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Department of Justice
Name: V B ,L A -430
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:
Pauley, Roger
O'Connor, Blair
Wendtland, Linda S.
Userteam: Docket
Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
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APPEAL
The respondent, a native and citizen of Mexico, appeals from the decision of an Immigration
Judge dated September 12, 2016, denying his request for a waiver of removability under section
237(a)(l)(H) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(l)(H), and ordering him
removed. The Department of Homeland Security ("OHS") has filed a brief in opposition to the
appeal. The appeal will be sustained.
The following facts are not contested. The respondent originally entered the United States
without inspection in 1986 (U at 2; Resp. Br. at l; Tr. at 15). The respondent's father filed a
Petition for Alien Relative (Form 1-130) on his behalf as the unmarried son or daughter of a lawful
permanent resident alien (IJ at 2; Tr. at 16; Exh. 7). See section 203(a)(2)(B) of the Act, 8 U.S.C.
l153(a)(2)(B). The visa petition was approved with a priority date of November 7, 1991
(IJ at 2; Exh. 7). In 1995, the respondent traveled to Mexico to marry his wife in both religious
and civil ceremonies (IJ at 4; Tr. at 18-19, 41). In 2004, the United States Citizenship and
Immigration Services ("USCIS") adjusted his status to that of a lawful permanent resident based
on the approved immigrant visa petition (IJ at 2; Exh. 5). See section 245(a) of the Act, 8 U.S.C.
1255(a). In 2005, after obtaining lawful permanent resident status, the respondent married his
wife for a second time in El Paso, Texas (IJ at 3; Resp. Br. at 2; Tr. at 20).
In2011, USCIS denied the respondent's Application for Naturalization (Form N-400) after
discovering that he had misrepresented his marital status at the time of adjustment and during the
course of his naturalization application (U at 3, 9-11; Tr. at 19-20; Exhs. 4-7). At that time, the
respondent executed a sworn statement admitting that he misrepresented his marital status in
applying for adjustment of status and naturalization, but claiming that he had relied on the advice
of a non-attorney immigration consultant (IJ at 10; Exh. 7). In 2012, the OHS initiated removal
proceedings, charging the respondent with deportability under section 237(a)( l )(A) of the Act on
the ground that he was inadmissible at the time of adjustment under section 212(a)(6)(C)(i) of the
Act, 8 U.S.C. 1182(a)(6)(C)(i), because he "failed to disclose the fact that [he was] married at
the time of [his] adjustment of status" (IJ at 1; Exh. 1). See 8 C.F.R. 205.l(a)(3)(i)(I) (providing
for the automatic revocation of an approved visa petition "(u]pon the marriage of a person accorded
status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the
Act'').
Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
430
The respondent, through counsel, admitted the factual allegations, conceded removability as
charged, and sought relief from removal in the form of a discretionary waiver pursuant to section
237(a)(l)(H) of the Act (U at 1-2). The Immigration Judge found the respondent not credible and
denied the request for a waiver, concluding that he did not merit approval as a matter of discretion
(U at 8-12).
We review questions of discretion de novo based on the Immigration Judge's findings of fact.
See 8 C.F.R. 1003.l(d)(3)(ii), (iv). The Immigration Judge's factual findings are controlling on
appeal unless they are clearly erroneous. See 8 C.F.R. 1003.l(d)(3)(i). When evaluating a
request for a favorable exercise of discretion under section 237(a)(l)(H), we weigh any adverse
factors evidencing the respondent's undesirability as a permanent resident against the social and
humane considerations presented in his behalf and decide whether, on balance, the respondent's
continued residence in the United States is in the best interests of this country. See
Matter ofTijam, 22 I&N Dec. at 412-13.
As the Immigration Judge found, the respondent has accumulated a number of favorable
considerations that weigh in favor of his request for relief. These considerations include the
respondent's residence in the United States since 1986, when he entered without inspection as a
youth to join his parents (U at 2, 11; Resp. Br. at 5). The respondent also has significant family
ties to this country, including his wife, two children, and mother, who are all United States citizens,
along with his lawful permanent resident father (U at 11; Resp. Br. at 4). Both of the respondent's
parents report health issues (U at 6-7; Tr. at 89, 94). The respondent has been employed by the
State of Texas as a corrections officer (Laundry Captain) for more than 18 years (U at 3;
Resp. Br. at 6). The respondent is also a long-standing member of his church, performs community
service by volunteering at his daughter's school, consistently pays income taxes, and is well
regarded by his friends and co-workers (U at 5, 11; Resp. Br. at 6; Exh. 2, 2A). While the
Immigration Judge observed that the respondent's wife is gainfully employed and that he could
maintain contact because the family lives close to the border of Mexico (U at 12), we have no
reason to doubt that his removal would result in emotional and economic hardship.
As noted by the Immigration Judge, the respondent's adverse factor relates solely to his fraud
and misrepresentation before USCIS (U at 12). The Immigration Judge found the respondent
misrepresented a material fact - his marital status - in his adjustment of status applicatiop. ill 2004,
and his application for naturalization in 2011, and he did not disclose the truth until USCIS
discovered his misrepresentation and confronted him (U at 11-12; Resp. Br. at 7; Exh. 7). The
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Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
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Immigration Judge further found that the misrepresentation was willful and was not just a simple
oversight as the respondent argued (IJ at 12; Resp. Br. at 7; Tr. at 19-20). The Immigration Judge
concluded that the respondent's misrepresentation had allowed him to have a full life in the
United States with gainful employment and a close family (IJ at 12).
While this matter presents a close discretionary question, even assuming that the respondent
Based on the totality of the evidence before us, we will reverse the Immigration Judge's
decision denying the respondent's application for a section 237(a)( l )(H) waiver and remand the
matter for the completion of background checks and the entry of an appropriate order.
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 Department of Homeland Security 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. 1003.47(h).
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Cite as: L-V-B-, AXXX XXX 430 (BIA July 26, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS
In the Matter of
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L V B ) IN REMOVAL PROCEEDINGS
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RESPONDENT )
Mexico. He was served with a Notice to Appear on October 10, 2012. Exhibit 1. The
Notice to Appear charges that the respondent is removable under Section 237(a)(1)(A)
of the Immigration Act, and that at the time of entry or adjustment of status, within an
Section 212(a)(6)(C)(i) of the Act. The respondent through counsel admitted the factual
allegations in the Notice to Appear and conceded that he is removable. Accordingly, I
find that there is clear and convincing evidence to establish he is removable as charged,
and so do find. Mexico was designated for the country of removal. The respondent has
STATEMENT OF FACT
Additionally, the following documents have been marked and received into evidence.
Exhibit 2 was the initial application for the request relief, with various supporting
Exhibit 28 were additional documents provided, as noted, they were submitted on the
continued hearing date, and the Court will be giving limited weight to those set of
documents based on when they were submitted and the relevancy contained therein.
Exhibit 3 was a Form 1-213 presented to the respondent. Exhibit 4 was the decision on
application filed by respondent. Exhibit 6 was the N-400 application filed by the
respondent. Exhibit 7 was the record of sworn statement from the respondent.
family members. Their testimony is briefly summarized as follows. The Court notes
that it did take into consideration the full, complete testimony of all named respondents
that appeared before this Court. Respondent testified that he is age 43, married to his
naturalized wife. He recalls coming to the United States approximately 1986, that his
parents were in the United States, his father a lawful permanent resident, his mother a
naturalized citizen. He believes his father petitioned for him back in 1991 when he was
gentleman by the name of Mr. Ramirez. Respondent does state that when he did
adjust, he was married and had two United States citizen children, presently age 19 and
Paso, Texas. According to the respondent, he is still together with his wife of many
before the Government. He states he does not recall any specific questions dealing
with marriage on the petitions he filed. He does recall applying for naturalization in
2011, which was denied. Respondent then went on to state that he thought his
marriage in Mexico did not count as to Immigration purposes. He admits now he should
have done some more research in that regard, but again, he did not believe his
marriage in Mexico would affect any Immigration petitions and Immigration benefits he
was seeking. The documents he did file indicated a marriage in 2005 to his wife, that
include Exhibit 5, the 485 adjustment of status application, wherein he was the
signature of that petition, no individual showing helping assist the respondent on that
document. That document does reflect that the respondent stated his marital status as
single when it was submitted in 2003. Again, respondent states in part that he believed
that that prior marriage in 1995 was not a good marriage for Immigration purposes. The
respondent testifies that he was a high school graduate in 2003, and obtained his
Associate degree in 2014. He was also shown the denial letter for naturalization,
Exhibit 4, and the reasons contained therein. Respondent states that he does now
the questions asked during his naturalization application process. Respondent does
in part, that if he did state that he was in fact married prior to obtaining his status
through his father, that he might have to start the process all over again. See Exhibit 7,
sworn statement.
The Court then examined the respondent. Respondent testifies that when
he came to the U.S. in 1986, he came across illegally with his parents, and that he was
the oldest sibling to enter the United States. He states he did return to Mexico to marry
his wife in Mexico. He does recall graduating from high school in 1991. He states he
did meet his wife at the high school they both attended, and that they were dating since
1992. When questioner asked do they need to marry in Mexico, respondent in part
states that a portion of his family and his wife's family resided in Mexico, so that by
having a marriage in Mexico, these family members would be able to attend. According
to the respondent, he not only obtained marriage by the church in Mexico, but also by
the Mexican courts, two separate events, and that they stayed in Mexico several weeks
for these events. When questioned, respondent believes that he had approximately 150
people attending the marriage celebration. Further in part, respondent states that, in all
likelihood, these individuals, if questioned, would think that this was in fact a valid
The Court then reviewed in part several statements from individuals that
were part of respondent's application, Exhibit 2, to include individuals that stated they
knew the respondent and his wife as his wife for 17 years, page 52, and page 48 for 16
years as husband and wife. Further, respondent was questioned as to what he believes
would have listed himself as married, even though that would have been before the
On further examination, when the case was reset for further testimony on
today's date, respondent testified that again, his mother is naturalized, his father is a
lawful permanent resident, and that he has brothers and sisters with status in the United
States. He further testifies he has been buying his home with his wife since 2003, that
he also owns several vehicles. He does have a retirement fund set aside of
approximately $40,000 dollars. Turning to volunteer work, the respondent had been
involved for about four years, up until last year, with his eldest daughter's involvement
with the high school band. He also has been recently involved with a youth soccer
team, and also has volunteered with his wife's church for various events.
summarized as follows. She states that she is married to her husband, and has been
naturalized since approximately 2007. She's known her husband since her senior year
in high school, that they dated several years before betting married, and then getting
married in Mexico. This witness states that she relied in part, and they relied in part,
with advice from this Mr. Ramirez as to how they would proceed with respondent's
Immigration petition, since they were going to get married in Mexico. This witness in
part testified that this gentleman may or may not have said that the marriage in Mexico
would not count, but then also testified that if status was changed from single to
married, that they may have to wait many, many years. This witness states that they
were basically stupid, that they chose the path that saved them time for him to obtain
status in the United States. She states after he obtained his status through his father
husband, the respondent, is removed, it would be a great hardship to her and her
children, that she is sorry for the mistake he has caused, that he is a good person, and
options from this Mr. Ramirez as to what could be done, one of those being that they
basically say nothing, let the paperwork run its normal course, or start the process all
over again. On examination by the Court, the witness does confirm both a church
wedding and court ceremony, both in Mexico, where approximately 150 people
attended. She does acknowledge working full time, earning somewhat more than her
husband. She states she filed her 2015 taxes separately from her husband in part to
Testimony was then taken from respondent's oldest daughter. She states
she is age 19, single, and born in the United States. She presently goes both to college
and works. She states that she is very close to her father and lives with her parents.
Her father does pay for her living expenses and still, to some degree, school expenses.
She believes it would be a great impact on the family, to include herself and her
65, a lawful permanent resident. He has been a lawful permanent resident since
approximately 1979: He is, in fact, the one that filed the petition for his children, to
include the respondent. He does recall a Mr. Ramirez helping out his family with
various petitions. He states he has a very good relationship with his son, the
respondent. He states he does have some health problems and presently does not
would be very difficult for him, to include financially. On examination by the Court, the
witness does not recall any specifics as far as how his son obtained his petition
support to him, and that he still does return to visit in Mexico on occasion.
naturalized. She has been in the United States since approximately 1982, and been
married to her husband for 44 years. She still does work in the healthcare field. She
states that she has a very good relationship with the respondent, and that he is an
exemplary son. She states also that she has health problems, and that it would affect
her greatly if the respondent is removed. On questioning by the Court, the witness
confirms that her husband, who is disabled, does obtain Social Security benefits of
approximately 790 per month, and further that she lives in her own home with her
husband, separate from the respondent's home. She further testifies that she does take
STATEMENT OF LAW
237(a)(1 )(H) of the Act states that the provisions of this paragraph relating to the
removal of aliens within the U.S. on the grounds that they are inadmissible at the time of
innocent, may, in the discretion of the Attorney General, be waived for any alien who is
the spouse, parent, son, or daughter of a citizen of the U.S. or of an alien lawfully
admitted to the United States for permanent residency, and was in possession of an
immigrant visa or equivalent document, or was otherwise admissible to the U.S. at the
time of such admission, except for those grounds of inadmissibility specified under
misrepresentation.
present. See Matter of Tijan, 22 l&N Dec. 408 (BIA 1998). The Court believes it has
The Court will note at the onset, first, respondent's adverse factors. The
Court will further note that these cases are certainly challenging because, oftentimes, as
is the case in the present case, that respondent's fraud happens many years before he
is brought before this Court, in large part because it is many years before Immigration is
made aware based on future or further applications are further analyzed and reviewed
That is the situation in the present case. Basically, what this respondent
wishes this Court to believe is that marriages in Mexico have no valid basis in the
United States. While some individuals might carry this misconception, clearly that is not
the law of the land. Further, the Court looks at an individual's background and rationale
for thinking such things, or using those as potential excuses in order to advance
themselves further with their Immigration process. In addition, the Court will find that
such Immigration fraud can in fact be very significant, especially if they're compounded
As the Court informed the respondent, the Court does not believe the
respondent is a credible witness in this regard. The Court believes that the respondent,
marriage in Mexico was a significant event, a significant status change in his marital
status. While the respondent several times indicated he was just following advice of a
Mr. Ramirez, the Court notes that respondent's petition filed for adjustment of status
only contains the respondent's signature, and no one helping him with this application.
Exhibit 5. That application, signed by the respondent, with follow-up questions during
an interview process, clearly indicates that the respondent stated he was single during
the process. Based on that fraud, respondent did obtain lawful permanent residence
through his father. Coincidentally, after obtaining status in 2004 by Immigration, the
respondent, the following year in 2005, married his wife again in the United States.
Henceforth, respondent used that 2005 marriage in the United States as his marriage,
at least as far as Immigration purposes are involved. The Court will note as an example
that respondent himself acknowledged, when questioned by this Court, that in all
likelihood, before his 2005 marriage to his wife in the United States, that during an
application process for his current job with the Texas Correctional Department would
have, in all likelihood, indicated he was married, since he was in fact married, married in
Next, the Court looks to the application for naturalization for the
sworn to this application in 2011 by an Immigration Officer. There are notations by that
Immigration Officer in 2011 that, as a normal, routine practice, the Government wanted
to be satisfied that the respondent was giving, in fact, actually truthful information.
marriage once, October 2005, and that he claimed as the note indicates that he was
never married prior to October 2005. That would have been an opportunity for
and then let that officer determine whether or not that would affect his naturalization
process at the time. Next, part 9 of that application, respondent did indicate children
both in 1997 and 2001, and that they were both born with his current wife, as noted on
the application when questioned by the officer. Further telling is when questioned, he
stated apparently that he was not married at the time his children were born to his wife.
Again, if the respondent was forthright and truthful, he would have brought up the issue
about the marriage in Mexico in 1995, which then permitted him and his wife to start
having children, in effect. But instead, the respondent lied to proceed with
naturalization, basically again compounding the fraud when obtaining his lawful
permanent residency status, and hoping in part, perhaps, that the Government would
not investigate further to determine whether or not the respondent was truthful in also,
now, his naturalization application. However, the Government at this time did in fact
that end, there was a sworn statement taken from respondent, Exhibit 7.
In particular, the Court notes some of the telling questions during that
interview, to include question, during the time that they assisted you in completing the
paperwork application, what was their advice to you in regards to completing your
application and your marital status, related to Mr. Roberto Ramirez. Answer, they just
told me that since my application was already put in, just to go along with whatever the
application said. They told me that if I claimed to be married, that I would have to start
the process all over again. While the respondent minimizes that response, that
in fact married, that he would in fact have to start the process all over again, and may or
of married. In effect, the Court finds these to be highly significant events, since the
respondent not only lied once, but at least twice, both for his lawful permanent
residence petition, as well as to his naturalization petition, and it was not only until
confronted later by the Government that the respondent now relates this story of
thinking he, in part as he has testified before this Court, was not sure that their marriage
The Court will note that the respondent does not have any criminal history,
that he does have a very good job working for the state government, that he is very
close to his wife, two children, and parents, all that have status in the United States.
Further, the respondent has been involved with the community in various capacities.
Once again, the Court recognizes all these variable factors in respondent's case, but
again, it begs the question that if respondent was truthful to the officers, he would not
have obtained lawful status when he did, which would not have resulted in his time for
many years to accrue these positive variable factors. Again, the Court does not believe
the Government should be faulted per se that the respondent was able to live his
basically unlawful presence in the United States because the Government did not have,
for whatever reason, the abilities or capabilities back then to question the respondent's
marriage before granting lawful status. That is why the Court believes that it is not
This is not the case where the respondent had lawful status in the United
States, committed some violation, and is seeking a waiver. Further, this is not a type of
instead, a respondent seeking a Waiver for his fraud before Immigration authorities
many years ago. Once again, the Court believes that it has made a full analysis of both
the respondent does have numerous positive factors in the United States, further that
respondent's adverse factors relate solely to his fraud and misrepresentation before
Immigration services. Again, the Court finds that to be on two separate occasions. The
Court will find, further, that this was a willful misrepresentation, and not just a simple
makes this case come down on the determination by this Court that, based on a willful
misrepresentation to take advantage of the system and then be able to continue having
a full life in the United States with gainful employment and with a close family, that this
The Court also notes, as was testified to, that while the respondent does
work and provides for his family, that his wife also works, and actually makes more
money than the respondent. That being said, while there might be some financial
hardship if the respondent is removed to both his wife and children and perhaps his
parents, that he is not the sole provider for the family. Further, if respondent is removed
to Mexico, he will still be able to have contact with his family, since the respondent
would be close to the border, where his family in the U.S. resides.
The Court will not and shall not find the respondent, therefore, as
deserving of such Waiver, and therefore the Court will deny, in its discretion, the waiver
pursuant to Section 237(a)(1)(H) of the Act. Therefore, the following order shall be
entered.
ORDER
signature
ROBERTS. HOUGH
Immigration Judge