-718
DENVER,COLORADO
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

KAY L. IMHOF (Transcriber)

FREE STATE REPORTING, lnc.-2
NOVEMBER 5, 2014
( Completion Date)

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LIVINGSTON, in the matter of: