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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
Cite as: Fernando Linares-Isidoro, A095 729 470 (BIA Nov. 30, 2012)
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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.
Cite as: Fernando Linares-Isidoro, A095 729 470 (BIA Nov. 30, 2012)
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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.
2
Cite as: Fernando Linares-Isidoro, A095 729 470 (BIA Nov. 30, 2012)
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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.

FOR THE BOARD
3
Cite as: Fernando Linares-Isidoro, A095 729 470 (BIA Nov. 30, 2012)
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. 1
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 ORFEE 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.
2
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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.
3
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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.
4
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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 twenty-
one. 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
11
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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.ttERSONAL SEtmCE (PI
TO: [ l ALIEN ff A\IEJt tJo Custodial Olflcer
DATE:

ATTm'Y: t'V-n()CA.._
':tachmen!s: [ ] EOIR-33 [ l
' ' ' 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
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 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
1
In 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
~ ~
3
David C. Anderson
Immigration Judge