U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Bray, John Michael OHS/ICE Office of Chief Counsel - DAL
Oosterhof & Bray, PLLC 125 E. John Carpenter Fwy, Ste. 500
1910 Pacific Ave., Ste. 6000 Irving, TX 75062-2324
Dallas, TX 75201

Name: RUIZ REYES, VICTOR HUGO A 207-198-666

Date of this notice: 8/15/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Usertea m : Docket

For more unpublished BIA decisions, visit

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Cite as: Victor Hugo Ruiz Reyes, A207 198 666 (BIA Aug. 15, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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RUIZ REYES, VICTOR HUGO DHS/ICE Office of Chief Counsel - DAL
A207-198-666 125 E. John Carpenter Fwy, Ste. 500
C/O JOHNSON COUNTY JAIL Irving, TX 75062-2324
1800 RIDGEMAR DR
CLEBURNE, TX 76031

Name: RUIZ REYES, VICTOR HUGO A 207-198-666

Date of this notice: 8/15/2017

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 attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(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.

Sincerely,

cl
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: i_s)_::.1.

Cite as: Victor Hugo Ruiz Reyes, A207 198 666 (BIA Aug. 15, 2017)
U.S. J)epartient of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 I

File: A207 198 666 - Irving, TX Date:

AUG f 5 2017
In re: Victor Hugo RUIZ REYES

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: John M. Bray, Esquire

APPLICATION: Voluntary departure

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated March 23, 2017. The Immigration Judge found the respondent removable and
denied the respondent's request for voluntary departure under section 240B(a) of the Immigration
and Nationality Act, 8 U.S.C. 1229c(a). The appeal will be sustained.

This Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3)(i)
(2017). This Board reviews questions oflaw, discretion, and judgment, and all other issues raised
in an appeal of an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent was charged with being removable for being present in the United States
without authorization and for having been convicted of a controlled substance violation (Exh. 1 ).
The respondent conceded removability, and the Immigration Judge found the respondent
removable as charged (IJ at 2; Tr. at 2). The respondent conceded that he is statutorily ineligible
for relief from removal (IJ at 2; Tr. at 6). He asked only for pre-conclusion voluntary departure
(IJ at 3; Tr. at 6-8). The Immigration Judge denied that relief as a matter of discretion (IJ at 3; Tr.
at 8-9). On appeal, the respondent argues that he deserves a grant of voluntary departure in the
exercise of discretion.

The relief of voluntary departure requires both a showing that the respondent is statutorily
eligible and that it is merited as a matter of discretion. See Matter ofArguelles-Campos, 22 I&N
Dec. 811 (BIA 1999); Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972). Many factors must be
weighed when considering a grant of voluntary departure. Adverse factors include the nature and
underlying circumstances of the deportation ground at issue, additional violations of the
immigration laws; the existence, seriousness, and recency of any criminal record; and other
evidence ofbad character or the undesirability of the alien as a permanent resident. Positive factors
include long residence in the United States, close family ties in the United States, and humanitarian
needs. Matter ofArguelles-Campos, 22 I&N Dec. at 817.

In the present case, the respondent entered the United States in 2003, when he was 4 years old.
He is now age 18. He has a long residence (14 years) in the United States. He has family members
in the United States and has United States citizen siblings. He speaks English fluently and is

Cite as: Victor Hugo Ruiz Reyes, A207 198 666 (BIA Aug. 15, 2017)
A207 198 666

Americanized. He has a longtime girlfriend who is a United States citizen. They plan to marry.
However, because she is not yet age 18, they have not yet married. He was attending high school
and near graduation when he was arrested and detained. He had been granted Deferred Action for
Childhood Arrivals (DACA) (IJ at 3; Tr. at 6-8; Respondent's Br. at 2-3, 5).

The respondene s sole adverse factor is his 2016 conviction for possession of less than 1 gram

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of cocaine. For this offense, he was sentenced only to community supervision. He has no other
arrests or convictions. The respondent has filed a writ to vacate this conviction on constitutional
grounds. The respondent indicates that the criminal court has not yet ruled on the writ challenging
this criminal conviction. If the conviction is vacated and the respondent marries his United States
citizen girlfriend, voluntary departure will enable the respondent to legally re-enter the United
States and gain lawful status (IJ at 3; Tr. at 6-8; Respondent's Br. at 3-5).

The Department of Homeland Security (OHS) mentioned the negative factor of the recent drug
conviction to the Immigration Judge, but did not affirmativelr oppose voluntary departure (IJ at 3;
Tr. at 7).

We have reviewed the record in its entirety and have conducted a de novo determination
regarding whether the respondent merits a discretionary grant of voluntary departure. The
respondent's drug offense is a serious one. However, we also recognize that the respondent is
young and had just turned age 18 at the time of the conviction. We also consider the fact that this
minimal relief may enable him to marry his girlfriend and may afford him future legal residency
in the United States. We conclude that the respondent is statutorily eligible for voluntary departure
and does merit an exercise of discretion.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The outstanding order of removal is withdrawn and in lieu of removal,
and conditioned upon compliance with the provisions of the statute, the respondent is permitted to
voluntarily depart from the United States, without expense to the Government, within 60 days
from the date of this order, or any extension beyond that time as may be granted by the district
director. See section 240B(b) of the Immigration and Nationality Act; 8 C.F.R. 1240.26(c), (f).
In the event that the respondent fails to depart or comply with the conditions set forth below, the
respondent shall be removed as provided in the Immigration Judge's order.

FURTHER ORDER: The respondent must post a voluntary departure bond in the amount of
$500 with the district director within 10 business days of the date of this order. If the bond is not
posted within 10 business days, the order of voluntary departure is automatically vacated on the
following business day, and the respondent is ordered removed as provided by the Immigration
Judge's order.

Cite as: Victor Hugo Ruiz Reyes, A207 198 666 (BIA Aug. 15, 2017)
A207 198 666

FURTHER ORDER: The respondent must provide to the Immigration and Naturalization
Service appropriate travel documentation, sufficient to assure lawful entry into the country to
which the respondent is departing, within 30 days of this order or within any extension beyond
that time as may be granted by the district director.

NOTICE: If the respondent fails to voluntarily depart the United States within the time period

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specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty
as provided by the regulations and the statute and shall be ineligible for a period of 10 years for
any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section
240B(d) of the Act.

YvARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of
the voluntary departure period set forth above, the grant of voluntary departure is automatically
terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the
grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties
for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F .R. 1240.26( e)(1).

WARNING: If, prior to departing the United States, the respondent files any judicial challenge
to this administratively final order, such as a petition for review pursuant to section 242 of the Act,
8 U.S.C. 1252, the grant of voluntary departure is automatically terminated, and the alternate
order of removal shall immediately take effect. However, if the respondent files a petition for
review and then departs the United States within 30 days of such filing, the respondent will not be
deemed to have departed under an order of removal if the alien provides to the DHS such evidence
of his or her departure that the Immigration and Customs Enforcement Field Office Director of the
DHS may require and provides evidence DHS deems sufficient that he or she has remained outside
of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not
apply to an alien who files a petition for review, notwithstanding any period of time that he or she
remains in the United States while the petition for review is pending. See 8 C.F.R. 1240.26(i).

Cite as: Victor Hugo Ruiz Reyes, A207 198 666 (BIA Aug. 15, 2017)
 ( (
.\
UNITED STATES DEPARTME NT OF JUSTICE
EXECUTIVE OFFICE FOR I MMIGRATION REVI EW
UNITED STATES I MMIGRATION COU RT
DALLAS, TEXAS

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File: A207-1 98-666 March 23, 201 7
Detained Alien

In the Matter of

)
VICTOR HUGO RUIZ REYES ) I N REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 21 2(a)(6)(A)(i) of the Immigration and Nationality Act (Act),

as amended, in that you are an alien present in the United States
without being admitted or paroled or who arrived in the
United States at any time or place other than designated by the
Attorney General.

Section 21 2(a ) (2)(A)(i)(I I) of the Act, as amended, in that you are

an alien who has been convicted of or who admits having
committed or who admits committing acts which constitute the
essential elements of a violation of ( or a conspiracy or attempt to
violate) any law or regulation of a state, the United States or a
foreign country relating to a controlled substance, for instance as
defined in Section 1 02 of the Controlled Substances Act and (21
U.S.C. 802).

APPLICATIONS : Request for voluntary departure.

ON BEHALF OF RESPONDENT: JOHN B RAY, Esquire

1 9 1 0 Pacific Avenue, Suite 6000
Dallas, TX 75201

ON BEHALF OF OHS: MICH ELLE ELLEN MCCOY, Esquire

Assistant Chief Counsel
Dallas, TX

1
 ( (

ORAL DECISION OF THE I MMIGRATION JUDGE

The respondent is a native and citizen of Mexico. He entered the United States
at or near McAllen, Texas, on or about October 2003. At that time, he was not admitted

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or paroled after inspection by an I mmigration officer. On November 1 7, 20 1 6, he was
convicted in the 21 9th District Cou rt Collin County in McKinney, Texas, for the offense
of possession of a controlled substance of less than one gram; to wit, cocaine, in

violation of the Texas Health and Safety Code Section 4&1 . 1 1 5(8).

Consequently, the Department of Homeland Security (hereafter referred to as the

Government) charged the respondent with removal pursuant to Section 21 2(a){6)(A)(i)

of the Act, as amended , in that he is an alien present in the United States without being
ad mitted or paroled , or who arrived in the United States at any time or place other than

designated by the Attorney General . Under Section 2 1 2(a)(2)(A)(i)(I I) of the Act, as

amended , in that he is an alien who has been convicted of or who admits having
committed or who admits committing acts which constituted the essential elements of a
violation of ( or a conspiracy or attempt to violate) any law or regulation of a state, the

United States or a foreign country relating to a controlled substance (as defined in

Section 1 02 of the Controlled Substance Act and (21 U.S.C. 802)). See Exhibit 1 .
On February 1 6, 201 7, the respondent, via counsel, admitted to the factual

allegations contained in the Notice to Appear and conceded to both charges of removal.

Therefore, removal was established . In the case removal became necessary, the

respondent designated Mexico . The respondent requested a continuance for attorney

preparation for relief before the Court.

On today's date, the respondent's counsel indicated that he was not eligible for
any relief before the Court except for voluntary departure . The respondent's counsel

indicated that he had recently filed a motion to collaterally attack his conviction for

A207-1 98-666 2 March 23, 201 7

 ( (

possession of cocaine. The respondent's counsel argued to the Court that the

respondent should be granted voluntary departure. He had been granted Deferred

Action for Early Childhood Arrivals but that application had been rescinded or revoked

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because of his conviction for possession of cocaine. The respondent's counsel also

indicated the respondent entered the United States in approximately 2003 and that he is
presently approximately 1 8 years of age. The respondent's counsel also indicated that

the respondent is engaged to a U nited States citizen and plans to marry her when she

reaches the appropriate age.

. The Government indicated they had concerns about the respondent's request for

voluntary departure in light of his conviction for possession of cocaine; however, they

deferred to the ruling of the Court.

After balancing positive and negative factors, the Court finds that the negative
factors warrant the Court denying the respondent's request for voluntary departure as a
matter of discretion. The Court finds the respondent's positive factors are when he

came to the United States in 2003 and the Court will accept the respondent's

representation that he is engaged to a United States citizen and plans to marry her and

hopefully return to the United States legally. However, the Court finds the respondent's

recent conviction for possession of cocaine outweighs those positive factors. The

respondent was granted Deferred Action for Early Childhood Arrivals, a privilege and

not a right .that he was entitled to. All he needed to do was obey all the laws of this

country and stay out of trouble, but he failed to do so. This led to his conviction for
possession of cocaine in November 201 6. Based upon him having the privilege of
being granted Deferred Action and losing that privilege because of his recent conviction
for possession of cocaine in 201 6, the Court finds the negative factors outweigh the

A207-1 98-666 3 . March 23, 201 7

 ( [
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positive factors and the Court d enies the request for voluntary departure as a matter of
discretion and order him then deport the United States to Mexico.

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Date: March 23, 20 1 7
DE ITR ICH H . S I MS
United States Imm igration Jud ge
Da llas , Texas

A207-1 98-666 4 March 23, 201 7