U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Qffice ofthe Clerk
5/07 Leesburg Pike. Suile 2000
Falls Church. Virginia 20530

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: AGUINAGA MELENDEZ, DAVID

A 200-759-135
Date of this notice: 5/19/2015

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

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Adkins-Blanch, Charles K.
Grant, Edward R.

Userteam: Docket

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Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

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LEE, MARK
JAIME BARRON, P C
12240 INWOOD ROAD, SUITE 300
DALLAS, TX 75244

U.S. Dpartment of Justice

Execu\ive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A200 759 135 - Dallas, TX

Date:

MAY 192Dl5

In re: DAVID AGUINAGA-MELENDEZ

APPEAL
ON BEHALF OF RESPONDENT: Mark Lee, Esquire
ON BEHALF OF DHS:

Danial Gividen
Assistant Chief Counsel

APPLICATION: Adjustment of status under section 245(i)

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated September 12, 2013, denying his application for adjustment of status pursuant to
section 245(a)(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(a)(i). The appeal will
be sustained.
The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding pure questions of law and the application of a particular standard of law to
those facts. 8 C.F.R. 1003.l(d)(3)(i), (ii). Because the respondent's application for relief
from removal was filed after May 11, 2005, it is subject to the REAL ID Act of 2005. See
Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006).
The respondent is eligible for adjustment of status in the exercise of discretion. See Matter of
Arai, 13 I&N Dec. 494 (BIA 1970) (setting forth the relevant factors). See also Matter of Blas,
15 I&N Dec. 626 (BIA 1974). The respondent has several favorable factors which include
residence in the United States since 1996 and a United States citizen son and citizen sisters (I.J.
at 13). In addition, the respondent has attended church, and he apparently has a good
relationship with his family (I.J. at 13). We acknowledge that the respondent was arrested in
1997 for attempted murder, and in 2010, for assault and interfering with an emergency telephone
call. He also did not include his 1997 arrest for attempted murder in his adjustment of status
application (Form 1-485). However, the 1997 arrest was distant and there is no indication that
the respondent was culpable for the alleged crime. In addition, the respondent testified that he
and his wife divorced in 2010, yet filed a tax return in 2011 reporting his filing status as married
(I.J. at 3-4; Tr. at 63; Exh. 6R). Nonetheless, there is no evidence that the respondent received
any benefit from this misreport. In light of the foregoing, the respondent has established, in the
exercise of discretion, his eligibility for adjustment of status. We further do not find the
Immigration Judge's other reasons to be a sufficient basis to deny the application.

Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

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IN REMOVAL PROCEEDINGS

,I

A200 759135

Accordingly, the following order will be entered.

ORDER: The appeal is sustained.

Cite as: David Aguinaga-Melendez, A200 759 135 (BIA May 19, 2015)

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FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l(d)(6), the record is remanded to the

Immigration Judge for the purpose of allowing the Department of Homeland Security the
opportunity to complete or update identity, law enforcement, or security investigations or
examinations, and further proceedings, if necessary, and for the entry of an order as provided by
8 C.F.R. 1003.47(h).

._,

September 12, 2013

File: A200-759-135
In the Matter of
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)
)
)

DAVID AGUINAGA MELENDEZ

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act)

as amended, and 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 as designated by the
Attorney General.

APPLICATIONS:

Request for adjustment of status pursuant to Section 245(i) of the

Immigration and Nationality Act as amended.

ON BEHALF OF RESPONDENT: MARK LEE

12240 Inwood Road, Suite 300
Dallas, Texas 75244
ON BEHALF OF OHS: HEIDI J. GRAHAM
Dallas, Texas
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Mexico. He entered the United
States at or near Del Rio, Texas on or about an unknown date. He was not then
admitted or paroled after inspection by an Immigration officer. Consequently, the
Department the of Homeland Security (herein after referred to as the Government)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS.TEXAS

charged the respondent with removability pursuant to Section 212(a)(6)(A)(i) of the

Immigration and Nationality Act (Act), as amended, and that he is an alien present in the
United States without being admitted or paroled, or who arrived in the United States at

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any time or place other than designated by the Attorney General. Exhibit 1.
At a master calendar proceeding, the respondent admitted to the factual

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

designated Mexico.
SUMMARY OF TESTIMONY
The respondent testified that he first entered the United States in 1982
without a visa. Respondent claimed that he left the same day when he was voluntarily
returned in 1982.
Respondent's second date of entry was in 1994 with a visa. He left the
U.S. in 1996.
Respondent indicated that he returned to the United States a third time in
1996 illegally.
Respondent indicated that the petitioner who has petitioned him to
immigrate to the United States is his sister who is a United States citizen.
The respondent testified about his criminal history. Respondent testified
that in March 9, 2010, there was an incident at his home where he was charged with
interfering with an emergency call. He indicated that the charges were dismissed.
The respondent indicated that he was arrested in 1997 because of an
argument with his wife. Respondent claimed that he was released the next day.
Respondent was asked why he did not mention this arrest in 1997 on his application for
adjustment of status. Respondent indicated that it was a false statement related to why
he was arrested.
On cross-examination, respondent testified that his last date of entry was
in 1996, but he does not remember the month. He indicated that he was caught in 1996
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allegations contained in the Notice to Appear, and conceded to the charge of removal.

by the Border Patrol. Respondent indicated that he had been apprehended by the
Border Patrol three or four times, and had been returned to Mexico on each occasion.

they were divorced in July of 2010. He indicated that he married Patricia in 1984 in
Mexico.
The Assistant Chief Counsel further questioned the respondent about his
criminal history. Respondent indicated that he had been arrested three times in the
United States. He had been arrested once for speeding ticket violations.
He also testified that in 2010, he was arrested because of a dispute with
his wife.
Respondent also testified that he was arrested in 1997 when he was
charged with attempted murder. The respondent claimed that these charges were
dismissed. The respondent claimed that the charge of attempted murder is what he
was told by the police for what he was arrested for. He indicated that he was not
arrested for murder, but was arrested for attempted murder.
Respondent further provided testimony about his 2010 arrest. He
indicated that he had been arrested for causing bodily injury on a family member, and
interference with an emergency call. Respondent described the circumstances
surrounding this arrest. Respondent claimed that he physically touched his wife. He
pushed his wife in the chest when his wife grabbed him. He indicated that his wife did
not fall when he pushed her. He further testified that he never hit his wife. Respondent
testified that his wife did file for divorce because of the problems that they were having.
Respondent reiterated that in July 2010, he was divorced from his wife
Patricia.
Respondent was asked about his 2011 federal tax returns which claimed

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The respondent testified that he was married to a Patricia Carillo, and that

__.,,,

that he was married, even though he had indicated that he was divorced from her in
July of 2010. Respondent indicated that the reason he claimed he was married on his

continues to live with him.

On redirect examination, the respondent was asked about his marital
status. Respondent testified that today, he considers living together with his wife that
they are husband and wife as it relates to Patricia. He considers himself married to
Patricia. He further testified that Patricia feels the same way, that she is married to the
respondent.
Rosa Olivares testified. She is a United States citizen, and is the
respondent's sister. She testified that the respondent is a responsible individual, and
very close to his family. She testified that Sonia has three children.
Martha Juajardo also testified. She is also the respondent's sister. She
testified the respondent is a calm man, and a good brother, and a good son, and a good
father. She indicated that her husband is disabled. On cross-examination, Martha
testified that Sonia, the respondent's previous wife, told her that she was not happy in
the relationship with the respondent.
The following documents are in the record of proceedings.
See Exhibit 1 the Notice to Appear.
Exhibit 2, a document from the U.S. and Immigration Service related to the
approval of the 1-130 petition on behalf of the respondent.
Exhibit 3, the respondent's Form 1-485 application to register for
permanent residence or adjustment of status.
Exhibit 4, respondent's submission of 1-485 application for adjustment of
status and supporting documents.
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2011 tax returns is because they're still living together. He testified that his wife still

Exhibit 5, the respondent's supplemental documents in support of the 1485 application for adjustment of status and witness list.

485 application for adjustment of status and updated witness list.

Exhibit 7, the respondent's motion to admit supplementary documents in
support of the application for adjustment of status beyond time established by EOIR
Practice Manual.
All of these documents have been considered by the Court, even if not
specifically mentioned.
STATEMENT OF THE LAW
Section 245(i) provides at the time of these proceedings that an alien
physically present in the United States who entered the United States without inspection
may, in the discretion of the Attorney General and upon payment of the appropriate fee,
adjust his status to that of a lawful permanent resident. See Section 245(i)(1). In order
to adjust his status, the respondent must show that he is eligible to receive an immigrant
visa, he is admissible to the United States, and an immigrant visa is immediately
available to him. See Section 245(i)(2).
In the Matter of Arai, 13 l&N Dec. 494 (BIA 1970), the Board of
Immigration Appeals (the Board) stated guidelines to be followed in the exercise of
discretion and adjustment of status cases. First, in the absence of adverse factors,
adjustment will ordinarily be granted as a matter of discretion. And second, when
adverse factors are present, it may be necessary for the applicant to establish unusual
or outstanding equities to offset these factors. Moreover, the alien bears the burden of
establishing that the adjustment of status should be granted in the exercise of
discretion, and every adjudication must be done on a case by case basis. Lastly, and
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Exhibit 6, the respondent's supplemental documents in support of the 1-

Immigration Judge must exercise discretion independently on the basis of all factual
circumstances. Matter of Blas, 15 l&N Dec. 626 (BIA 1979).

As an initial matter, the Court notes the respondent's application was filed
after May 11, 2005, the effective date of the REAL ID Act. Therefore, his application is
subject to credibility and corroboration standard contained at Section 240(c)(4) of the
Act. Under Section 240(c)(4)(C), a credibility determination by an Immigration Judge
concerning an application for relief from removal is based on the following criteria.
Considering 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 not under oath, and considering the
circumstances in which the statements were made), the internal consistency of each
such statements, 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
inaccuracy, inconsistency, 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. See Section 240(c)(4)(C) of the Act.
Where the Court makes an adverse credibility finding, the Court bases this
determination on the specific reasons for disbelieving the respondent's testimony as
supported by the record. Matter of S-A-, 22 l&N Dec. 1328 (BIA 2000). See also the
Matter of A-S-, 21 l&N Dec. 1106 (BIA 1998).

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CREDIBILITY

In the present case, the Court finds that Rosa Alvarez and Martha
Juajardo are credible witnesses. The Court finds that they testified both candidly and

However, for the reasons stated below, the Court finds that the
respondent is not a credible witness.
First, the Court's adverse credibility finding relates to the respondent's
criminal history. On the respondent's application for adjustment of status, Exhibit 3, the
respondent identified the times that he has been arrested in the United States. On this
application, the respondent claimed only two arrests. Respondent claimed on his
application that he was arrested on March 10, 2010 in Cleburne, Texas, and'charged
with assault against a family member and interference with an emergency call. He
indicates that the case was dismissed on April 20, 2010. He also claims that he was
arrested in 2003 in Cleburne, Texas for a warrant on unpaid speeding tickets. He was
released after he paid a fine. However, the respondent testified that he had been
arrested three times.
The respondent mentioned two arrests that were stated on his application
for assault against a family member, interfering with an emergency call, and speeding
tickets. However, the respondent did not state on his application that he had been
arrested for attempted murder. See Exhibit 3 and Exhibit 6. The Court notes that the
respondent signed his application for adjustment of status under penalty of perjury. His
arrest record on his application was inconsistent with his testimony regarding his arrest
for attempted murder. The respondent claimed that the charges against him were false.
That is one of the reasons he did not mention it. The Court finds this explanation
unpersuasive. The respondent's failure to state on his application that he had been
arrested for attempted murder is misleading the Court on an application where he is
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forthright.

---

seeking a benefit under the Act.

In the respondent's arrest for attempted murder in 1997, respondent

respondent is required to identify all his criminal history on his application for adjustment
of status in order for the Court to determine whether or not his application should be
granted or denied as a matter of discretion, and whether or not there are any grounds of
inadmissibility. In addition, respondent is required to produce documents relating to any
criminal history in his case, such as his arrest for attempted murder and his claim that it
was dismissed.
The next issue that relates to the respondent's credibility relates to
whether or not the respondent is single or married. The respondent testified that he
divorced Patricia Carillo in July of 2010. He testified that he married her in Mexico in
1984. On his 2011 federal income tax returns, filed with the Internal Revenue Service
and signed under penalty of perjury, respondent claimed his filing status as married.
Respondent was asked to explain the inconsistency between a statement in his
testimony that he was divorced in 2010 from Patricia and his claim on his 2011 tax
returns that he was married. Respondent claimed that he believed he is still married to
her because he is living together with her.
On redirect examination, the respondent testified that he is living with
Patricia, and they consider themselves as husband and wife. He testified that Patricia
considers the respondent to be her husband, and he considers Patricia to be his wife
because they are living together as husband and wife. The respondent's testimony at
this point, where he considers himself to be married to Patricia, and his 2011 tax returns
where he claims his filing status as married, is inconsistent with other evidence in the
record that he swore to under penalty of perjury. For example, his application for
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indicated that he did not physically harm his wife. Nonetheless, the Court believes the

adjustment of status, the Form 1-485, Exhibits 3 and 6, on page 2 of his application for
adjustment of status, the respondent claimed his marital status as divorced, not married.

respondent states none.

The Court would note that the respondent signed his application for
adjustment of status under penalty of perjury on January 28, 2011. That application for
adjustment of status that was signed on January 28, 2011 where the respondent
claimed that he is divorced and not married, and does not list a spouse, is inconsistent
with his 2011 federal tax returns where he claims that he is married. It is also
inconsistent with his testimony in March 22, 2013 before the Immigration Court where
he claimed that he is married to Patricia because they are living together, and they
consider each other as husband and wife.
The Court also notes that the respondent has filed an additional document
on the Form G-325, Exhibits 4 and 6. On the respondent's G-325, Exhibit 4, page 18,
tab E, signed on January 28, 2011, his G-325A asks the respondent to provide his
current wife's name. Here, the respondent, in the box related to current husband and
wife, states none. However, it should be noted that on the respondent's 2011 federal
tax returns, he did claim his marital status as being married.
The respondent's application for adjustment of status, Exhibit Number 6,
page 2, signed on February 26, 2012, shortly before his Immigration hearing, is also
inconsistent with his testimony. On this application, the respondent claimed his marital
status as divorced. He does not state that he is married. As previously mentioned, the
respondent testified at his hearing in March of 2013 that presently he considers Patricia
to be his wife, that he is living together as husband and wife, and both consider
themselves married to each other. The Court would also note that on his application for
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When his application for adjustment of status asked him to list his present spouse,

adjustment of status, signed under penalty of perjury, Exhibit Number 6, page 95, page
2 of the adjustment application, it asks him to list his present spouse and all of his

In other words, on his application for adjustment of status, clearly the respondent is not
married. And again, this would be inconsistent with his testimony under oath that he
considers himself to be married to Patricia.
Next, on redirect examination, the respondent was asked further questions
about his marital status. Again, as stated earlier, the respondent claimed that he is
presently married to Patricia, and they consider themselves as husband and wife
because they are living together. Yet on the respondent's 2012 federal tax returns that
he submitted to the Court, Exhibit 6, the respondent claimed his filing status as head of
household. He did not claim his filing status as either single or married, rather he
claimed it as head of household. According to the RS regulations related to head of
household, one can claim head of household if he is an unmarried individual who
provides a home for certain other persons. He is considered unmarried for this purpose
if any of the following applies. He was legally separated according to the state law
under a decree of divorce or separate maintenance at the end of 2012, but at the end of
2012, his divorce was not final, he is considered married. He is married but living apart
from his spouse for the last six months of 2012, and he meets the other rules related to
married persons who live apart later. He is married to a non-resident alien at any time
during the year, and he does not choose to treat him or her as a resident alien. In this
particular case, the respondent clearly testified, on both direct and redirect and cross
examination, that he considers himself to be presently married because he is living
together. The Court recognizes that the state of Texas recognizes common-law
relationships, so if the respondent considers himself married because he is living

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children. Nowhere in part three, question B, does the respondent indicate any spouse.

together with Patricia, then the appropriate filing status would have been married or
married filing separately, not head of household . This is inconsistent with the RS

The Court finds that the respondent has failed to provide an adequate
explanation for the inconsistencies between his testimony with the supporting
documents that he submitted on his own behalf. He also failed to rehabilitate his
credibility. Therefore, the Court makes an adverse credibility determination as to the
respondent, and it is in the Court's discretion to deny his application on that basis.
The Court would note that the respondent has not fulfilled the statutory
requirement for adjustment of status. If the alien is admissible pursuant to Section
21 2(a)(6)(C)(i), the alien must submit a Form 1-601 waiver to waive the grou nds of
inadmissibility. When an alien is not admissible to the Un ited States under Section
2 1 2 (a)(6)(C)(i). As an alien may seek a waiver of inadmissibility under Section 21 2(i) of
the Act. Under Section 21 2(i), allows an Immigration Judge to waive a ground of
inadmissibility under Section 2 1 2(a)(6)(A)(i) in the case of an alien who is a spouse,
son , or daughter of a United States citizen or permanent resident if the alien establishes
that refusal of admission to the United States of such alien would result in extreme
hardship to the citizen or permanent resident spouse or parent of the alien. The factors
to be considered in determining if whether an alien has established extreme hardship
pursuant to Section 21 2(i) of the Act include but are not limited to the following: the
presence of lawful permanent resident or United States citizen family ties to this
country; the qualifying relative's family ties outside of the U nited States; the conditions
in the country or countries to which the qualifying relative would relocate, and the extent
of the qualifying relative's ties to such countries; the financial impact of departure from
this country; and a final significant condition of health , particularly when tied to

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regulations for filing status as head of household .

.. -"

unavailability of suitable medical care in the country to which the qualifying relative
would relocate. Matter of Cervantes, 22 l&N Dec. 560 (BIA 1999).

Form 1-601 waiver to waive the ground of inadmissibility under Section 212(a)(6)(C)(i)
as an alien who willfully misrepresented a material fact, sought to acquire an immigrant
visa and admission into the United States and benefit under the Act as a lawful
permanent resident. Respondent failed to mention on his two applications for
adjustment of status his arrest for attempted murder in 1997, its disposition and related
documents, thus undermining the Court's ability to determine if it was a ground of
inadmissibility, and if not, whether it should be considered as a factor as a matter of
discretion. Respondent claimed that he failed to mention his 1997 arrest for attempted
murder on his application because it was a false statement (in other words, he was
falsely accused), but he understood this clearly to be an arrest. It is evident to the Court
that respondent, in his own words, knew he had been arrested in 1997 for attempted
murder, but deliberately failed to mention on his application for adjustment of status,
where he is attempting to obtain an immigrant visa because he believed he was falsely
accused, i.e. a false statement.
Additionally, the Court finds that the respondent mislead the Court when
he claimed on various documents and in his testimony that he was either married or
single. The respondent testified that although he has been divorced from his wife since
July 2010, he considers himself married to her because they have been living together.
His 2011 federal income tax returns, allegedly filed with the Internal Revenue Service,
also claimed that he is married, yet his two adjustment of status applications indicate
that he is divorced and has no spouse. His G-325 also indicates that he is not married,
and does not have a spouse although the respondent claimed that he is married and
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Here, the respondent, via counsel, declined the opportunity to submit the

living together with his wife Patricia in the same household, on his 201 2 federal tax
returns filed with the IRS, he claimed his filing status is head of household, which would

respondent's testimony under oath, his two applications for adjustment of status, signed
under penalty of perjury, his 201 2 and 201 1 federal income tax returns, also filed with
the Internal Revenue Service and signed under the penalty of perjury, and his G-325
signed under penalty of perjury, the Court finds the respondent has deliberately
attempted to mislead the Court regarding his marital status in order to obtain a benefit
under the Act, his permanent resident status. Therefore, his application will be denied,
as his inadmissible under Section 21 2(a)(6)(C)(i) of the Act, and he has not submitted
the waiver for that ground of inadmissibility.
Assuming arguendo that the respondent is not inadmissible, in light of the
above outlined adverse credibility factors, he has not shown that he merits his
application of being granted as a matter of discretion. In exercising discretion, the Court
has reviewed the record as a whole, and balanced the adverse factors evidencing the
respondent's undesirability as a permanent resident in this country with social and
humane considerations presented to determine whether the granting of relief appears in
the best interest of this country. Matter of Edwards, 20 l&N Dec. 872 (BIA 1 994).
Respondent has the following positive equities. He has been in the United
States since his last date of entry of 1 996. He has family in the United States that
consists of sisters who are citizens of the United States, and a son Edwardo, who is
also a citizen of the United States. He also has been attending Emmanuel Adventist
Church (although it's not listed on his application). The Court has received letters from
his youngest son , Edwardo, relating to why the respondent should be granted
permanent resident status. The negative factors in respondent's case, of course, is the
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be inconsistent with the IRS rules defining head of household. After reviewing the

adverse credibility determination. His inconsistent statements on his application for

adjustment of status versus his testimony, his claim that he is married versus other

two applications for adjustment of status that he has filed with the Court related to his
marriage status, his 2012 tax returns where he claims that he is head of household, yet
he testified that presently he considers himself married.
And his criminal history, he has failure to reveal on his applications that he
was arrested for attempted murder, which is not mentioned on either of his applications
for adjustment of status. So balancing the positive factors against the negative factors,
assuming that respondent is not inadmissible, the Court will deny the respondent's
application as a matter of discretion. The Court believes that the negative factors
outweigh the positive factors.
For the above stated reasons, the respondent's application for adjustment
of status will be denied.
Respondent is not seeking any other relief before the Court.
Accordingly, the following order shall be entered.
ORDER
IT IS HEREBY ORDERED 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 shall be removed and
deported from the United States to Mexico based on the charge contained in the Notice
to Appear.

DEITRICH H. SIMS
Immigration Judge
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evidence indicating that he is single, his 2011 tax returns which are inconsistent with the

CERTIFICATE PAGE

in the matter of:

DAVID AGUINAGA MELENDEZ
A200-759-135
DALLAS, TEXAS
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

HOLLY O'NEILL (Transcriber)

DEPOSITION SERVICES, lnc.-2
DECEMBER 10, 201 3
(Completion Date)

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I hereby certify that the attached proceeding before JU DGE DEITRICH H. SIMS,