..

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, V.S. Deparent of Justce
:;;e
K HATLER, ESQUIRE
P.O. Box 85
Flornce, / 85232-000
Name: OLIVAS-MOTA MUEL JESUS
Exeutive Ofce fr Imigton Review
8oarJo]l~~iga:ioxppea/s
Ofce o]the Clerk
Jf0LrrtvgFvilcJ000
f0rCbanh. Jln JWl
U.S. OHSTrlal Atrey UnltEA
P.O. Box 25158
Phoenix, A 85002
A021-179705
Da of this notice: 8/9/010
Enclose is a cpy of te Boa's decisi oU ad orer i te above-refernce case.
Enclosr
Pael Members:
Mullae, Hug G .
Sincerly,
Dona Car
Chief Cle
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)
OLIVA-MOTA MNUEL JESUS
ICE, 1705 E. HNA RD.
A021-179705
ELOY, A 85231
. U.S. Department of Justice
Executive Ofce fr Im igation Review
Board of Immigation Appeal
Ofce of rie Clerk
$07Lwru@F/kr,mItrJ000
I0ktL0tm0, lgl0 JJWf
U.S. DHSTrlal Atorey UnlE
P.O. Box 25158
Phoenix, A 85002
Name: OLIVA-MOlA MANUEL JESUS A021 179705
)ate o this notice: 8//010
Enclosed is a cpy of the Board's desion in the above-referenced . This cpy Is being
provide to you as a curesy. Your atorey or representative has been sred with this
decsion puruant to 8 C.F.R. 1292.S(a). If the atced decsion order that you be remove
frm the Unite States or afrs an Immigration Judge's decision orerng that you be
remove, any pettion for review of the attached decision must b filed with and recive by the
appropriate cur of appeals wthin 30 days of the date of the decision.
Enclosu
Pael Member:
Mullae, Hug G.
Sincerlv.
/C Ct
Dona Car
Chief Clek
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)
U.S. Deparent of Justice
Executve Ofce for Imigtion Review
Dcision oflhe Boad of Immigtion Appeals
Falls Church, Virinia 220 J
File:
A021 179 705 - Eloy, A Date. AUB 09Z010
In re: MANUEL JESUS OLIV AS-MOTI A a.k.a. Mauel Jesus Oliva-Nota
I RMOVA PROCEEDIGS
APPEA
ON BEHALF OF RSPONDENT: Kaa Haler, Esquire
ON BEHALF OF OHS:
CHRGE:
Shaw McAllister
Assistat Chief Counsel
Notice: Sec. 237(a)(2)(A)(ii), I&N Act [8 U.S.C. l 227(a}(2)(A)(ii)]
Convicted of to or more crimes involvng moral turitude
APPLICATION: Cacellation of removal
Te rsndent, a native ad citizen of Mexico, ha timely appealed te Immigtion Judge's
April 8, 2010, decision denying cacellation of removal puuat to section 240A(a) of the
Imigton ad Natonait Act (the "Act"), 8 U.S.C. 1229bA). The appeal wll b dismissd.
We review the Immigration Judge's fndings of fact, including as to te crdibility of testimony,
under the "clealy eroneous" standad, while we review de ova questions of Jaw, discton
ad judgement+ See Mauer ] A-S-B-, 241&N DeC
4
93 (BIA 2008); 8 C.F.R. 1003.l(d)(J). Given
that the respondent's application WB fled afer May 11, 2005, tese proceeings govered by
the provisions of the RA ID Act of 2005. s--Matter a/S-B-, 24 l&N Dec. 42 (BIA 2006).
Hence, le aendment made by te RAL ID Act to section 240(c) of the Act, 8 U.S.C. 1229a(c),
apply to ts cae.
Upon de ovrviewg we agre with the Immigrtion Judge that the respondent is femovable d
m aien convicted of two or more crimes involving morl turitude (CIMT) under section
237(a)(2)(A)(ii) of the Act (l.J. at 5-6). The respndCnt does not dispute that his conviction fr
facilittion (unlawl pssession of marjuaa fr sale), in violation of Azona Revised Statte
(ARS) 13-1004, 3405(8)(6) (Exh.
4
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C) is CIMT (Exh. 4
). However, he disagrees with te
Immigtion Judges conclusion tat his conviction fr endagerent, in violaton of ARS 13-1201
(Exh. 4-0). was a CIT (Respondent's Brief at 6-13 ).
I deterining wheter a paricula ofene involves mor tuitde. we apply the fework
Mfr by the Atorey General i Mater a/s|/o:--|a,24 I&N Dec. 687 (A.G. 2008). We frt
apply a categorica approach to deterine whether there is a rOalistic probabilit" that the alien s
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)
A021 179 705
statute of conviction would b applied to reach conduct that does not involve morl tpitude.
Id at 689-90. Wher te categorical aalysis does not resolve the issue, we proced with a modife
ctegorcal inquir and examine te alien's record of conviction including document such a the
chaging document, judgment, jur instrctions. signed glty plea, and plea trascript fr indication
tat te ofense involved morl turitde. Id. at 690. Finally, if te record of conviction is
inconclusive, we may to the extent necessar ad approprate, consider evidence beyond the fnal
conviction document to discer the natue of the underlying conviction. Id
A crime is a CIT if it involves rprehensible conduct comited wit some degree of sciente,
whether specifc intent, deliberteness, willflness, or rcklessness. Matter of Silva-Trevino,
sura at 706 & n.5.
Under ARS 13-1201, a person commits endangerent by recklessly endangering anoter
person with a substatial rsk of imminent death or physical injur. We canot conclude that the
ofense is categorically a crme involving moral turpitude stictly because of the reckless mens rea
element. We ha held that & ofense involving reckless state of mind will not be deemed a crime
involving mora tuitude absent the presence of some aggavating factor such as the deat of a
person or the infiction of bodily injur. See Matrer of Fulaau, 21 J&N Dec. 4 75 (BIA 1996); Matter
of Wojtkw, 18 l&N Dec. 111 (BIA 1981); Matter of Medina, 15 l&N Dec. 611 (BIA 1976).
However, ARS 13-1201 doCs not have a an element such aggravating factor. Tus, the
categorical approach does not answer te question of whether the ofense is a crime involving
morl titude. ad the modifed categorical approach is to be applied. See Mater of
Silva-Trevino, supra.
The Imigation Judge went beyond the .frmal conviction docwents to discer tat the
respndent's conviction was a CIMT. In detennining that the respondent's convicton was fr
.. rprehensible conduct," she rviewed the police repor which showed that during a dispute, te
respndent shot his wife in the abdomen with a hunting rife (Exh. 5). We agree with the
hmigtion Judge that these fndings are sufcient to show "reprehensible conduct... See Maller
of Silva-Trevino. supra, at 706 & n.5. In going beyond the rord of conviction, te Immigation
Judge did not improperly consider te respondent's "conduct." See Toktly ''Ashcrof, 371 F.3d
613, 622 (9t Cir 2004). (Respndent's Brief at 11-13). Regadless of whether the shooting wa
aCcident or not (Respondent's Brief at 12), te respndent wa convicted under a sate tat
criminalizes reckle5s conduct, not mere accidental conduct. Thus, the men ra of recklessness,
when coupled with the "reprehensible conduct" of the respondenf s wfe beig shot wth rfe
dung an agument is sufcient to esablish the morally titdinous nature of the rspondent's
ofense, despite the absenc.e of a specifc intent on the respondent's pa to ha his wife.
Accordingly. we agree with the Immigtion Judge that the respondent is removable an alien who
has cmmited two crmes involving moral titude.
We also age wt te Immigration Judge's deCision to deny te respondent's application fr
cacellation of rmova uder section 240A(a) of the Act (l.J. at 7-17). Te respondent contends that
te Immigration Judge ered in not gting the respondent discrtiona relief (Respondent's Brief
at 14-15; l.J. at 9-17). The Immigtion Judge corectly set frh the legal stdards fr conducting
a discrtiona evaluation, and toroughly and adequately discussed ad balaced the positive ad
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)
A021 179 705
negative factors in te rspondent's sitation. See Matter (c-i1,22 l&N De. 7, 11(BIA1998)
(sing that the genera sdads developd in Maller of Marin, 16 l&N De. 581, 584-85
(BlA 1978), frte exeise ofdiscretonunder section212(c)oftheAct, 8U.S.C.1182(c)(l994),
whch W the prdecessor provision to section 240A(a) of the Act, ae applicable to the eei of
discrtion under section 240A(a) of the Act). Reviewing the Immigration Judge's discrtiona
denial de novo, we fnd no basis to revere the Immigation Judge's deterination that the
rspondent does not mert the relief of cacellation of rmoval in the exercise of disrtion. See id.;
Matter t8tri,23 l&N De. 201 (BIA 2001).
Aong the factor deemed adverse to a alien ae the nature ad underlying cirumstance of
the removabilit grud at issue, the prsence of additional sigifcat violations of this cout's
immigtion laws, te existence of a criminal record and, if so, its natre, rcency, and serousess,
ad the prsence of other evidence indicative of a rspndent's bad charcter or udCiDbilit W a
pm1aent resident of this countr. Favorable considerations include such factors as faly ties
within the United States, residence of long duration in this countr (pari culaly when the inception
of residence occued while the respndent was of young age). evidence of hardship to te
rspndent and faily if depnation occurs, serice in this count's An ed Forcs, ad a histor
of employment. Additional favorable fctors include the existence of propr or business ties,
evidence of value ad serice to the commuity, prof of genuine rehabilitation if a crminal recor
exists, ad other evidence atesting to d resondent's good chaacter (e.g., af davts fm faily,
frends, ad responsible comunit rprsentatives). MauerofC-V-T-, supra, at 12,citing Matier
/ Marin, supra.
Tere are sigifcant negative fctors that militate against a favorable exercise of discretion in
the respondent's case. Specifcally, the respondent was convicted in August 2003 fr facilitation
(unlal pssession of marijuaa), fr whch he rOeived 3 yeas pIobation,and in November2007
fr endagenent, fr which he received a jail sentence of2 yea. See Exhs. 4C and 40.
A respndent who has a criminal rcord will ordinarily b requir to prsnt evde of
rehabilittion bfIe rlief is gnted d a matter of discretion. See Matter of Marin, supra. at 588;
see also Mater of Buscemi, 19 I&N Dec. 628 (BIA l 988). However, applitoU involvng
convicted aiens must be evaluated on a cebycse bais, with rehabilittion a factor to b
considered inthe eXercise of discrtion. MatterofEdard,20l&NDec.191(BIA1990). We have
held that a showing of Ohabilitation is not a absolute pDIequisite in ever cae involving a alien
with a criminal rcord. Matter fC-V-Tg supra, at 12. However, the respndent's crminal rord
is ver serous. Regading the fcilitation conviction, as the Immigration JUdge alluded to, the
Atorey Generl has stated that few crimes ar mor exploitative tha drg trafcking (l.J. at 14).
See Matter of Y-L-, 23 J&N Dec. 27-, 275-76 (A.G. 2002). Te circumstnces of te crme W that
the rendent allowed a fiend to store over 200 pounds of majua at the house he shar with
his wife ad to small childrn (Tr. 73-74; 83-87). Te rspndent's endagenent conviction
is also tubling in that the facts show tat his wife wa shot in te abdomen dung te couse of W
arument, ad the rspondent kept a loaded rfe in house where his to small children styed. I
ligt of te seriouness of the respondent's criminal record, rhabilitation is a import factor in
this cae. However, the rspondent did not tae ay Dhabilitation coU dung his 2 yes in
prison (l.J. at 13; Tr. at 93).
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)
A021 179 705
As the Immigion Judge deterined, te respndent ha substatial equities in tis cutr,
including residence in the United States since he W 10 days old (U. at 9; E. 2). Te respondent
also has fail
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ties t lawl peraent rsidents and United States citizns, including his wife, to
children, fther, and tee sister (l.J. at 9-10). We have no rason to doubt that the respondent's
removal to Mexico would cause him ver substantial personal hardship, and his relatives in te
United Sttes would aso sufer hadship, bt emotional ad economic, in cnection wth his
rmoval. Te rspndent has a reasonably solid employment histor considering his cmina record,
does not ow prper, has not sered in the Aned Fores, and has not be n a pron of picula
value to his conwit.
I balacing te various fctors in the respondent's cae, we take note of his substta favorble
equities However, the respondent's criminal record is recent and ver serous. Te Im igaton
Judge weighed the psitive ad negative fctors in ts cae, but corectly deterined tt the
negative fctor$ outeighed the positive fctors.
Accordingly, the fllowing orer shall b issued.
ORER: Te appal is dismissd.
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Cite as: Manuel Jesus Olivas-Matta, A021 179 705 (BIA Aug. 9, 2010)

U. S. DEPATMET OF JSTICE
EXECUIVE OFFICE FOR IMIGRTION REVIEW
IMIGRTION COURT
Eloy, Arizona
)
File A 21 179 705 Date: April 8, 2010
In the Matter of
ML JESUS OLIVAS-MOTTA
Respondent
)
)
)
)
IN RMOVA PROCEEDINGS
CHGE: Section 237(a) (2} (A) (ii) of the Imigration
ad Nationality Act - convicted of two crimes
involving moral turitude not arising out of a
single scheme of criminal misconduct
APLICTION:
APPECES:
Cancellation of Removal for Lawful Pernent
Resident under Section 240A(a) of the Act,
Voluntar Departure
ON BEHF OF RESPONENT: ON BEHF OF THE DEPA
OF HOMELD SECUITY:

t
G
Elizaeth Juarez, Esqire
`
*
G
Shaw McAllister, Esqire
OR DECISION OF THE IMIGTION JDGE
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The Respondent is a 33-year-old married male, native. ad
citizen of Mexico. The United States Department of Homelad
secuity brought these removal proceedings against the Respondent
uder the authority of the Immigration ad Nationality Act.
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Proceedings were conenced with the filing

.
of a Notice to Appear
with the Immigration Court on April 6, 2009. See Ehibit 1.
Reepondent through Cousel admitted the factual
allegations contained in the charging document. He however denied
the charge referenced aove. Respondent desigted Mexico as the
coutr of removal should that become necessary.
O Jue 2, 2009, Respondent filed a application for
cacellation of removal pursuant to Section 240A(a) of the Act.
See Ehibit 2. L October 26, 2009, Respondent motioned to
terinate removal proceedings. See Eibit 6. The Department of
Homeland Security's opposition to the Respondent's motion to
terinate is contained in Ehibit 7.
Te Department of Homeland Security sumitted
authenticated documentation to establish the alleged convictions
ad the charge, contained in Ehibit #4. The Department of
Homelad Security has the burden to prove by clear and convincing
evidence that the Respondent is removable as charged. No decision
on deportability shall be valid unless it is based upon reasonale
sustatial and probative evidence. Based upon the Court's review
of the conviction documents, the applicable statute and utilizing
the framework promulgated by the Attorney General in
Silva-Trevino, citations omitted, in analyzing the two convictions
this Court denied the Respondent's motion to terinate ad
sustained the single charge of removability, finding that the
Department of Homelad Security had met its burden of clear ad
A 21 179 705
2 April 8, 2010
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convincing evidence.
The documents sumitted by the Department of Homelad
Security in Eibit #4 estalish that on Augst 11, 2003,
Respondent was convicted in the superior Court of Aizona for the
offense of facilitation, unlawful possession of marijuaa for
sale, in violation of Arizona Revised Statute Section
13-1004, 340 The documents also estalish tht Respondent, on
Novemer 26, 2007, was also convicted of the offense of
endangerent, in violation of Arizona Revised Statute Section
13-201.
To deterine whether Respondent's convictions qalify as
crimes involving moral turpitude, this Court follows the Attorey
General's recent framework set forth in Matter of Silva-Trevino,
citation omitted. The Attorey General in that case promulgated
the following definition of a crime involving moral turpitude: to
qualify as a crime involving moral turitude, the crime must
involve bth reprehensible conduct and some degree of scienter,
whether specific intent, deliberateness, willfulness, or
recklessness." The Attorey General made it clear that this
general definition of moral turitude sought to encompass and
describe existing Board precedent holding us to various species of
fraud and corrption as well as conduct that is inherently base,
vile, or depraved, and contrar to the accepted rles of morality
ad the duties owed between persons or to society in general.
The scienter reqirement is met by conduct that is
A 21 179 705 3 April 2010
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intentional, willful, or reckless, where reckless reqires an
actual awareness of the risk created by the criminal violator's
actions.
The United states court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises, has held that at
a Court's deference to the decisions of the Board of Imigration
Apeals interreting whether a particular offense qalifies as a
crime involving moral turitude under the Immigration Laws. See
Marolejo-Campo v. Holder, 558 F.3d 903 (9th Cir. 2009).
Utilizing the Silva-Trevino approach to deterine the
nature of the offense, first, a categorical approach must be
employed uder which the criminal statute at issue is examined to
ascertain whether moral turpitude is intrinsic to all offenses
that have a realistic probability of being prosecuted under that
statute. In conducting that analysis, the Immigration Judge is to
deterine whether there's a realistic probability that the state
or federal criminal statute pursuant to which Respondent was
convicted would be applied to reach conduct that does not involve
moral turitude. The Court must deterine if at the time of the
alien's removal proceeding, ay actual case exists in which the
relevat criminal statute was applied to conduct that did not
involve moral turitude. If the statute has not been so applied
in any case, including the Respondent's case, the Immigration
Judge ca reasonly conclude that all convictions uder the
statute may categorically be treated as ones involving moral
turpitude.
A 21 179 705
4 April 8, 2010
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Second, if the issue canot be resolved under the
categorical approach, a modified categorical approach is to be
udertaken, which reqires inspection of specified documents
comprising of the alien's record of conviction to discer the
nature of the underlying conviction. Finally, if the record of
conviction is inconclusive, the Attorey General has held that,
because moral turitude is not an element of the crime, evidence
beyond the record of conviction may be considered in evaluating
whether a alien's offense constitutes a crime involving moral
turitude. The scope of such review is not suject to the
evidentiar limitations of TayloZ v . United States or
Shepherd v. United States. The Attorey General makes clear that
the goal of the modified categorical inquir is to discern the
nture of the uderlying conviction where a mere examination of
the statute itself does not yield the necessary inforation. It
is not a occasion to re-litigate facts or to present any and all
evidence bearing on an alien's conduct lead into the conviction.
This cort found that the offense of facilitation
contained an essential element, some degree of volutary action
towards the completion of the crime constituting the underlying
offense. In Respondent's case, the uderlying offense was
possession for sale of marijuaa. Aguably, the sae analysis
would apply as in a solicitation and unlawful possession of
marijuana for sale, which the Ninth Circuit Court of Appeals ha
foud to be a morally turitudinous offense relating to the sale
A 21 179 705 5 April 8, 2010
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(
of marijuaa. See Barragan-Lopez v. Mukasey, sos F.3d 899, 903-.
04 (9th Cir. 2007).
Based upon the above, this Court therefore
foud that Respondent's offense of facilitation, ulawful
possession of marijuaa for sale is a crime involving moral
tuitude
Respondent's conviction for endangerent i violation of
Aizona Revised Statute Section 1201, reads a person comits
endangerent by recklessly endangering another person with the
sustantial risk of iminent death or physical injur.
Endagerent has sustantial risk of imminent death or with
substantial risk of imminent death is designated as a Class 6
felony uder which Respondent was convicted. The scienter element
of reckless is evident in the statutor language. Regarding
whether Respondent's offense ca be classified as a reprehensible
conduct, the Court found that under the categorical approachg
moral turitude is not intrinsic to all offenses that hve
realistic probaility of being prosecuted under the statute.
Under the modified categorical approach the Court foud that a
inspection of the record of conviction contained in Ehibit 4 also
8
does not or did not resolve the nture of the uderlying
conviction. Ad therefore this Court foud tht it must consider
evidence beyond the record of conviction. Under the Third Step as
peritted uder Silva-Trevino, the Court considered the police
report containEibit #5. Those documents revealed that
during a dispute Respondent shot his wife in the adomen with a
A 21 179 705 6 1pril 2010
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huting rifle. Based upon the Court's review of the additional
documents, this Court found that Respondent's conduct was
reprehensible ad therefore the offense of endangerent
constituted a crime involving moral turitude ad thereby
sustained the ave referenced charge.
STATEMENT OF THE LW
To be eligible for cancellation of removal under Section
240A(a) of the Inigration and Nationality Act, an alien must
demonstrate that he has been lawfully admitted with perent
residence for not less than five years, has resided in the United
States continuously for seven yeas after having been admitted in
ay status, ad has not been convicted of d aggravated felony.
In addition to satisfying these three statutor
eligibility reqirements, a applicant for relief uder Section
240A(a) of the Act must establish that he warrants such relief as
a matter of discretion. The general standards developed in
Matter of Marin, 16 I& Dec. 581 (BIA 1978) for the exercise of
discretion under 212(c) of the Act are applicale to the exercise
of discretion uder Section 240A(a). see Matter of C-V-T-, 22 I&N
Dec M 7 (BIA 1998). A Immigration Judge, upon review of the
record as a whole, must balance the adverse factors evidencing the
alien's udesirability as a peraent resident with the social ad
humne considerations presented in his behalf to deterine whether
the grating of relief appears in the best interest of this
countr. Te applicant for cancellation, however, need not first
A 21 179 705
7
April 8, 2010
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meet the t owing uusual or outstanding

eqities. See 23 I& Dec. 201 (BIA 2001).
Favorable considerations include such factors as family
ties within the United States, residence of long duration in this
coutry, particularly when the inception of residence occurred at
a young age, evidence of hardship to the Respondent ad his family
if removal occurs, serice in this countr's Aed Forces, a
histor of employent, the existence of property or business ties,
evidence of value and serice to the comunity, proof of genuine
rehabilitation if a criminal record exists, and other evidence
attesting to a Respondent's good character.
Aong the factors deemed adverse to an alien are the
natue and underlying circumstances of the grounds of removal that
are at issue, the presence of additional significant violations of
this coutr's Imigration Laws, the existence of a criminal
record ad if so its nature, recency, and seriousness, and the
presence of other evidence indicative of a Respondent's bad
character or udesirability as a permanent resident of this
countr. With respect to the issue of rehabilitation, a
Respondent who has a criminal record will ordinarily be reqired
to present evidence of rehabilitation before relief is granted as
mtter of discretion. However, applications involving convicted
alien must be evaluated on a case by case basis, with
rehabilitation a factor to be considered in the exercise of
discretion.
M 21 179 705 April a, 4
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FININGS A AYSIS
Te Respondent has been a lawful permanent resident for
more thew five years, and he also has resided in the United States
continuously for seven years after having been admitted in any
status. Although the RespoMdent has been convicted, his
convictions are not for aggravated felony. The issue in this
case th8refore is the discretionar balacing of factors within
the framework of Matter of C-V-T-.
Prior to the commencement of the Merits Hearing, the
Department of Homeland Security infoJed the Court that all
biometric checks had been completed and that a decision co1ld be
rendered in this matter. Also, prior to the admission of the
applicaion, the Respondent was given the opportunity to mae any
necessa: corrections to the application, and then swore or
affired before this Court that the application is correct, that
it was all tre and correct to the best of his knowledge#
In rendering U decision in this matter, the Court has
taken into consideration the documentary evidence contained O
part of the record marked and aditted from Eibits l through 9.
In addition to the documentar evidence, the Court bas also
considered the testimony of the Respondent, his fQter, and his
sister.
Respondent, having entered the United States wen he was
10 dys old, as a immigrant, has estalished longeity i this
coutr. He also has extensive family ties to the United states
9
^[1
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consisting of, but not limited to, his United States citizen wife
of thee-and-a-half years, two United States citizen children, his
lawful peranent resident father and three sisters who are all
legally present in this coutr. Although Respondent has family
in Mexico, he stated that he does not have any contact with them.
Respondent attended school, up to the ninth grade, in the United
States. He has worked full-time at Diamond Produce, loading
trcks ad taking inventor.
Respondent stated that if he is removed from the United
States, he has decided that his children would remain in the
United States as he would be unable to support them in Mexico.
He's also concered as to how it would affect his father. Prior
to his detention, Respondent stated that he saw his father daily
ad he also assisted his father financially ad escorted him to
his doctor visits. Respondent testified as to his father's
medical condition. According to the Respondent, in addition to
the documents contained in Eibit a, Respondent's father suffers
from lug problems, arthritis, and he has problems with his spinal
cord, ailments that he has suffered for qite a while. Respondent
described his relationship with his wife as a good one. He
testified that although he did not get married util 20 06, he had
been in a long-te: relationship with her prior to their union.
Respondent stated that if he were to return to Mexico, he would
also hve difficulty adjusting to life in that countr, as he is
ufailiar with that coutry.
A 21 179 705
He believes that his detention has
10 April 8, 2010
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been difficult for his family, especially his son who has some
learing disability and has developed a rebellious trait.
He
believes the family would also suffer financially, as although his
wife does hold full-time employent, she1s experiencing finacial
difficulty.
Respondent stated that he does not have any problems
with alcohol, has never been arrested for driving under the
influence, ad has never been affiliated with gangs. Respondent
admitted to prior drg use in 2000, and his participation in drg
education classes in 2003 which he completed. Respondent stated
that he did not take drg classes while in prison, and that he
last used drugs on New Year's Day in 2007.
Respondent testified in detail regarding his two
convictions. He admitted to being convicted in 2003 for the
offense of facilitation, ulawful possession for sale of
marijuana.
According to the Respondent, a friend of his was
exeriencing marital difficulties which caused the friend to
temporarily reside at the Respondent's home for approximately two
to three months. According to the Respondent, the friend asked
him to store some cars on Respondent1s
property, a reqest to which the Respondent consented.
Approximately one month after the friend moved into Respondent's
residence, Respondent learned that the friend was storing
marijuana in the home. To months after the friend had moved in
with the Respondent, Respondent's wife leaxed of the marijuana
A 21 179 705 11 April a, 2010
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being stored in the home. Ad according to the Respondent, the
wife disapproved of the conduct. The Respondent stated that he
then asked his friend to cease the storage of the drgs in his
home, but that the friend refused to do so. In order to get the
Respondent to remain silent aout the dug activityg the
Respondent stated that the friend gave him $500 which the
Respondent accepted + The storage of the marijuana in Respondent ` s
home continued until Respondent was arrested. A total of
+
approximately 221.3 pouds of marij una was found in the front
room of Respondent's garage. Respondent pled gilty to the
offense. According to the Respondent, the offense was
suseqently reduced to a misdemeanor and he completed his
probation
Respondent also testified about his 2007 conviction for
endangerent. Respondent's ife was the victim of this offense.
According to the Respondent, he had previously broken his wife's
cellular phone due to jealousy. On this occasion, Respondent
reqested that his wife produce the bill for the cellular phone in
order for hm to pay the amount owed and also for him to verify
the nature of her calls o According to the Respondent, his wife
could not tell him the exact location of the billy which caused
him to become suspicious. Respondent then decided to go over to
his father's residence and his wife did not wat him to leave the
house. Respondent testified that as he proceeded to get dessed_
Respondent spotted his father's rifle in his closet and realized
A 21 179 705 12 April 2010
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( M
V
that the rifle had print marks on it. Respondent then proceeded
to clean the gun. He stated that as be was cleaning the gun, his
wife grabbed the rifle and pointed it towards herself. He
attempted to take the rifle away from her when it went off and
shot his wife in her abdomen. Respondent stated that he never
intended to har her and he was unware tht the rifle tht was in
his closet was loaded.
Respondent acknowledged that the statement provided by
his wife to the police shortly after the shooting occurred was
different from his statement that the shooting was a accident.
He believes that his wife's statements at that time were made
while she was uder the influence of the medications she had been
given. Respondent's wife has sumitted a letter on Respondent s
behalf for these proceedings in which she stated tht the 2007
conviction was an accident = Respondent was originally charged
with attempted first degree murder and aggravated assault domestic
violece. He pled guilty to an amended count of endagerent and
was sentenced to two years in prison. During his twoyear
sentence, Respondent did not tae any rehabilitation classes,
although there may have been some domestic violence classes
offered.
Wen this Court weighs all of Respondent's positive
equities against his negative factors, this court finds that very
serious negative factors militate against the favorale exercise
of discretion o As previously noted, Respondent is removale
A 21 179 705 13 April 8, 2010
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-
*
because he was convicted of a morally turpitudinous offense
relating to the sale of marijuana. The record further reflects
that the Respondent s conduct was highly culpale as he was awre
of the storage of drugs in his home, wherein his wife and children
resided within close proximity. Instead of immediately
terinating the storage of the drugs in his home, Respondent
accepted $500 from his friend who was storing the drgs at his
home, in hopes that Respondent would no longer disapprove of his
actions. Respondent did not ask the friend to leave his premises
with the controlled sustaceg but accepted the payent ad
allowed the friend to remain in the home with the drugs. A total
of approximately 221.3 pounds of marijuana was found stored in the
front room of Respondent's garage. Respondent pled guilty to
facilitation, which in essence means he pled to acting with
knowledge that another person was committing or intended to comit
an offense ad that he knowingly provided the other person with
means or opportunity for the commission of the offenseg to wit
ulawful possession of mrijuana for sale. A the Attorney
General has repeatedly emphasizedg there are few crimes more
exploitative than drug trafficking ad fewer yet that are less
conducive to the good order and happiness of the Aerica
Y-
L
conuity. See Matter of , 23 J Dec. 270, < to 276 (AG
2002). Tus, a alie who has kowingly provided another person
with means or opportuity to possess marijuana for sale, with
knowledge that the person was comitting or intended to commit
21 179 705 14 April 8, 2010
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such a offense faces a difficult task of demonstratit he
{(v
merits discretionary relief. See Matter of r zn, z1 I& Dec. 38
(BIA 1995). Indeed, uder the circumstances of this case, this
Court concludes that the Respondent's crime is so serious that it
=y be overcome by evidence of truly compelling counter
'
1
/; _
eqities.
Respondent has adduced sustatial eqities as outlined
aove and they are not disputed. His application for relief is
supported by letters from friends and family memers, attesting to
his good character and exressing the wish that he be peritted to
remain in the United States. In addition, the Respondent also has
presented the testimony of his father and his sister. The Court
at this time makes a exress finding of credibility as it relates
to the testimony provided by the Respondet a is family
( .
memers. The Court does not e - -
Coubt the
overall veracity of the testimonies presented ad finds all
testimonies presented during these removal proceedings to have
been credible.
Respondent's application also reveals that he does
not ow sustantial property in the United States ad has not
sered in the Aed Forces or otherwise contributed to his
comuity in ay meaingful way.
Te hardship that Respondent's fami1y would suffer,
specifically his father, wife and children, are in the for of
emotionl and finncial hardship. As to the emotional hardship,
it is uderstandable that due to the close bond between the
A .1 179 705 15 April 8, 2010
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Respondent and his father, that his father would suffer

emotionally if they were to be separated ad Respondent were to be
removed.
T testimony of the Respondent ' s father evidenced his
desire for Respondent to remain in the United States.
A similar
emotional bond is obvious between the Respondent, his wife, ad
children.
In assessing the potential hardship that might arise by
virtue of the Respondent ' s removal, this Court can ot discount
that Respondent allowed someone to store hudreds of pouds of
marijuaa in his home, within close proximity to his wife and
children. Such poor judgment on the Respondent's part is further
exacerbated by the fact that he kept a loaded rifle in his closet,
again within close proximity to his wife and children, that he
c
claims he was unaware was loaded. The court does not find that
the emotionl hardship that the family would sufer is outside of
the nors of the hardship ordinarily associated with a depature
from the Uniteq states under these circumstances. Regarding the
finncial hardahip1 Respondent's wife is gainfully employed on a
full-time basis, and during Respondent's absence from the home,
has been able to provide for the home. There is also no
indication that Respondent ' s father is solely dependent upon the
Respondent for financial support.
In balacing the various factors in the Respondent's
case, this Court does tae note of Respondent's favorale
eqities, which are indeed substantialver, when this Court
weighs those eqties against the factors of record,
1 21 179 705 16 April 8, 2010
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especially his 2003 conviction for facilitating possession of

marijuaa for sale, this court finat a favorale exercise of

discretion is not warrated. The

i
)licit distribution of drugs
has , ad continues, to ruin coutless lives in the Aerica
society on a daily basis. The Court does not find ay exceptional
mitigating circustances present in the Respondent ' s case for this
Court to rle otherwise. This Court sypathizes with the
Respondent ' s family memers who will undoubtedly experience
hardship in conection with his removal . However, this court must
apply the law to the facts , regardless of how sympathetic the
nature of the facts as presented are to this Court. In
consideration of its duty, this Court must conclude that a
favorable exercise of discretion would not be in the best interest
of the United States in this instance .
For the above stated reasons, voluntar departure will
also be denied in the Court ' s discretion. In sum, the Court
sustains the factual allegations ad charge of removabil) as
N

. "
- ,..
.

foud in the Notice to Appear, and denies his reqest for rel __

as a matter of
d
iscretion. The Respondent has not expressed y
."1

' -
fear of persecution or torture if removed to Mexico, .; "has:
"r.)
,~'r,
=
'] ``
failed to estalish his eligibility for ay other f o
r
"
;ef r@ief .
Accordingly, the following orders are entered .
ORER
IT IS HERBY ORDERED that the motion to terinate be
denied .
A 21 179 705 17 April 8, 2010
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. )

W
IT IS HBY ORERED that Respondent ' s application for
cancellation of removal is denied.
IT IS HEREBY ORED that volutar departure is denied.
IT IS HEREBY ORERED tht Respondent be removed from the
United States to Mexico.
RoIved&

wle

of
ROP
A 21 179 705
LINA I . SPECER-WATERS
Imigration Judge
18 April 8 , 2010
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CERTIFICTE PAGE
I hereby certify that the attached proceeding before
LIN I . SPECER-WATES, in the matter of :
MEL JESUS OLIVA-MOTA
A 21 179 705
Eloy, Aizona
ws held as herein appears , and that this is the original
trascript thereof for the file of the Eecutive Office for
Imigration Review.
khs/t
Keri Seeley, Transcriber
YORK STEOGRPHIC SERVICES, INC .
34 North George Street
York, Pennsylvaia 17401- 1266
( 717) 854 - 0077
May 17 , 2010
Completion Date
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