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Lujan, Melissa R., Esq. Michael Brooks-Jimenez, P.C. 5708 S. Western Avenue Oklahoma City, OK 73109
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals Office of the Clerk
5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530
OHS/ICE Office of Chief Counsel - OKC 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800
Name: HERNANDEZ-HERNANDEZ, ELE ... A 07 4-571-777
Date of this notice: 3/31/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members: Guendelsberger, John Grant, Edward R. Hoffman, Sharon
Sincerely,
DorutL c l1AA)
Donna Carr Chief Clerk
yungc Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
U.S. Department of Justice Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A074 571 777 - Dallas, TX
In re: ELENA HERNANDEZ-HERNANDEZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Melissa R. Lujan, Esquire
ON BEHALF OF DHS: Michelle Allen-McCoy Assistant Chief Counsel
APPLICATION: Adjustment of status
MAR 31 2014
The respondent, a native and citizen of Mexico, has filed an appeal from the Immigration Judge's decision dated February 23, 2012, denying her application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), in the exercise of discretion. We will remand the case to the Immigration Judge for further proceedings.
The respondent argues on appeal that the Immigration Judge's discretionary denial of her application to adjust status was erroneous and an abuse of discretion and should be reversed. Specifically, the respondent argues that the Immigration Judge erred in (1) denying her application pursuant to Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), on the basis of her purported failure to comply with the Court's instructions, and in (2) not weighing her positive equities present in her case against her negative factors, as set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Respondent's Appeal Brief at 4-7.
The respondent asserts that the facts in her case differ from those in Matter of Almanza, supra, in that, in that case, the alien did not submit the documentation that was specifically requested of him and gave no reason for failing to do so. Here, the respondent argues that she did take substantial steps to comply with the specific instructions the Immigration Judge gave her on November 19, 2010, including hiring a tax preparer on December 21, 2010, to prepare her income tax returns, obtaining a tax ID number, paying a portion of a bill she received from the Internal Revenue Service (IRS) in February 2010, and bringing to court documents evidencing the actions she took to comply with the Immigration Judge's instructions. The respondent maintains that the Immigration Judge's refusal to accept the docwnents she brought to court on April 21, 2011 {Tr. at 53), and consider her reasons for not having fully complied with the instructions he gave her was not reasonable. The respondent further argues that the Immigration Judge did not weigh her key negative factor of not having filed taxes in the United States against her many positive equities, which include her 20-plus years living in the United States with a similarly long history of stable employment, her having two United States citizen children, and her lack of a criminal history. According to the respondent, had the Immigration Judge weighed all the positive and negative factors in her case, he would have found that the positive factors prevailed in her favor. Id.
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
' )
A074 571 777
We agree with the Immigration Judge that the respondent did not show full compliance with his instructions despite the five-month continuance he granted her on November 19, 2010. Specifically, the respondent did not bring to court on April 21, 2011, evidence that she had either paid all her delinquent taxes or established a payment plan with the IRS and complete the first two payments. Nor did she bring evidence that she filed her 2005 income tax return (I.J. at 8-13; Tr. at 44-47, 50-53). However, we agree with the respondent that the facts in her case differ somewhat from those in Matter of Almanza, supra, so that it would have been reasonable for the Immigration Judge to at least accept the evidence she brought to court on April 21, 2011, and proceed with the adjudication of her application for adjustment of status. We also agree with the respondent that the Immigration Judge's decision should have included an analysis of the positive and negative equities in the respondent's case. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). As such, we will remand the case for the Immigration Judge to give both parties another opportunity to submit additional evidence pertinent to the issue of the respondent's eligibility for adjustment of status as a matter of discretion and thereafter issue a new decision that includes an analysis of the positive and negative equities in the respondent's case. However, we express no opinion regarding the ultimate outcome of these removal proceedings at the present time. See Matter of L-0-G-, 21 I&N Dec. 413 (BIA 1996). Accordingly, the following order shall be entered.
ORDER: The case is remanded to the with the foregoing opinion.
igration Judge for further proceedings consistent
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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)
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··'\MICHAEL BROOKS-JIMENEZ I PC LUJAN, MELISSA R. 5708 S. WESTERN AVE. OKLAHOMA CITY, OK 73109
IN THE MATTER OF HERNANDEZ-HERNANDEZ, ELENA
1100 COMMERCE ST., ROOM 404 DALLAS, TX 75242
FILE A 074-571-777
UNABLE TO FORWARD - NO ADDRESS PROVIDED
DATE: Feb 23, 2012
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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 APPiAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c} {3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) {3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6) I
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:
IMMIGRAT�ON' COURT 1100 COMMERCE ST., ROOM 404 DALLAS, TX 75242
X OTHER: WRITTEN DECISION OF THE IMMIGRATION JUDGE
CC: ALLEN-MCCOY, MICHELLE 125 E. HWY 114, STE 500 IRVING, TX, 75062
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COURT CLERK IMMIGRATION COURT
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UNITED STATES DEPARTMENT OF JUSTICE _ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT DALLAS, TEXAS
IN THE MATTER OF: ) )
HERNANDEZ-HERNANDEZ,ELENA ) ) ) )
RE SPONDENT )
IN REMOVAL PRO CEEDING S
A 074-571-777
CHARGES: Section 212(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, who arrived in the United States at any time or place other than as designated by the Attorney General
APPLICATION(S): Adjustment of Status under Section 245(i) of the Act
ON BEHALF OF THE RESPONDENT:
Melissa Lujan, Esq. Michael Brooks-Jimenez, P C 5708 S. Western Ave. Oklahoma City, OK 73109
ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:
Michelle Allen-Mc Coy, Esq. Assistant Chief Counsel - I CE 125 E. John Carpenter Fwy., Ste. 500 Irving, TX 75062-2324
ORDER OF THE COURT
The Respondent is seeking adjustment of status for the above-captioned case. For
the following reasons, the Respondent's application for adjustment of status will be
DENIED.
WRITTEN DECISION OF THE IMMIGRATION JUDGE
FACTUAL AND PROCEDURAL HISTORY
The Respondent is a female, native and citizen of Mexico. Exhibit 1. She entered
the United States at or near Eagle Pass, Texas on or about July 16, 1999. Id. She was not
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then admitted or paroled by an Immigration Officer. Id . • - ' \ : • • • 'f ?. � • - •
On September 16, 2009 the Respondent was personally served with a Notice to
Appear (NTA), charging her with removability under Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act (the Act). Id.
At a hearing on February 2, 2010, the Respondent, through counsel, admitted
factual allegations 1-4, and conceded the charge of removability contained in the NTA.
Thus, the Court concluded that the charge of removability had been established by clear
and convincing evidence, and that the Respondent was removable as charged. The
Respondent designated Mexico as the country of removal.
At a hearing on July 2 7, 2010 the Respondent, through counsel, indicated her
intention to seek adjustment of status under Section 245(i) of the Act based on her
previously approved 1-130 petition. See Exhibit 3.
On September 10, 2010 the Respondent submitted her Application to Register
Permanent Residence or Adjust Status (Form 1-485). Exhibit 4.
On November 19, 2010 the Court conducted a hearing on the merits of the
Respondent's application for adjustment of status. During the hearing, summarized infra,
the Respondent testified that she failed to file income taxes during her time living and
working in the United States. Following the Respondent's testimony, the Court offered
the Respondent a continuance so that she could rectify her failure to pay income taxes.
Specifically, the Court directed the Respondent to provide proof at her next hearing that
she has filed her 2005, 2006, 2007, 2008, and 2009 income tax returns and that she has
either paid all of the taxes owed or has signed, filed, and agreed to a payment schedule
with the Internal Revenue Service (IR S) and made the first two payments. The Court
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also made clear to the Respondent that if she did not comply with the Court's instructions
the Court would deny her application for adjustment of status as a matter of discretion.
Both the Respondent and Respondent's counsel stated that they understood the
instructions.
At a hearing on April 21, 2011 the Respondent appeared before the Court, with
counsel, without having paid the taxes owed or having agreed to a payment plan with the
IRS for the years specified by the Court. 1 The Respondent also admitted, through
counsel, that she failed to file her 2005 tax returns as the Court had directed. The Court
found that the Respondent failed to comply with the Court's instructions, and therefore
her application for adjustment of status would be denied as a matter of discretion.
A. Documentary Evidence
EVIDENCE
The following documents are in the record of proceedings:
Exhibit 1: · Notice to Appear Exhibit 2. Record of Deportable/Inadmissible Alien (Form I-213) Exhibit 3: 1-130 Approval Notice (Form 1-797) Exhibit 4: Respondent's Application for Adjustment of Status (Form 1-485) Exhibit 5: Supporting Documents for Respondent's 1-485 Application
B. Testimonial Evidence
Direct Examination
The Respondent currently resides in Hinton, Oklahoma, and has lived there for
about twenty years. She has four children, one of whom-her fourteen year old
daughter-still lives at home. Two of the Respondent' s children are United States
citizens, and her other children are currently in the United States without authorization.
1 Although the Respondent stated that she had filed her 2006-2009 tax returns, she admitted that she had not agreed to a payment plan with the IRS and had not made the first two payments.
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The Respondent has been separated from the father of her children for 11 years
and is not currently married. The Respondent considers herself a single mother and the
father does not help with the children.
The Respondent currently works as a cook at a restaurant. She has worked at the
same restaurant for about 15 years, and has always been paid in cash. The Respondent
has never filed an income tax return in the United States.
The Respondent's 30-year old son assisted her in applying for her green card.
Her son has lived in Hinton, Oklahoma his whole life.
The Respondent stated that she has previously had problems with her immigration
status. One day the Respondent was in a car with her two daughters and her sister on the
way to the city when they were stopped by authorities. They were then brought to the
immigration office. When they arrived at the immigration office they were arr�sted. The
Respondent's husband at that time, who was a legal resident in the United States, arrived
at the immigration office and picked everyone up. The husband the Respondent was
referring to was the father of three youngest children; her oldest child has a different
father.
The Respondent then had to go before an immigration judge, who granted the
Respondent voluntary departure. The Respondent then left the United States and went to
Mexico with her then husband and two daughters that were born in Mexico. When the
Respondent arrived in Mexico she lived at her sister's house for about two years.
The Respondent's children went to school in Mexico and did well. The
Respondent then came back to the United States illegally because it was too expensive to
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live in Mexico. The father of her children helped her by giving her about $100. When
the Respondent came to the United States the second time she lived with her sister.
The Respondent has two siblings living in the United States, both of whom have
legal documentation. Her United States citizen son is employed at an oil company.
Cross-Examination
When asked whether the Respondent was aware that she was required to file taxes
in the United States the Respondent stated "Yes. " The Respondent stated that if the judge
grants her petition she would pay her taxes. When asked why she didn't pay her taxes in
the past, the Respondent stated that she "didn't know" and that her employer only paid
her in cash. When asked whether she did not know that she was supposed to pay taxes
even though she lived in Oklahoma for 20 years, the Respondent stated "No. " When
asked when she learned that she was supposed to pay income taxes the Respondent stated
that she did not know, but it was maybe two years ago.
When asked why she did not pay her taxes for the last two years even though she
was aware of this obligation the Respondent stated that she did not know. When asked
why the Court should believe her, the Respondent stated that she believes she can pay her
taxes.
When asked whether, at the time she was granted voluntary departure, she was
told that she was not supposed to enter the U. S. without lawful status, the Respondent
stated "Yes, they did tell me." When asked whether she had lawful status when she
returned to the United States the second time, the Respondent stated "No." When asked
why she ignored that requirement the Respondent stated that it is hard to live in Mexico
and that everything is so expensive. When asked whether she thought the law did not
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apply to her because it was expensive in Mexico the Respondent stated "Yes." When
asked whether she thought the federal tax laws apply to her the Respondent stated that "I
believe so, yes."
Redirect Examination
The Respondent stated that she only went to school in Mexico until the third
grade and has never had any education in the United States. When asked whether she
wanted to go back to Mexico the Respondent stated that she did not, but that her husband
told her that they had to go back to Mexico. Her siblings, however, were concerned
about her going back to Mexico.
The Respondent stated that she did not know how to get an identification number
so that she could file her taxes. The Respondent stated that her daughter helped her
obtain an attorney for these proceedings and that her daughter and brother helped her get
her paperwork together. The Respondent stated that her oldest son helps her with the
daughter who lives at home with her. When asked whether her family helps her make a
lot of her decisions the Respondent stated "Yes."
When asked whether she was nervous in court the Respondent stated "more or
less." The Respondent stated that she understood all of the questions being asked of her
and that she believed she was being honest to the court.
Recross-Examination
When asked whether the Respondent was brought to the United States against her
will, the Respondent stated "No, I also wanted to come." When asked whether she
understood it is her responsibility to file income taxes and not somebody else's the
Respondent stated "Yes."
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Questions by the Immigration Judge
When asked whether the Respondent has ever been convicted of a crime, she
stated "No." When asked whether she has ever been arrested aside from being detained
by the immigration authorities the Respondent stated "No. " When asked how old her
four children are the Respondent stated her children were 14, 24, 26, and 30. The
Respondent stated that her 30-year old son assisted her in filing the application presently
before the Court.
CREDIBILITY DETERMINATION
The Respondent's application for adjustment of status was made after May 11,
2005, the effective date of the REAL ID Act. Therefore, her application is subject to the
credibility and corroboration standards contained at INA§ 240(c)(4). Under INA§
240(c)(4)(C), a credibility determination by an Immigration Judge concerning an
application for relief from removal is based on the following criteria:
[c]onsidering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. INA§ 240(c)(4)(C).
Here, although the Court has concerns regarding the Respondent's failure to pay her
income taxes, the Court finds that under the totality of the circumstances the Respondent
testified credibly.
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LEGAL STANDARDS AND ANALYSIS
The Respondent in this case is seeking adjustment of status pursuant to
Section 245(i) of the Act. INA § 245(i) states in relevant part:
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-
(A) who-
(i) entered the United States without inspection .. .
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203( d) of this title) of-
(i) a petition for classification under section 204 [8 U. S. C. § 1154] that was filed with the Attorney General on or before April 30, 2001 . ..
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application ....
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if;
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and,
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
The alien bears the burden of establishing eligibility for adjustment of status. See
INA§ 240(c)(4)(a)(i).2 If eligibility is established, adjustment of status may be granted
in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien
2 As noted above, the Respondent's application for adjustment of status was made after May 11, 2005, the effective date of the REAL ID Act. Therefore, her application is subject to the standards contained in INA § 240(c)(4).
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applying for relief bears the burden of demonstrating that relief is merit�d in the exercise
of discretion. See INA§ 240(c)(4)(a)(ii); See als o Matter of Ibrahim, 18 I&N Dec. 55
(BIA 1981); Matter of Cavaz os, 17 I&N Dec. 215 (BIA 1980); Matter of Blas, 15 I&N
Dec. 626 (BIA 1974, A.G. 1976). The Court's discretionary decision depends on the
facts of the particular case and, as such, is "a matter of discretion and of administrative
grace, not mere eligibility; discretion must be exercised ... even though the statutory
prerequisites have been met." Matter of Ortiz-Priet o, I 1 I&N Dec. 317, 319 (BIA I 965);
see als o Matter of Blas, 15 l&N Dec. at 628. A favorable exercise of administrative
discretion is warranted where positive factors, such as family ties, length of residency,
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and hardship, outweigh adverse considerations. Matter of Arai, 13 l&N Dec. at 496.
However, where adverse factors are present, it may be necessary for the applicant to
present unusual or outstanding countervailing equities to merit a grant of an application
for adjustment of status. Id.
Here, there is no dispute that the Respondent has met the basic requirements for
eligibility for adjustment of status under INA § 245(i): The Respondent admitted that she
was not inspected or paroled by an Immigration Officer when she entered the United
States; an I-130 petition was filed on her behalf prior to April 30, 2001; she paid the
required fee; the Respondent is eligible to receive an immigrant visa and is admissible for
permanent residence; and a visa is immediately available to her based on her previously
approved 1-130. See Exhibit 1; Exhibit 3; Exhibit 5, Tab C. Therefore, the minimum
requirements provided in INA § 245(i) have been satisfied.
However, as noted above, the Respondent also bears the burden of establishing
that she merits a favorable exercise of discretion. The Court finds, for the following
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reasons, that the Respondent has not met this burden, and therefore the Court will deny
the Respondent's application as a matter of discretion.
Here, the Court's primary discretionary concern was the Respondent's failure to
file income taxes despite working in the United States for almost 15 years. The
Respondent stated during testimony that she has worked in the same restaurant for almost
15 years and admitted that she did not file income taxes during that entire period. The
Respondent's only explanation for her failure to file her income taxes was that she "did
not know" that she had to. The Court finds this explanation to be unsatisfactory.
Furthermore, the Respondent admitted during testimony that "maybe two years ago" she
did learn that she was indeed required to pay income taxes. Despite this knowledge,
however, the Respondent also failed to file her income taxes for the past two years.
Given the length of time the Respondent failed to file income taxes, and that she still
failed to file even after admitting she was aware that she was required to, the Court
considered this issue to be a significant negative discretionary factor.
Despite its concerns, the Court wished to afford the Respondent every opportunity
to rectify this negative discretionary factor, and thereby meet her burden of proof to show
that she merited a favorable exercise of discretion. Thus, under Matter of Almanza
Arenas, the Court directed the Respondent to provide proof at her next hearing that she
had filed her 2005, 2006, 2007, 2008, and 2009 income tax returns and that she has either
paid all of the taxes owed or has signed, filed, and agreed to a payment schedule with the
Internal Revenue Service (IRS) and made the first two payments. In Matter of A/manza
Arenas, the Board of Immigration Appeals (BIA) upheld an Immigration Judge's
determination that a respondent failed to meet his burden of proof when he did not
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provide additional documents requested by the court and gave no reason for failing to do
so. 24 I&N Dec. 771, 775-76 (BIA 2009). In that case, the BIA also noted that "by
specifying on the record the documents that he expected the respondent to produce and
granting the respondent, who was represented by counsel, a continuance to obtain the
documents, the Immigration Judge followed a procedure that we find appropriate and
would encourage." Id. at 777, n. 4.
Here, in an effort to provide the Respondent with ample time to provide the
requested documents, the Court gave the Respondent a continuance of nearly five
months. The Court also made it clear to the Respondent that if she failed to comply with
the Court's instructions the Court would deny 4er application for adjustment of status as a
matter of discretion. The Court took pains to ensure that both the Respondent and her
attorney understood precisely what the Court expected the Respondent to provide at the
next hearing. However, as noted above, the Respondent appeared at her April 21, 2011
without having complied with the Court's instructions to either pay all of her delinquent
truces or agree to a payment plan with the IR S and complete the first two payments. 3 In
addition to failing to comply with the Court's instructions to agree to a payment plan, the
Respondent also admitted that she failed to file her 2005 tax returns at all. The
Respondent provided no explanation as to why she failed to comply with the Court's
instructions. Thus, under Matter of Almanza-Arenas, the Court finds that the Respondent
has failed to satisfy her burden of proof to show that her relief is merited in the exercise
3 Although the Respondent stated that she fiJed her 2006-2009 tax returns, the Court made clear to the Respondent at her previous hearing that this would not be enough. The Court specifically instructed the Respondent to appear at her April 21, 2011 hearing having either paid all of the taxes she owed between 2005 and 2009 or having agreed to a payment plan with the IRS and made the first two payments. Thus, as the Respondent was instructed, the simple filing of her 2006-2009 tax returns was insufficient to comply with Matter of Almanza-Arenas.
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of discretion as required under INA§ 240(c)(4)(a)(ii). See als o Matter of Ibrahim, 18
I&N Dec. 55 (BIA 1981); Matter of Cavaz os, 17 I&N Dec. 215 (BIA 1980).
In addition to her failure to meet her burden to show that she merits a favorable
exercise of discretion, the Court also notes that the Respondent has failed to comply with
26 U.S.C. § 6039E of the Internal Revenue Code. That provision requires that,
notwithstanding any other provision of law, any individual who applies for lawful
permanent residence in the United States must include with any such application a
statement that provides "information with respect to whether such individual is required
to file a return of the tax imposed by chapter 14 for such individual's most recent 3
taxable years." 26 U.S.C. § 6039E(a)-(b)(3). Thus, under the statute above, the
Respondent was required to provide a statement as to whether she had to file income tax
returns for the three taxable years preceding her application. Here, the Respondent filed
her application to register permanent residence or adjust status (I-485) on September 10,
2010. The Respondent was therefore required to provide a statement providing
information with respect to whether she was required to file income tax returns between
2008 and 2010. However, when the Respondent applied for adjustment of status on
September 10, 2010, she only provided information with respect to her taxable income
for 2009, meaning she was not in compliance with the statute as she did not provide
information related to 2008 and 20 I 0. Although not dispositive, the Respondent's failure
to comply with 26 U.S.C. § 6039E is an additional negative discretionary factor, which,
given the Respondent's failure to produce the documents requested of her, she failed to
address to the Court's satisfaction.
4 The "tax imposed" by chapter I includes, among other things, the income tax owed for married and unmarried individuals at various income levels. See 26 U.S.C. § l(a)-(d).
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For the reasons stated above, the Court will deny the Respondent's application for
adjustment of status as a matter of discretion.
CONCLUSION
Accordingly, the following Orders will be entered:
ORDERS
IT IS HEREBY ORDERED that the Respondent's application for adjustment of
status pursuant to Section 245(i) of the Immigration and Nationality Act be DENIED.
IT IS FURTHER ORDERED that the Respondent by REMOVED to
MEXICO on the charges contained in the Notice to Appear.
This d..J day of February, 2012
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Immigration Judge
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