fernando linares-isidoro, a095 729 470 (bia nov. 30, 2012)

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HOSSEINI, Soheila Esq. PO Box 3690 Missio Viejo, CA 92653

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office oft he Clerk

5107 Leesburg Pike, Suile2000 Falls Chrm:h, Virginia 2204/

DHS/ICE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014

Name: LINARES-ISIDORO, FERNANDO A 095-729-470

Date of this notice: 11/30/2012

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

Enclosure

Panel Members: Donovan, Teresa L. Pauley, Roger Greer, Anne J.

Sincerely,

OorutLC!cuvu D01maCarr Chief Clerk

TranC Userteam: Docket

Cite as: Fernando Linares-Isidoro, A095 729 470 (BIA Nov. 30, 2012)

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LINARES-ISIDORO, FERNANDO A095-729-470 62 CIVIC CENTER PLAZA SANTA ANA, CA 92701

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesbr,rg Pike, Suite 2000 Falls Ch!lrch, Virginia 21041

DHSliCE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014

Name: LINARES-ISIDORO, FERNANDO A 095-729-470

Date ofthis notice: 11/30/2012

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attomey or representative has been served with this decision pursuant to 8 C.F.R. § 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Enclosure

Panel Members: Donovan, Teresa L. Pauley, Roger Greer, Anne J.

Sincerely,

OOrutLCWVLJ Donna Carr Chief Clerk

TranC Userteam: Docket


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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: A095 729 470- Los Angeles, CA Date:

In re: FERNANDO LINARES-ISIDORO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Soheila Hosseini, Esquire

ON BEHALF OF DHS: Jean Lin Assistant Chief Counsel

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

APPLICATION: Adjustment of status

NOV 30 2012

The respondent is a native and citizen of Mexico. On June 1, 2012, the Immigration Judge granted the respondent's application for adjustment of status pursuant to section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (I.J. at II). The DHS now appeals that decision. We review the Immigration Judge's factual findings for clear error and all other issues de novo. See 8 C.F.R. § 1003.l(d)(3). The appeal will be sustained. 1

On appeal, the DHS argues that the Immigration Judge erred by granting the respondent's application for adjustment of status because, inter alia, the respondent did not merit relief as a matter of discretion. See DHS Brief at II. We agree.

1 On June 8, 2012, this Board decided Matter of Vazquez, 25 I&N Dec. 817, 818-19 (BIA 2012), and held that, pursuant to section 203(h)(l )(a) of the Immigration and Nationality Act, which was enacted as part of the CSPA, "an applicant who has aged out [may] nevertheless maintain the status of a 'child' under the Act .. [it] the applicant ... 'sought to acquire the status of an alien lawfully admitted for permanent residence within one year of ... availability' of an immigrant visa number." In lvfauer of Vazquez, supra, at 823, we also held that the respondent may satisfY the "sought to acquire" requirement by filing an application for adjustment of status with the DHS or by showing that there were "other e.xtraordinary circumstances, particularly those where the failure to timely file was due to circumstances beyond the alien's control." On June 20, 2012, relying on Mauer of Vazquez, supra, the DHS filed a motion for reconsideration of the Immigration Judge's June I, 2012, decision. The Immigration Judge denied this motion on June 25, 2012. In this decision, all references to the Immigration Judge's decision refer to the June I, 2012, decision.


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A09,5 729 470

As the Immigration Judge found, the respondent has an extensive criminal history (I.J. at 2). On July 18, 2011, the respondent was convicted of the unlawful taking of a vehicle, carrying a stolen, loaded firearm and participation in a criminal street gang (I.J. at 2, 5; Tr. at 176-84). See Waiver of Rights for Felony Guilty Plea at 1, 3; see also 2011 Abstract ofJudgment; Form 1-601 (Application for Waiver of Inadmissibility) at 3. In 2007, the respondent was convicted of vandalism (I.J. at 3; Tr. at 164-65). See Attachment to 1-485 Filing (Adjustment of Status) at 117-18. In 2009, the respondent was convicted of driving under the influence and second degree burglary (I.J. at 2, 3; Tr. at 169, 170-173). See Form 1-601 (Application for Waiver of Inadmissibility) at 3; see also Attachment to I-485 Filing (Adjustment of Status) at 119, 120.

In 2009 the respondent was arrested for attempted murder, street terrorism, gang participation and conspiracy but these charges were dropped (I.J. at 3; Tr. at 173-74 ). The Immigration Judge also found that the respondent gave false testimony to the Immigration Judge regarding his gang affiliation and that he made false statements to the law enforcement officer when he was arrested in 2011 (I.J. at 3, 12; Tr. at 179, 184).

Where such adverse factors are present, the applicant may need to offset these by a showing of unusual or even outstanding equities. See Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970). Favorable "factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion." See id. In this case, the respondent testified that he feels remorse for his crimes (I.J. at 2; Tr. at 159-60). He testified that he no longer drinks alcohol (I.J. at 2; Tr. at 158). The Immigration Judge found that the respondent has lived in the United States since he was 3-years-old and has strong family ties including his lawful permanent resident parents and sister (I.J. at 12; Tr. at 92).

Although the respondent has demonstrated substantial equities as discussed above, these equities must be balanced against adverse factors in this case, particularly concerning the nature and seriousness ofhis criminal record. We conclude that the respondent's negative factors outweigh his favorable equities and, therefore, the respondent has not shown that he merits a favorable exercise of discretion. Therefore, we will reverse the Immigration Judge's decision granting the respondent's application for adjustment of status. The respondent will be ordered removed to Mexico.' Accordingly, the following orders will be entered.

ORDER: The Department of Homeland Security's appeal is sustained.

2 Because we hold that the respondent does not merit relief as a matter of discretion, we do not address DHS's argument that the Immigration Judge erred by finding that respondent demonstrated extraordinary circumstances for the late filing of his adjustment of status application. See DHS Brief at 7-10. Nor will we address the Immigration Judge's failure to adjudicate the respondent's application for a waiver of the grounds of inadmissibility.

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A09;i 729 470

FURTHER ORDER: The Immigration Judge's grant of adjustment of status is reversed, and the respondent is ordered removed from the United States to Mexico.

\e-.-eJt-LD~ FOR THE BOARD

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r

UNITED STATES DEPARTMENT OF JUSTICE EXECVTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 300 NO LOS ANGELES ST. RM 4330

LOS ANGELES, CA 90012

SOHEILA HOSSEINI, ESQ. 23276 SOUTH POINT DRIVE, STE. 218 LAGUNA HILLS, CA 92653

IN THE MATTER OF LINARES-ISIDORO, FERNANDO

FILE A 095-729-470

UNABLE TO FORWARD - NO APDRESS PROVIDED

DATE: Jun 1, 2012

_XX_ ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR·FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), 8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

OTHER:

IMMIGRATION COURT 300 NO LOS ANGELES ST. RM 4330 LOS ANGELES, CA 90012

N.ZAVALA

COURT CLERK IMMIGRATION COURT

CC: LIN, JEAN, ESQ. 606 S. OLIVE STREET, 8th FLOOR LOS ANGELES, CA, 90014

FF

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.,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT LOS ANGELES, CALIFORNIA

FileNo.: A 095 729470

In the Matter of:

LINARES-ISIDORO, Fernando

Respondent.

) DETAINED ) ) ) IN REMOVAL PROCEEDINGS ) ) )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) -present without admission or parole

APPLICATION: Adjustment of Status under INA§ 245(a)

ON BEHALF OF RESPONDENT: Soheila Hosseini, &quire 23276 South Point Drive, Suite 218 Laguna Hills, California 92653

ON BEHALF OF THE DEPARTMENT: Sandra Shin, Assistant Chief Counsel U.S. Department of Homeland Security 300 North Los Angeles Street, Room 8108 Los Angeles, California 90012

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.ProeeduralEUstory

Fernando Linares-Isidoro (Respondent) is a native and citizen of Mexico. On July 19, 2007, the U.S. Department of Homeland Security {Department) personally served him with a Notice to Appear (NT A), alleging therein that he entered the United States at or near San Ysidro, California, on or about January 1, 1991, and was not then admitted or paroled after inspection by an immigration officer. Exh. 1. The Department accordingly charged Respondent as removable under INA§ 212(a)(6)(A)(i). Id. Jurisdiction vested and proceedings commenced when the Department filed the NTA with the Court on July 24, 2007. See 8 C.F.R. § 1003.14(a).

Respondent first appeared before the Court on December 13, 2007. On that date, he indicated, through counsel, that he would be seeking relief in the form of adjustment of status based on an approved Form 1-140 visa petition filed on his father's behalf, in which he was included as a derivative beneficiary. Proceedings were reset to October 8, 2009, to allow Respondent time to prepare his application for relief. On October 8, 2009, Respondent failed to appear for his scheduled hearing. His attorney informed the Court that he was in criminal custody, and the Court reset proceedings. On March I 0, 2010, the Court administratively closed Respondent's proceedings because Respondent was still in criminal custody.

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On October 6, 2010, the Department filed a motion to recalendar Respondent's proceediJlgs based on Respondent's release from criminal custody and transfer to immigration custody. The Court granted the Department's motion and scheduled a hearing for November 29, 2010. On November 29, 2010, Respondent, through counsel, agaiJl indicated that he was seeking relief in the form of adjustment of status. On November 30, 2010, Respondent was released from immigration custody on bond.

On January 25, 2011, Respondent, through counsel, admitted the factual allegations and conceded the charge of removability contained in the NT A. On the same date, Respondent filed a Form I-485, Application to Register Permanent Residence or Adjust Status. Proceedings were reset on several occasions to allow the parties to prepare for a merits hearing. On August 4, 2011, the Court again administratively closed Respondent's removal proceedings because Respondent was again in criminal custody. He was subsequently transferred to immigration custody and his proceedings were recalendared and transferred back to this Court.

Respondent asserts that, despite the fact that he is no longer considered a child, he is eligible to adjust his status as a derivative beneficiary on his father's Form I-140 under the Child Status Protection Act (CSPA). The Department argues that Respondent cannot benefit from the CSPA because he did not seek to acquire lawful permanent residence within one year of his visa becoming available. Alternatively, the Department argues that the Court should deny Respondent's application for adjustment of status as a matter of discretion. For the following reasons, the Court grants Respondent's application for adjustment of status.

II. Summary of Testimony

The following is a summary of the testimony provided before the Court by Respondent and his witnesses on March 29. 2012, and May 10, 2012.

A. Respondent

Respondent testified about his July 28, 2011 conviction for unlawful taking of a vehicle, carrying a stolen firearm and participation in a criminal street gang (see conviction records and arrest report). Respondent testified that he drove the stolen vehicle because he was the only occupant who was sober. He stated that he did not know there was a firearm in the car at the time. Respondent testified that he did not believe he still had a drinking problem after his 2009 conviction for driving under the influence. Respondent attributed his misconduct to boredom around the house and drinking. He asserted that he is sober now.

Respondent testified that he wanted to further his college education but could not obtain a loan for college. Respondent wanted to become a general mechanic for automobiles.

Respondent asserted that he felt remorse for his crimes, for the damage he has caused to himself and his family. If Respondent were removed to Mexico, his family would suffer, especial! y his sister.

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Respondent denied joining his friends' gang, notwithstanding the large gang-related tattoo that is on his chest and neck {see also the police report). Respondent asserted that the tattoo simply had to do with the geographical location of his neighborhood and that he affiliated with the gang. Most of Respondent's friends that grew up are members of the Forming Kaos gang, but Respondent asserted that he was not a member of the gang.

Respondent acknowledged two separate convictions for being a part of a gang. In 2007, he was around the gang and was pretty much in the wrong place at the wrong time. Regarding his vandalism conviction, Respondent asserted that he did not vandalize anything but was around others who did. The police arrested Respondent and two others because the other left. One of the other two arrestees was a gang member and had paint on his hands. The other two arrestees were minors and Respondent was not, so he "took the rap" for them.

Respondent testified that his next arrest was in 2009 for vehicular burglary and for being drunk in public. Respondent was also arrested for driving under the influence on a freeway in Los Angeles, California. Respondent has never had a drivers license. Respondent started drinking at age 16, but stopped drinking when he was incarcerated.

There was a third arrest at home in 2009 for attempted murder, street terrorism, gang participation, and conspiracy. Respondent stated that he did not know who the victim was. Respondent denied culpability and the charges were dropped.

In 2011, Respondent was arrested for being in a stolen vehicle. Respondents' three friends from the Forming Kaos gang called Respondent and invited him to go with them to meet girls at Laguna Hills Mall. Later that night, when it was time to go home, the others could not drive because they had been drinking, so Respondent drOve the car. Respondent claimed that he did not know the vehicle was stolen. He was driving it in Laguna Beach, California and stopped at a liquor store to get a something to eat. A police car pulled up behind them. Respondent and his friends were arrested from the car. At that moment, Respondent's friends told Respondent that the car he was driving was stolen. Respondent told the police his name was Fernando Perez (a pseudonym) because Respondent ''panicked." The police found a loaded firearm and marijuana in the car. Respondent claimed he that he did not know the origins of the firearm. Respondent was unable to produce a drivers license. Respondent claimed that he did not know there was marijuana in the car even though the police could smell marijuana. There were bottles and cans of alcohol in the back seat. Respondent stated that he did not have any.

B. Respondent's Father, Ramon Linares Melecio

Mr. Linares testified that he was granted lawful permanent residence on January 26, 2010, through a visa petition filed by his employer, an Italian restaurant called Gina's Pizza. Mr. Linares stated that his wife and Respondent were included as derivatives on his visa petition. When asked why Respondent was not included in his 2010 adjustment application, Mr. Linares stated that the person who helped him with the applications, a woman named Betina, 1 told him that Respondent had to "clean up" his criminal record before he could file an application.

1 Mr. Linares stated that Betina's last name was Vilsasure at the time he worked with her, but he believes that she has since changed her name, and he does not know her current last name.

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Therefore, although Mr. Linares paid Betina to file all three adjustment applications, Betina did not file Respondent's application. Mr. Linares stated that he could not say whose decision it was to withhold Respondent's application because he relied completely on Betina's advice.

Mr. Linares testified that he first hired Betina in 2000 or 2001 to assist him in gaining lawful status. He stated that he was referred to Betina through some of his friends. Betina was not an attorney, but she worked with an attorney, Timothy Meyers. However, Mr. Meyers never met with or advised Mr. Linares. Betina's office was located in a separate building from Mr. Meyers's office. Mr. Linares knew that Betina worked with Mr. Meyers because Mr. Linares paid Betina to arrange for Mr. Meyers to represent Respondent in his immigration proceedings.

l'vir. Linares believed that Betina offered good advice about waiting to file Respondent's application because he did not know what he was supposed to do. Even though he knew he had to file his own adjustment application to gain lawful permanent residence, he did not know if he needed to wait to file Respondent's application because Respondent was already twenty-one years old, he had a criminal record, and he was in ongoing immigration proceedings. Mr. Linares stated that he did not know what kind of paperwork was required to file Respondent's application. He also stated that he did not fill out his own adjustment application; rather, Betina completed and filed his and his wife's applications. Betina never informed Mr. Linares about the proper time to file Respondent's application, and Mr. Linares does not know why.

Mr. Linares stated that he has a very close and strong relationship with Respondent. Most of the time they are together at home, where Respondent gardens and helps clean. Mr. Linares stated that it is possible that at some point he and Respondent were not as close because Mr. Linares has always worked long hours. However, Mr. Linares and Respondent also used to work together, and Mr. Linares would drive them to work. Mr. Linares stated that Respondent has always been very calm and quiet and never been considered a ''problem child" at school. Mr. Linares also stated that Respondent has never gone through a depression, but he has noticed that at one time, when the family had less money, Respondent was sad and worried about helping the family financially. He would especially become sad when they would go out to eat or when he wanted to buy something and the family did not have the money for it. Mr. Linares said that this could have been around 2005, when he purchased the family home, at which time Respondent was seventeen years old. Mr. Linares stated that Respondent has always lived at home and that Mr. Linares has always paid his living expenses.

Mr. Linares testified that he and his wife, who also works, filed tax returns for 2010 and 2011. In 2010, Mr. Linares and his wife together earned $54,461. In 2011, Mr. Linares and his wife earned $53,351. However, they require additional financial assistance because they are paying for the house and have other bills. When Respondent was working, he helped the family financially. Respondent worked at Gina's Pizza with Mr. Linares before his incarceration. Mr. Linares testified that Respondent got a job at Gina's Pizza because Mr. Linares's boss had known Respondent since he was a child. Mr. Linares does not believe that Respondent got a job because Mr. Linares worked at Gina's, but he admitted that his boss knew Respondent through his own employment. Respondent also held a different job prior to working at Gina's.

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Mr. Linares testified that he is the only one at home who can drive. He stated that Respondent knows how and is able to drive, but he does not drive at the moment because he does not have a license. Respondent has convictions for driving under the influence, and he did not have a valid license at the time of those offenses.

Mr. Linares stated that he does not know for sure that Respondent ever participated in a street gang. He stated that he knows that there was "a lot of stuff going on with friends," but he does not know if Respondent actually participated in the gang. Mr. Linares stated that Respondent has two tattoos: one on his chest with a cross and the words "Only God can judge me" and one his neck with the words "West Side Costa Mesa." Mr. Linares talked to Respondent when he got his neck tattoo, and Respondent explained that "West Side Costa Mesa" is the place where he grew up and the place he had always lived. Mr. Linares told Respondent to have the tattoo removed because he does not like tattoos and is not in favor of them. Respondent promised to remove the tattoo, but he did not do so. Mr. Linares does not know why Respondent did not remove the tattoo. He stated that "things were happening'' at that time. For example, in 2007 or 2008, Respondent was accused of attempted murder, though he was not guilty. After the charges were dropped, Respondent was placed in immigration proceedings.

Mr. Linares stated that he is aware that Respondent has twice been convicted for gang involvement, once in 2007 and once in 20 II. When asked what he thinks about these convictions as well as Respondent's refusal to remove his ''West Side Costa Mesa" tattoo, Mr. Linares stated that in 2007, when Respondent was released, they were "going to do this," but then he was detained again. In 2011, he was released only for a short time and was working at Gina's Pizza. Mr. Linares stated that the "other reason" was that they were "short of funds."

When asked about Respondent's 2007 gang conviction, Mr. Linares stated that he does not know what happened. He explained that it was Respondent's day off from work, but he does not know why Respondent went out with his friends that day. Mr. Linares was told that Respondent was pulled over driving a stolen car and told the police that his name was Fernando Perez. He also was told that there was a 22 caliber hand gun in the car, which had been reported stolen. When asked if he knew that the other individuals in the car were known participants of the forming Chaos gang, Mr. Linares stated that Respondent ''normally did not go out with the same people, he went out with different friends." Mr. Linares testified that he did not raise his son to lie to the police or commit crimes.

Mr. Linares testified that ''up to a certain point'' he believes that Respondent appreciates all that Mr. Linares has done for him. He stated that Respondent has acted "wrongly and stupidly," but he is not a bad person, he just made mistakes. Mr. Linares stated that Respondent is requesting to stay in the United States despite his crimes because he knows nothing about Mexico and does not know anyone in Mexico. Mr. Linares testified that Respondent has apologized to him. When Respondent was arrested, he called Mr. Linares, asked for forgiveness, and told Mr. Linares not to help him anymore because he did not know what would happen. When asked why he continues to support Respondent, Mr. Linares stated, ''Well he and my daughter, they are like my two eyes, how am I going to let them?"

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Mr. Linares stated that he currently has no medical problems. However, he previously had problems breathing due to hard work and stress. One time, he choked and stopped breathing. Mr. Linares testified that neither he nor his wife have any criminal convictions.

C. Respondent's Mother, Susana Isidoro de Linares

Ms. Linares testified that her relationship with Respondent is good and that they have always been close. She stated that when Respondent was living at home, he would cook with her, clean, help her around the house, and help with his sister, without Ms. Linares asking him to do so. Specifically, Respondent would help his sister with her homework and prepare her dinner, especially when Ms. Linares came home late from her hotel housekeeping job. Respondent also helped the family financially. Ms. Linares testified that all four family members were very close. She stated that Respondent is a very good son, and what happened with him has hurt the family "quite a bit."

Ms. Linares stated that although Respondent was not an "outstanding student," he did well in school. He got along with the other students and did not have problems. He graduated from high school and then took classes for one semester at Orange Coast College. Ms. Linares stated that the family did not have money for him to continue in school after that semester.

When asked why, in her opinion, Respondent was hanging out with people who caused problems and why he got into trouble, Ms. Linares stated that maybe she and her husband have not given him ''the necessary time" that he needs because they are always working. Ms. Linares stated that she never noticed a change or depression in Respondent. She also stated that she does not know what kind of trouble Respondent has been in. However, she is aware that he has been in trouble for driving under the influence, burglary, and driving a stolen car with stolen firearms inside because they were called when Respondent was detained and because Respondent's criminal attorney informed them. She stated that Respondent never talked to her about these incidents. Ms. Linares stated that she was not aware that Respondent had admitted to the police that he was a gang member. She admitted that she may not "really know him" and that she may need to have "deeper conversations with him," but she stated that they "have always talked and were always together." She also stated that in between Respondent's periods of incarceration, she spoke with Respondent about going to school, working, and opportunities for a better future. She told him to behave so that he could have a better life and be a productive citizen, and she explained to him that if he did something wrong, he would have to pay the consequences.

D. Respondent's Sister, Susana Linares

Susana testified that Respondent is "not only her brother, but her best friend." They walk the dog together, and he helps her in school. Respondent helps her with homework and sometimes drives her to school. Susana stated that there was a point in her life when she stopped going to school. She stated that because of the problems going on in her life, including her brother's arrest, she no longer cared about school. She stated that while her brother was incarcerated, she found some classes difficult and stopped putting in effort. She has now made up her course work and is on-track to graduate. She plans to go to a community college after high school and then transfer to a four-year college. She stated that Respondent helps her

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parents pay the bills, and if Respondent were not around, she would not be able to go to school because she would have to help support her parents.

ill. Law and Analysis

A. Statutory Eligibility

The Court may adjust the status of an alien who entered the United States without inspection to that of a lawful permanent resident if the alien (I) makes an application for such adjustment; (2) is the beneficiary of a visa petition that was filed on or before April 30, 2001; (3) is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (4) has an immigrant visa immediately available to him at the time his application is filed. INA§§ 245(a), (i); 8 C.P.R.§ 1245.10(b). The alien bears the burden of proving that he is eligible for relief. INA§ 240(c)(4)(A)(i).

In the present matter, Respondent has applied for adjustment of status, and the parties do not dispute that he is admissible to the United States. Additionally, if Respondent is eligible for a visa as a derivative beneficiary on his father's approved Form I-140, he is the beneficiary of a visa petition filed on or before April 30, 2001, and he has an immigrant visa immediately available to him because the priority date for the Form 1-140 is current. However, Respondent is no longer considered a derivative "child" because he is over the age of twenty-one. See INA §§ 101(b)(l), 203(d). Therefore, the Court must determine whether Respondent is eligible to receive a visa as a derivative beneficiary under the CSP A.

The CSP A provides protection for child visa beneficiaries who have "aged out" due to administrative delays in the adjudication of their immigrant petitions. See CSP A, Pub. L. No. 107-208, 116 Stat. 927 (2002). The CSPA applies to a beneficiary of a visa application pending on or after August 6, 2002. CSP A § 8. The CSP A establishes a formula for determining an alien's age by subtracting the time the relevant visa petition was pending from the alien's age at the time the visa number became available. See INA § 203(h)(1 ). The alien is eligible to adjust status as a child if, under the formula, he was under twenty-one on the date on which an immigrant visa became available, but only if he "sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability." Id.

The CSPA applies to Respondent because the relevant visa application was filed in 2001 and was not approved until August 4, 2009; therefore, it was pending on and after August 6, 2002. See CSP A § 8. Additionally, under the CSP A formula, Respondent was under the age of twenty-one on the date a visa became available to him through his father's Form 1-140. The visa petition was approved on August 4, 2009, and a visa was available on that date. Respondent's biological age on August 4, 2009, was twenty-one years and six months. The Department stated that the visa petition was pending for nine years and four months. Thus, under the CSP A, Respondent was considered to be twelve years and two months old, and thus a "child," on the date a visa became available to him. See INA§ 203(h)(l). However, Respondent did not file his application for adjustment of status until January 25, 2011, more than a year after a visa number

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beeame available to him. Thus, the Court must detennine whether he otherwise sought to acquire lawful permanent resident status by August 4, 2010.

The INA does not define the phrase "sought to acquire." Neither the Board of Immigration Appeals (Board) nor the Ninth Circuit Court of Appeals (Ninth Circuit) has issued a published decision interpreting this phrase. Therefore, the Court must turn to the decisions of other circuits and unpublished decisions for guidance.

The Eleventh Circuit Court of Appeals bas held that the phrase sought to acquire "is broad enough to encompass substantial steps taken toward the filing of the relevant application during the relevant time period, but does not require that the alien actually file or submit the application." Tovar v. U.S. Att'y Gen., 646 F.3d 1300, 1305 (lith Cir. 2011). The Eleventh Circuit relied on several unpublished Board decisions in reaching this conclusion. Id. at 1304-05. In each of these decisions, the Board also detennined that "sought to acquire'' includes substantial steps taken in seeking adjustment of status which fall short of filing the application. Id. The facts of these and other unpublished Board cases provide further guidance to the Court.

In one unpublished decision, the Board looked to Congress's use of the phrase "sought to acquire" rather than terms such as "file," "submit," or "apply," which Congress used elsewhere in the INA. Jose Jesus Murillo, A099-252-007, 2010 WL 5888675 (BIA Oct. 6, 2010). The Board considered the plain meaning of the words "sought to acquire" and concluded that Congress intended that the beneficiary must only ''make an attempt to get or obtain" status rather than file an application within one year of visa availability. Id. The Board additionally noted that Congress enacted the CSP A "to 'bring families together' and to 'provide relief to children who lose out when [the Department] takes too long to process their adjustment of status applications."' Id. Further, the Board relied on the Ninth Circuit's finding that "the CSPA should 'be construed so as to provide expansive relief to children of United State citizens and permanent residents."' Id. (quotingPadash v. INS, 358 F.3d 1161,1172 (9thCir. 2004)). The Board concluded that "sought to acquire" includes substantial steps falling short of filing the Form I-485. Id. Specifically, the Board found that the respondent's and his family's actions of hiring an attorney, completing the necessary forms, and issuing a money order were sufficient to demonstrate that the respondent sought to acquire permanent resident status with one year. Id.

In another decision, the Board similarly interpreted the "sought to acquire" requirement broadly. Humberto Abrahan Castillo-Bonilla, A098-282-359, 2008 WL 4146759 (BIA Aug. 20, 2008). The respondent had requested adjustment of status before the immigration judge at two hearings prior to the date his visa became available. Id. Additionally, the respondent indicated in an appeal brief, filed a few months after his visa became available, that he was seeking adjustment of status. Id. The respondent then filed an application for adjustment of status fourteen months after his visa became available. Id. The Board concluded that the respondent's actions were sufficient to demonstrate that he sought to acquire lawful permanent resident status within the year, despite not having formally filed an application during that period. Id.

The Board has also concluded that a respondent sought to acquire adjustment of status where her parents hired counsel to prepare the adjustment application within one year of the priority date becoming current, and the application was filed within a reasonable period

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· thereafter. Ji Young Kim, A077-828-503, 2004 WL 3187209 (BIA Dec. 20, 2004); cf. Elizabeth Francisca Garcia, A077-806· 733, 2007 WL 2463913 (BIA Mar. 6, 2006) (holding that respondent did not seek to acquire status when she bad merely consulted with an attorney, noting that had she retained counsel within one year and filed her application "soon thereafter'' she would have met the requirement).

The Court recognizes that the U.S. Citizenship and Immigration Services (USCIS) has interpreted the phrase "sought to acquire" to require that the beneficiary file an adjustment application with one year of visa availability. See Donald Neufeld, U.S. Dept. of Homeland Security, U.S. Citizenship and Immigration Serv., Memorandtun HQ DOMO 7016.1, Revised Guidance for the Child Status Protection Act (CSPA) (May 6, 2008). However, the Court is not bound by the interpretation of the USCIS. See Matter ofMIV Saru Meru. 20 I&N Dec. 592, 595 (BIA 1992). Moreover, the Court finds that the Eleventh Circuit's and the Board's reasoning regarding Congress's use of the phrase "sought to acquire" rather than the term "filed" is highly persuasive, and the Court will follow this reasoning. The Court therefore finds that the phrase "sought to acquire" includes substantial steps taken to seek adjustment of status which fall short of formally filing the application.

Additionally, after considering the totality of the evidence, the Court finds that Respondent sought to acquire lawful permanent residence within one year ofhis visa becoming available. Respondent and his parents had been working with an immigration consultant named Betina to gain lawful permanent residency since 2000 or 200 I. Respondent first indicated to the Court that he was seeking adjustment of status on December 13,2007, while his father's visa petition was still pending. As soon as the petition was approved and a visa was available, Respondent's parents again met with Betina and paid her to file their adjustment applications, which were approved in early 2010. Respondent's parents also paid Betina to file an adjustment application for Respondent, but she advised them to wait to file Respondent's application because of his criminal record. Respondent's parents relied on this advice, as they lacked knowledge of the immigration process, and neither they nor Betina filed an adjustment application for Respondent. However, at his first hearing before the Court after his release from criminal custody, only three months beyond the relevant one-year period, Respondent again indicated his intent to file for adjustment. A short two months later, Respondent filed his application with the assistance of counsel. Considering that the Board, albeit in unpublished cases, has found that respondents sought to acquire status by taking only some of the steps taken by Respondent during the one-year period, the Court finds that Respondent has sufficiently demonstrated that he sought to acquire lawful permanent residence within one year of a visa becoming available to him.

The Department agrees with the Court's finding that "sought to acquire" can be read broadly and does not necessarily require filing of the Form I-485 within one year of visa availability. Nevertheless, the Department argues that Respondent has not demonstrated that he sought to acquire lawful permanent resident status by August 2010 because he caused the delay in filing through his criminal incarceration and because his parents made a "deliberate choice" not to file his application based on his criminal history.

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The Department relies on two unpublished cases in support of its argument. In one case, the Ninth Circuit found that the respondent was not eligible for protection under the CSP A because he filed his adjustment application in January 2004, almost seven years after his visa had become available and more than a year after the CSPA was enacted. Echeverria-Barboza v. Holder, 455 Fed. App'x 960 (9th Cir. Aug. 3, 2011). In the other case, the Board held that the respondent could not demonstrate that he sought to acquire lawful status through his parents' timely consultation with a lawyer because his parents decided not file his adjustment application based on his criminal convictions. Mario Francisco Cisneros-Baron, A088-894-1723, 2009 WL 3713339 (BlA Oct. 29, 2009). In denying the application, the Board noted that the CSPA was created "to protect an alien child from aging out due to no fault of his own," and part of the reason the respondent aged out was related to his criminal behavior. Id.

The Court finds that the present matter is distinguishable from the Department's cases. First, in the Ninth Circuit decision, there was no indication that the respondent took any steps to seek adjustment of status prior to the date he filed his application. Echeverria-Barboza, 455 Fed. App'x 960. Therefore, unlike in the present matter, the only date for the court to consider was the date the respondent filed his application, which was well beyond one year after his visa became available. Id. In the Board decision, although the respondent missed the one-year filing deadline in part due to his criminal convictions, he, unlike Respondent, faced a series of additional delays before he indicated his intent to seek adjustment of status. Cisneros-Baron, 2009 WL 3713339. First, the respondent faced additional criminal prosecution and was placed in removal proceedings. Id. He was then granted voluntary departure, departed the United States, illegally reentered the United States, and was again placed in removal proceedings. Id. It was not until these removal proceedings when the respondent first indicated his intent to file for adjustment of status. Id. In addition to considering the respondent's criminal history, the Board relied on the fact that the respondent did not file his application "within a reasonable period" after the relevant period. Id. The Board held that, "[ u ]nder these circumstances," the respondent did not seek to acquire status within the requisite time period. Id. As Respondent's circumstances are more closely aligned with the unpublished decisions discussed above, in which the Board found that the respondents were eligible for protection under the CSP A, the Court is not persuaded by the decisions cited by the Department.

The Court recognizes that Respondent was in criminal custody for much of the relevant one-year period due to his own misbehavior. However, the Court finds that Respondent's custody status is only a minor consideration in determining whether he sought to acquire permanent residence in a timely manner. In fact, Respondent's incarceration does not serve to mitigate the significance of the substantial steps taken by Respondent and his parents both prior to and during his incarceration. Moreover, the Court finds that the CSPA's purpose of protecting children who "aged out" due to administrative delays is served in the present matter. Respondent's father's employer filed a visa petition when Respondent was only twelve years old. This petition was pending in the administrative process for over nine years, and it was not approved until well after a visa number was available and after Respondent had turned twentyone. Therefore, the Court finds that Respondent's criminal history is an insufficient basis, on its own, to deny him protection under the CSP A.

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The Department additionally argues that Respondent's and his parents' reliance on Betina is insufficient to excuse the untimely filing because they knew that she was not an attorney. However, the Court's analysis is focused on the affirmative steps that were taken to seek adjustment prior to the expiration of the relevant period rather than determining if the untimely filing can be excused. Moreover, the Court is satisfied that Respondent's parents reasonably relied on Betina's advice. Respondent's father testified that he did not know how to proceed with Respondent's application, so he trusted Betina. At that point, Respondent's parents had been working with Betina for almost ten years, and she had successfully assisted them in obtaining a visa and adjusting their status. Additionally, Betina told Respondent's parents that she worked with an attorney, and Respondent's parents paid Betina directly for the attorney's services. Additinoally, Respondent's parents did not complete or file their own adjustment applications nor were they aware of how Respondent's age, criminal convictions, or ongoing immigration proceedings may alter the filing process. Therefore, the Court finds that Respondent's parents' reliance on Betina's advice was reasonable and their consultation with her regarding Respondent's application constitutes a substantial step toward adjusting his status.

In sum, the Court finds that Respondent is eligible to receive a visa as a derivative child beneficiary on his father's approved Form 1-140 under the protection of the CSP A. See INA § 203(h). Under the CSP A formula, Respondent was well under the age of twenty-one on the date a visa became available to him. Additionally, considering that Respondent asserted his intent to file for adjustment before his visa was available, that his parents attempted to hire Betina to file his adjustment application within a few months after his visa became available, and that he formally filed his application only one year and five months after his visa became available, the Court finds that Respondent sought to acquire lawful permanent residence within one year of visa availability. Therefore, Respondent is eligible to receive an immigrant visa.

As discussed above, the parties do not dispute that Respondent is otherwise eligible to adjust his status under INA §§ 245(a) and (i). Accordingly, the Court finds that Respondent is statutorily eligible to adjust his status to that of a lawful permanent resident.

B. Discretion

In addition to meeting the statutory requirements for adjustment of status, a respondent must demonstrate that he merits a favorable exercise of discretion by the Court. See INA §§ 240(c)(4)(A), 245(a). In exercising its discretion, the Court must review each application "on a case by case basis by 'taking into account the social and humane considerations presented in an applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident."' Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir. 1994) (citingYenes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir. 1993)); MatterofC-V-T-, 22 I&N Dec. 7, 11 (BIA 1998) (citing Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978)).

Positive factors relevant to a discretionary determination include, but are not limited to: family ties in the United States; residency of long duration in this country; evidence of hardship to the respondent and his family should he be removed; service in the Armed Forces; history of employment; the existence of property or business ties; the existence of worthwhile community service; proof of genuine rehabilitation if a criminal record exists; and evidence attesting to the

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re8pondent's good moral character. Matter ofC-V-T-, 22 I&N Dec. at 11; Matter of Marin, 16 I&N Dec .. at 584-85. Negative factors include: the nature and underlying circumstances of the ground leading to removal; the presence of additional significant violations of immigration laws; the existence of a criminal record; and other evidence indicative of the espondent's bad character or undesirability. !d. In balancing the adverse factors against the favorable factors, "[ m ]ore serious misconduct necessarily weighs more heavily against an exercise of discretion than does less serious misconduct." Matter of Sotelo-Sotelo, 23 I&N Dec. 201, 203 (BIA 2001 ). However, the Court enjoys "wide latitude in addressing discretion" and is not limited in the factors that it may consider in determining whether to grant discretionary relief. Matter of Sesay, 25 I&N Dec. 431,443 (BIA 2011).

In the instant matter, Respondent has presented a challenging application for adjustment of status because there are significant negative and positive factors. Negative factors include Respondent's criminal misconduct, affiliation with known gang members, membership in a criminal street gang, Respondent's false testimony before the Immigration Judge regarding his gang affiliation, and false statements made to a law enforceiJlent officer while that officer was carrying out his official duties. Positive factors include Respondent's lengthy residency in the United States since the age of three and the existence of strong family ties in the United States, including his lawful permanent resident parents and sister. Although these factors present a close case, the Court finds that the positive factors outweigh the negative factors. Therefore, Respondent's application for adjustment of status warrants a favorable exercise of discretion.

Accordingly, the following order shall be entered:

ORDER

IT IS ORDERED that Respondent's application for adjustment of status be granted.

Appeal is reserved for both parties. Any notice of appeal must be received by the Board of Immigration Appeals on or before July 2, 2012.

DATE: June 1, 2012

CERTIFICATE Of SERVICI

mtS DOCUMEII' WAS SEIMD 81

[ ] MAIL (M) .l.tt£ERSONAL SEtmCE (PI TO: [ l ALIEN ff A\IEJt tJo Custodial Olflcer

DATE: i1~~SI ATTm'Y: coul?~~ t'V-n()CA.._ ':tachmen!s: [ ] EOIR-33 [ l EOIR~ ' ' ' ~qal Services list t J Other 12

David C. Anderson Immigration Judge

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SOHEILA HOSSEINI, ESQ.

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMM1GRATION REVIEW

IMMIGRATION COURT 300 NO LOS ANGELES ST. RM 4330

LOS ANGELES, CA 90012

23276 SOUTH POINT DRIVE, STE. 218 LAGUNA HILLS, CA 92653

IN THE MATTER OF LINARES-ISIDORO, FERNANDO

FILE A 095-729-470

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Jun 25, 2012

~ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

~ WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, 1\ND FEE OR FEE WAIVER REQUEST I ' MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041

. ' \ ..

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240 (c},(6), "; 8 U.S.C. SECTION ~29a(~·(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

OTHER:

CC: LIN, JEAN, ESQ.

IMMIGRATION COURT 300 NO LOS ANGELES ST. RM 4330 LOS ANGELES, CA 90012

606 S. OLIVE STREET, 8th LOS ANGELES, CA, 90014

FLOOR

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File No.:

• • UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

LOS ANGELES, CALIFORNIA

A095729470 ) DETAINED )

In the Matter of: )

LINARES-ISIDORO, Fernando

Respondent.

) IN REMOVAL PROCEEDINGS ) ) )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) -present without admission or parole

APPLICATION: Adjustment of Status under INA§ 245(a)

ON BEHALF OF RESPONDENT: Soheila Hosseini, Esquire 23276 South Point Drive, Suite 218 Laguna Hills, California 92653

ON BEHALF OF THE DEPARTMENT: Jean Lin, Assistant Chief Counsel U.S. Department of Homeland Security 300 North Los Angeles Street, Room 81 08 Los Angeles, California 90012

DECISION AND ORDER OF THE IMMIGRATION JUDGE DENYING MOTION TO RECONSIDER

I. Procedural Historv

On June I, 2012, the Immigration Judge published his Decision and Order granting Respondent's application for adjustment of status. Respondent asserted that, despite the fact that he was no longer considered a child, he was eligible to adjust his status as a derivative beneficiary on his father's Form I-140 under the Child Status Protection Act (CSPA), Pub. L. No. I 07-208, 116 Stat. 927 (2002). The Department of Homeland Security ("Department") argued that Respondent could not benefit from the CSP A because he did not seek to acquire lawful permanent residence within one year of his visa becoming available. The Department argued that Respondent could not have sought to acquire lawful permanent residence until he filed his written application on form I-485, something that Respondent did not do until approximately one year, five months after his visa became available.

The Immigration Judge found that Respondent was eligible to receive a visa as a derivative beneficiary under the CSPA. The Immigration Judge considered the facts and circwnstances of the Respondent's pursuit of adjustment of status and found that Respondent sought to acquire lawful permanent residence within one year of visa availability.

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On June I, 2012, the Immigration Judge reserved appeal of the decision for both parties. Any notice of appeal must be received by the Board of hnmigration Appeals ("Board") on or before July 2, 2012.

On June 8, 2012, the Board published Matter of Vazquez, 25 I&N Dec. 817 (BIA 2012). In that decision, the Board held that applicants for adjustment for status may establish that they may satisfy the "sought to acquire" provision by either filing the adjustment of status application, or by showing extraordinary circumstances. The Board stated that such extraordinary circumstances must go beyond merely contacting an attorney about initiating the process for obtaining a visa that has become available.

On June 20, 2012, the Department filed its Motion to Reconsider the hnmigration Judge's Decision Granting the Respondent's Application to Adjust Status. Citing Matter of Vazquez, the Department argued that Respondent's parents' seeking and taking advice from an attorney's assistant to delay his application, so that the Respondent would have time to clean up his criminal record, was not sufficient for meeting the requirement for having "sought to acquire" lawful permanent status. 1

Applying Matter of V azauez, the hnmigration Judge finds that there are extraordinary circumstances. Respondent's family did more than simply contact an attorney about initiating the process for obtaining a visa that has become available.

Respondent's father testified that he was granted lawful permanent residence on January 26, 2010, through a visa petition filed by his employer, an Italian restaurant called Gina's Pizza. Mr. Linares stated that his wife and Respondent were included as derivatives on his visa petition. When asked why Respondent was not included in his 20 I 0 adjustment application, Mr. Linares stated that the person who helped him with the applications, a woman named Betina, 2 told him that Respondent had to "clean up" his criminal record before he could file an application. Therefore, although Mr. Linares paid Betina to file all three adjustment applications, Betina did not file Respondent's application. Mr. Linares stated that he could not say whose decision it was to withhold Respondent's application because he relied completely on Betina's advice.

Mr. Linares testified that he first hired Betina in 2000 or 200 I to assist him in gaining lawful status. He stated that he was referred to Betina through some of his friends. Betina was not an attorney, but she worked with an attorney, Timothy Meyers. However, Mr. Meyers never

1In the Motion to Reconsider, the Department requested that the Immigration Judge issue its decision by June 27,

20 12, in order to allow the Department to file a notice of appeal with the Board by July 2, 2012. Therefore, the Department is effectively requesting that the Immigration Judge deprive Respondent an opportunity to respond to the Department's Motion. In lbeagene v. Gonzales, 411 F.3d I 107 (9th Cir. 2005), the Ninth Circuit held that the Board may apply interVening case law to a decision, upon motion to reconsider filed by DHS, without providing Respondent an opportUnity to respond. In light of the fact that Respondent is detained during the pendency of the Department's appeal, and because the Immigration Judge is finding no reason in the Department's Motion to Reconsider to upset the decision granting adjustment of status, issuing a decision on the Motion without providing Respondent an opportunity to respond to the Motion is appropriate in this particular matter.

2 Mr. Linares stated that Betina's last name was Vilsasure at the time he worked with her, but he believes that she has since changed her name, and he does not know her current last name.

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met with or advised Mr. Linares. Betina's office was located in a separate building from Mr. Meyers's office. Mr. Linares knew that Betina worked with Mr. Meyers because Mr. Linares paid Betina to arrange for Mr. Meyers to represent Respondent in his immigration proceedings.

Mr. Linares believed that Betina offered good advice about waiting to file Respondent's application because he did not know what he was supposed to do. Even though he knew he had to file his own adjustment application to gain lawful permanent residence, he did not know if he needed to wait to file Respondent's application because Respondent was already twenty-one years old, he had a criminal record, and he was in ongoing immigration proceedings. Mr. Linares stated that he did not know what kind of paperwork was required to file Respondent's application. He also stated that he did not fill out his own adjustment application; rather, Betina completed and filed his and his wife's applications. Betina never informed Mr. Linares about the proper time to file Respondent's application, and Mr. Linares does not know why.

Respondent and his parents had been working with an immigration consultant named Betina to gain lawful permanent residency since 2000 or 2001. Respondent first indicated to the Court that he was seeking adjustment of status on December 13,2007, while his father's visa petition was still pending. As soon as the petition was approved and a visa was available, Respondent's parents again met with Betina and paid her to file their adjustment applications, which were approved in early 2010. Respondent's parents also paid Betina to file an adjustment application for Respondent, but she advised them to wait to file Respondent's application because of his criminal record. Respondent's parents relied on this advice, as they lacked knowledge of the immigration process, and neither they nor Betina filed an adjustment application for Respondent. However, at his first hearing before the Court after his release from criminal custody, only three months beyond the relevant one-year period, Respondent again indicated his intent to file for adjustment. A short two months later, Respondent filed his application with the assistance of counsel.

Accordingly, the following order shall be entered:

ORDER

IT IS ORDERED that the Department's Motion to Reconsider be DENIED.

DATE: June 25,2012 ~~

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David C. Anderson Immigration Judge

fernando linares-isidoro, a095 729 470 (bia nov. 30, 2012)

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