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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Ptke, Suite 2000


Falls Church, Virginia 2204/

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Brown, James Malcolm OHS/ICE Office of Chief Counsel - DAL
JBB Immigration Law Group 125 E. John Carpenter Fwy, Ste. 500
1909 Central Drive, Suite 301 Irving, TX 75062-2324
Bedford, TX 76021

Name: DE GONZALEZ, EDUARDA A 096-699-471

Date of this notice: 3/15/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Wendtland, Linda S.
O'Connor, Blair

.
t1 i I)

Userteam: Docket

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Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
,. .

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A096 699 471 -Dallas, TX Date:


MAR 1 5 2017
In re: EDUARDA DE GONZALEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: James Brown, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act (8 U.S.C. l182(a)(6)(A)(i)] -


Present without being admitted or paroled

APPLICATION: Adjustment of status; waiver of inadmissibility under section 212(i) of the Act

In a decision dated February 5, 2016, the Immigration. Judge determined that the respondent
has not established that she is "clearly and beyond a doubt entitled to be admitted and is not
inadmissible" for adjustment of status under sections 212(a)(l)(A) (Health-Related Grounds) and
212(a)(4)(C)(ii) (Public Charge) of the Immigration and Nationality Act, 8 U.S.C.
l182(a)(l)(A), (a)(4)(C)(ii) (I.J. at 7-9). See section 240(c)(2)(A) of the Act, 8 U.S.C.
1229a(c)(2)(A); 8 C.F.R. 1240.8(c); Soriano v. Gonzales, 484 F.3d 318, 320 n.
1 (5th Cir. 2007). In order to establish her admissibility under section 212(a)(l)(A)(ii) of the
Act, the respondent presented a sealed Form I-693 Report of Medical Examination and
Vaccination Record ("I-693") at the February 5, 2016, merits hearing. However, upon unsealing
it, the Immigration Judge observed that the Form 1-693 was not signed by the examining civil
surgeon. The Immigration Judge determined that the I-693 is legally deficient and, as a result,
that the respondent has not established her admissibility under section 212(a)(l)(A)(ii) of the Act
(I.J. at 8).

The Immigration Judge also determined that the respondent has not established her
admissibility under section 212(a)(4)(C)(ii) of the Act due to legal deficiencies in the 1-864
Affidavit of Support under Section 213A of the Act ("I-864") from the respondent's sponsor and
her joint sponsor. Specifically, the Immigration Judge determined that the 1-864 for the sponsor
is deficient because the respondent neither provided the sponsor's Federal income tax returns for
the 3 most recent taxable years, nor established that the sponsor had no legal duty to file returns
for those years. Similarly, the Immigration Judge rejected the I-864 from the joint sponsor
because it was only supported with a Federal income tax return for 2013. The Immigration
Judge noted that the I-864 was "filed" in Immigration Court on April 29, 2015, and he took
administrative notice that the last day on which to file a Federal income tax return without an
extension for tax year 2014 was April 15, 2015 (I.J. at 8). Thus, the Immigration Judge
determined that the respondent's joint sponsor has not supported the I-864 with a completed
Federal income tax return for the most recent taxable year. The respondent, therefore, did not
establish her admissibility under section 212(a)(4)(C)(ii) of the Act.

Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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A096 699 471

In the Notice of Appeal (Form EOIR-26), the respondent argues that she is not inadmissible
for adjustment of status under the Health-Related and Public Charge grounds, and she contends
that the Inunigration Judge should have granted her request for a continuance in order to present
1
a properly executed Form I-693 (Tr. at 60-61). For the following reasons, the respondent's
appeal will be sustained, and the record will be remanded for further proceedings and the entry
of a new decision.

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I. The respondent's admissibility under section 212(a)( l )(A) of the Act

Pursuant to section 232(b) of the Act, 8 U.S.C. 1222(b), the respondent was "required to
have a medical examination by a designated civil surgeon," and his report, the I-693, was
required to be "incorporated into the record." 8 C.F.R. 1245.5. The medical examination must
be incorporated into the evidentiary record because, under section 240(c)(l)(B) of the Act, "[i]f a
medical officer or civil surgeon or board of medical officers has certified under section 232(b)
that an alien has a disease, illness, or addiction which would make the alien inadmissible under
paragraph (1) of section 212(a), the decision of the immigration judge shall be based solely upon
such certification." (emphasis added). In this case, the Form I-693 is dispositive of the
respondent's admissibility under section 212(a)( l )(A) of the Act.

The I-693 was sealed by the civil surgeon before it was returned to the respondent, and the
respondent submitted the sealed I-693 to the Immigration Judge. See Department of Homeland
Security, U.S. Citizenship and Immigration Services, Instructions for I-693, Report of Medical
Examination and Vaccination Record (PDF, 301 KB) at 1 of 11, available at
https://www.uscis.gov/i-693 (last visited Oct. 28, 2016). The I-693, which was completed on
January 22, 2016, reflects that the respondent has no "communicable disease of public health
significance," no disqualifying "physical or mental disorder," is not a drug abuser or addict, and
has had all of the required vaccinations. See section 212(a)(l )(A) of the Act. Although it was
presented to the Immigration Judge sealed, he determined that the civil surgeon's missing
signature rendered the I-693 legally deficient as evidence of the respondent's admissibility. He
also denied the respondent's request for a continuance to submit a new I-693 (Tr. at 60-61).

The respondent has demonstrated "good cause" for a continuance. See 8 C.F.R. 1003.29,
1240.6. If the applicant is otherwise eligible and admissible for adjustment of status, and there is
no convincing reason for which to doubt her discretionary merit for adjustment, then the
proceedings should be continued in order for a new I-693 to be submitted. Cf. Masih
v.Mukasey, 536 F.3d 370, 373-74 (5th Cir. 2008); see also Wu v. Holder, 571 F.3d 467, 468-70
(5th Cir. 2009); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Insofar as the I-693 was
required to be sealed before the respondent received it from the civil surgeon and submitted it to
the Immigration Judge, she may not be held liable for a defect in the document of which she was
not only ignorant, but was supposed to have been ignorant. Accordingly, the record will be

1 The respondent has also argued that she is not inadmissible under section 212(a)(6)(C)(i) of the
Act (Tr. at 59, 69-70, 71-72), and that the Immigration Judge improperly excluded her Mexican
birth certificate from the evidentiary record (l.J. at 3, 4; Tr. at 47-49; Exh. 6). However, we need
not address these issues in order to resolve the appeal.

Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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A096 699 471

remanded for the respondent to submit a new medical examination in accordance with 8 C.F. R.
1245.
5.

II.The respondent's admissibility under section 212(a)(4)(C)(ii) of the Act

Section 212(a)(4)(C)(ii) of the Act provides:

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Any alien who seeks admission or adjustment of status under a visa number
issued under section 20 l(b)(2) or 203(a) is inadmissible under this paragraph
unless ...the person petitioning for the alien's admission (and any additional
sponsor required under section 213A(f) or any alternative sponsor permitted under
paragraph (5)(B) of such section) has executed an affidavit of support described in
section 213A with respect to such alien.

The respondent's admissibility depends on whether an affidavit of support under section


213A(f)( l) of the Act, 8 U.S.
C. l183a(f)(l), has been effectively executed on her behalf. It is
not disputed that the sponsor and the joint sponsor are respectively a United States citizen (the
sponsor) and an alien lawfully admitted for permanent residence (the joint sponsor) who are at
least 18 years of age and a domiciliary of the United States. See section 213A(f)(l) of the Act;
8 C.F. R. 213a2(c)( l)(i). Rather, the viability of the sponsorship turns on whether the sponsor
or the joint sponsor has satisfactorily demonstrated "the means to maintain an annual income
equal to at least 125 percent of the Federal poverty line." See section 213A(f)(l)(E) of the Act;
8 C.F.R. 2 l 3a.2(c)(2); Affidavits ofSupport on Behalf of Immigrants; Final Rule, 71 Fed. Reg.
35732, 35734, 35740 ( u J ne 21, 2006) (explaining that the sponsor and the joint sponsor may not
combine their incomes in order to jointly satisfy the annual income requirement). The
respondent has conceded that her sponsor cann ot satisfy this requirement. She maintains,
however, that her joint sponsor has shown the means necessary to satisfy the annual income
requirement.

As an initial matter, the Immigration Judge erroneously required the respondent's sponsor
and joint sponsor to submit Federal income tax returns for the 3 most recent taxable years (l..J at
7-8; Tr. at 60, 90). The implementing regulation requires submission of only the "complete
Federal income tax return for the most recent taxable year (counting from the date of the signing,
rather than the filing, of the affidavit of support." (closing parenthesis omitted in original)
(emphasis added). 8 C.F.R. 213a.2(c)(2)(i)(A). The regulation permits, but does not require,
the sponsor or joint sponsor, "at his or her option," to submit Federal income tax returns for the
3 most recent tax years "if the sponsor believes that these additional tax returns may help in
establishing the sponsor's ability to maintain his or her income at the applicable threshold set
forth in the Poverty Guidelines.
" Id.

Prior to July 21, 2006, the effective date of the final rule amending the implementing
regulation for section 213A(f)(6) of the Act, the prior regulation: in effect under the interim rule
mandated the provision of Federal income tax returns "for each of the 3 most recent taxable
years." 8 C.F. R. 213a.2(c)(2)(i)(A) (2005); see also Affidavits of Support on Behalf of
Immigrants; Final Rule, supra, at 35738; Affidavits ofSupport on Behalf of Immigrants; Interim
Rule, 62 Fed. Reg. 54346, 54348 (Oct.20, 1997); Ramchandani v. Gonzales, 434 F.3d 337, 341
(5th Cir. 2005) (recognizing the former "three years of income tax returns" requirement).

Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
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A096 699 471

However, relying on the discretion expressly provided in section 213A(f)(6)(B) of the Act, the
Attorney General and the Secretary of the Department of Homeland Security abrogated the prior
requirement of 3 years, and replaced it with the current requirement of just the Federal income
tax return for the most recent taxable year. See Affidavits of Support on Behalf of Immigrants;
Final Rule, supra, at 35738 ("[O]nce this final rule enters into force, a sponsor will only be
required to submit one Federal tax return, for the most recent tax year.").

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In the case of the sponsor, the respondent concedes that he cannot demonstrate the necessary
income to satisfy section 213A(f)(l)(E) of the Act. The I-864 for the sponsor, which was signed
on January 28, 2015, reflects a household size of 3 and a total income of $7,344 for 2014, the
most recent taxable year. Thus, the sponsor's gross income is lower than the required threshold
of "at least 125 percent of the Federal poverty line" for 2014, which for a household of 3 was
$24,737.50 (Tr. at 88). See 8 C.F.R. 213a.2(c)(2); see also Department of Health and Human
Services, Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3593 (Jan. 22, 2014)
(setting the poverty line for a household of 3 at $19,790). Since the respondent has conceded
that her sponsor cannot meet the income requirement for sponsorship, the related requirement of
providinf the federal income tax return for the most recent taxable year is inapplicable to the
sponsor. See 8 C.F.R. 213a.2(c)(2)(i)(D), (c)(2)(iii).

The respondent maintains, however, that her joint sponsor has met the annual income
requirement. We conclude that further proceedings are necessary to determine whether the joint
sponsor meets this requirement. First, the Immigration Judge impermissibly required the

respondent to submit the 2014 Federal income tax return from the joint sponsor before the
February 5, 2016, merits hearing. 3 See 8 C.F.R. 1240.ll(a)(2); see also Affidavits of Support
on Behalf of Immigrants; Final Rule, supra, at 35744. The joint sponsor signed the affidavit of
support on January 28, 2015, and it was filed in Immigration Court on April 29, 2015 (I.J. at 8;
Exh. 8).

2 The sponsor did not support the I-864 with Federal income tax returns. Instead, the sponsor,
who indicated that his income consists entirely of social security benefits, provided a Form SSA-
1099 - Social Security Benefit Statement for each of the 3 most recent taxable years (I.J. at 7).
We take administrative notice that, unless the sponsor's filing status in 2014.was "married, filing
separately," he would not have been required to file a Federal income tax return due to
insufficient income. See Dep't of the Treasury, Internal Revenue Service Publication 501
(2014) at 2, available at htt,ps://www.irs.gov/pub/irs-prior/p501--2014.pdf? ga=l.223493080.
217140844.1428599869 (last visited Nov. 2, 2016); see also 8 C.F.R. 1003. l(d)(3)(iv).

3 The respondent attempted to provide his 2014 Federal income tax return to the Immigration
Judge at the February 5, 2016, merits hearing, but the Immigration Judge determined that the
respondent has not presented a valid reason for excepting the proffered evidence from the
ordinary rule that evidentiary filings must be submitted "at least fifteen (15) days in advance of
the hearing" (I.J. at 7-8). See Office of the Chief Immigration Judge, Immigration Court
Practice Manual, 3.l(b)(ii)(A), at 35, available at http://www. justice.gov/eoir/vll/OCUPrac
Manual/Practice Manual 1-27-14.pdf#.page=43 (last visited Nov. 2, 2016).

Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
' .
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A096 699 471


1

As already indicated, "the date of the signing, rather than the filing, of the affidavit of
support" is used to determine the "most recent taxable year." 8 C.F.R. 213a.2(c)(2)(i)(A).
However, the date of filing for the 1-864 is used to determine when "more than one year" has
passed for the purpose of requiring the respondent, in the exercise of the Immigration Judge's
discretion, to submit additional evidence in support of the joint sponsor's 1-864. See 8 C.F.R.
213a.2(a)( l )(v)(B). In other words, until more than 1 year has passed since the respondent

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filed the 1-864 in Immigration Court, the Immigration Judge may not require the respondent to
submit additional evidence or an updated 1-864.

In this case, the date of signing indicates that the joint sponsor's most recent taxable year was
2014. See 26 U.S.C. 770 l (a)(23) ("The term 'taxable year' means the calendar year, or the
fiscal year ending during such calendar year, upon the basis of which the taxable income is
computed under subtitle A."). At that time, however, the joint sponsor was under no legal duty
to file a Federal tax return for 2014, since the statutory Federal income tax filing date,
April 15, 2015, had not yet passed (I.J. at 8). See 8 C.F.R. 213a2(c)(2)(i)(B); 26 U.S.C.
6072(a) ("[R]eturns made on the basis of the calendar year shall be filed on or before the 15th
day of April following the close of the calendar year . . . ."). Moreover, by the time of the
February 5, 2016, merits hearing, "more than.one year" had not yet elapsed since the respondent
filed the 1-864 from her joint sponsor on April 29, 2015.

Hence, the Immigration Judge exceeded his authority by requiring additional evidence of the
joint sponsor's ability to satisfy the income requirement under section 213A(f)( l )(E) of the Act.
Under these facts, the joint sponsor's 2013 Federal income tax return, if otherwise compliant
under the regulations, see 8 C.F.R. 213a.2(c)(2)(i)(A), is legally sufficient as evidence of his
ability to "maintain the intending immigrant [the respondent] at an annual income of at least
125 percent of the Federal poverty line." See 8 C.F.R. 213a.2(c)(2).

In view of the passage of "more than one year" since the respondent submitted the 1-864 on
April 29, 2015, on remand further proceedings should be held in order to determine the
respondent's admissibility for adjustment of status in accordance with this opinion. See Matter
of Kazemi, 19 l&N Dec. 49, 51 (BIA 1984). And the respondent must be afforded the
opportunity to submit a new medical examination. The following order will be entered.

ORDER: The respondent's appeal is sustained, and the record is remanded for further
proceedings and the entry of a new decision.

FOR BOARD --=

Cite as: Eduarda de Gonzalez, A096 699 471 (BIA March 15, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

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File: A096-699-471 February 5, 2016

In the Matter of

)
EDUARDA DE GONZALEZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: 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 or who arrived in the United
States at any time or place other than designated by the Attorney
General.

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


ltnmigration and Nationality Act, as amended;

Request for waiver of inadmissibility pursuant to Section 212(i) of


the Immigration and Nationality Act, as amended.

ON BEHALF OF RESPONDENT: JAMES BO BROWN, Esquire


P. 0 Box 210491
Bedford, Texas 76095

ON BEHALF OF OHS: ROSLYN GONZALEZ


Assistant Chief Counsel
Dallas, Texas

1
ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of Mexico. It is alleged that she entered the

United States at or near an unknown place on or about an unknown date. At that time

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she was not admitted or paroled after inspection by an Immigration officer.

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

Government) charged the respondent with removability under Section 212(a)(6)(A)(i) of

the Immigration and Nationality Act (Act), as amended, in that she is an alien present in

the United States without being admitted or paroled or who arrived in United States at

any time or place other than designated by the Attorney General. Exhibit 1.

On October 4, 2010, the respondent, via counsel, admitted that she received a

copy of the Notice to Appear. Exhibit 1.

Also on October 4, 2010, the respondent, through counsel, admitted that

respondent is not a citizen or national of United States, that she is a native and citizen

of Mexico and that she was not admitted or paroled after inspection by an Immigration

officer. The respondent, through counsel, also conceded to the charge of removal

pursuant to Section 212(a)(6)(A)(i) of the Act. However, the respondent denied

allegation 3 that she arrived in United States at or near an unknown place on or about

an unknown date.

Based on the respondent's, through counsel, admissions that she is not a citizen

or national of United States, that she is a native and citizen of Mexico, that she entered

the United States illegally and concession to the charge of removal pursuant to Section

212(a)(6)(A)(i) of the Act, the Court found that removal had been established.

Respondent has the burden of proof to establish the time, place and manner of entry

pursuant to Section 291 of the Act. In case removal became necessary, the respondent

designated Mexico.

A096-699-471 2 February 5, 2016


The respondent seeks relief from removal in the form by an application for

adjustment of status. The respondent also needs a waiver of inadmissibility pursuant to

Section 212(a)(6) of the Act in that she previously filed an application for adjustment of

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status with the Department of Homeland Security United States Citizenship and

Immigration Service, USCIS. That was denied because she failed to reveal that she

had a prior arrest.

DOCUMENTARY EVIDENCE

Exhibit No. 1, the Notice to Appear.

Exhibit No. 2, the Form 1-797 notice of action, visa petition approval.

Exhibit No. 3, the Form 1-797 approval notice.

Exhibit 4, Department of Homeland Security submitted evidence, including a

decision denying a previously filed Form 1-485 application for adjustment of status with

USCIS pursuant to Section 212(a)(6)(C)(i) of the Act and the Form 1-485 filed with

USCIS.

Exhibit 5, respondent's application for adjustment of status filed with the Court,

including the fee receipt.

Exhibit 6, marked for identification purposes, purportedly a Mexican birth

certificate for the respondent.

Exhibit 8, respondent's updated evidence for adjustment of status, including the

affidavit of support from the sponsor, Simon Martinez del Dio; the affidavit of support for

the cosponsor, Fabian Martinez Oropeza. Included with these documents is the

naturalization certificate for Simon Martinez; a copy of his 2014 SSA-1099, social

security benefits for 2013 and 2012; a copy of Fabian Martinez' lawful permanent

resident card; a letter of employment;, the 2013 Federal tax returns purportedly filed

with the Internal Revenue Service, that would be two forms for 2013 for Fabian

A096-699-471 3 February 5, 2016


Martinez.

Exhibit 9, marked for identification purposes, a Spanish document not

accompanied with a translation.

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Exhibit 10, marked for identification purposes, additional documents from the

respondent.

Also Exhibit No. 7, supporting documents from the respondent.

The following documents were admitted into the record without objections:

Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 7 and Exhibit No. 8.

The Government objected to Exhibit No. 6 that was marked for identification

purposes purportedly to be a birth certificate of the respondent. The Government's

objection was based on 1003.33, in that there was not a complete translation from

Spanish to English. The Government's objection was sustained because after

reviewing the English translation it is clear that the upper portion of the Spanish version

was not translated as required by the regulations at 1003.33.

The Government also objected to Exhibit No. 9 marked for identification

purposes, a Spanish document that had not been translated from Spanish to English.

The Government's objection is sustained based on 1003.33, which requires all

documents that are in a foreign language be translated from this foreign language to the

English language with a certificate of translation.

The Government also objected to Exhibit No. 10 that was marked for

identification purposes. This document was objected to based upon it being submitted

untimely. All of the Government's objections were sustained with respect to Exhibit No.

10. The documents were submitted untimely, failed to comply with the Practice Manual

and there was no good cause shown why the documents were submitted untimely. The

Government also objected to Exhibit 10, marked for identification purposes, the 2014

A096-699-471 4 February 5, 2016


tax returns for Fabian Martinez in that there is no corroborating evidence that these

documents were filed with the Internal Revenue Service as required by law. The Court

notes that they are not signed and there is no corroborating evidence that these are the

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tax returns that were filed with the Internal Revenue Service. The Government's

objections on the timeliness was sustained in that would be prejudicial to the

Government to consider these documents since they were not given an opportunity to

review the documents.

BRIEF SUMMARY OF TESTIMONY

The respondent testified that she has been in the United States for approximately

21 years, her first date of entry was in February of 1993. The respondent has two

children who were born in United States, Favia age 21 and Estevan age 16. Both of her

children reside with her. Respondent also indicated that her father is a citizen of United

States and as the sponsor and also resides with her. Respondent testified that Favia

works part time and attends college at TTC. She has been attending college for

approximately two and a half years. The respondent testified that Estevan is in the

tenth grade.

The respondent testified about criminal history. The respondent provided

testimony about a theft offense, shoplifting. She indicated that she was at a store and it

was a mistake that she had been arrested. Respondent indicated that she did not

speak English at the time. She indicated that when she was taken by security,

eventually she was released and money and receipts were returned to her.

Respondent indicated she was accused of stealing. The respondent claimed that the

store returned to her money with receipts. Respondent indicated that at the time this

happened she did not understand anything that happened. On direct examination,

respondent indicated that she had not been convicted of any offense.

A096-699-471 5 February 5, 2016


The respondent testified about employment in the United States. She indicated

that she works at a disabled home caring for children. She has been working at this

position for approximately one year. She earns $8 an hour.

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Respondent testified that her children are dependent on her for support.

Respondent was asked questions about an application for adjustment of status

that was filed with USCIS. Respondent indicated that the application was prepared by a

notary. Respondent indicated that she does not recall why she did not disclose that she

had been arrested. She indicated that she did tell the Immigration officer who

interviewed her for her application for adjustment of status that she had been arrested,

but it had not been disclosed on her application.

Respondent indicated that she has no relatives in Mexico. She believes that it

would be harmful to her and her children if she had to depart the United States.

Again on cross-examination respondent initially testified that she had not been

convicted of a crime. Later she testified that she did not know what the word conviction

meant. However, she did testify that she had pied guilty to shoplifting theft.

After the conclusion of the evidentiary hearing the Government moved to

pretermit the respondent's application for adjustment of status in that she failed to

comply with the statutory and regulatory requirements; in that she failed to establish that

she is not inadmissible and would not be a public charge; in that the affidavit of support

had not been completed properly. The Government also objected to the medical

examination being considered in that it was not signed by an authorized medical official.

There is no signature from the doctor.

In general the respondent's counsel requested that the case be continued to

allow the respondent to successfully complete the missing portions of the application.

The Court denied this request and the Court will grant the Government's motion to

A096-699-471 6 February 5, 2016


pretermit for the following reasons.

On or about June 19, 2013, the respondent, with current counsel, appeared in

court for the Court to consider her application for adjustment of status. The Court

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informed the respondent's counsel that it would require an updated and current affidavit

of support, along with tax returns from the sponsor and cosponsor for the three most

recent tax years. The Court also informed the respondent's counsel that a current

medical examination also needed to be submitted. The Court also informed the

respondent's counsel of the need to submit additional evidence as it relates to the

extreme hardship requirement if respondent is found to be inadmissible.

The respondent has failed to comply with requirements for adjustment of status

and the Court's order.

The Court finds that the respondent has failed to establish that she is not

inadmissible pursuant to the poverty guidelines.

The affidavit of support in Exhibit No. 8 from the sponsor, Simon Martinez, is

deficient. The respondent has failed to submit Federal tax returns for the sponsor for

2014, 2013 and 2012. The respondent failed to demonstrate to the Court that the

sponsor was not legally obligated to file Federal tax returns. Although the respondent

submitted the Form SSA-1099 Social Security benefit statement for 2014, 2013 and

2012, these documents in and of itself do not establish that the sponsor was not

required to file Federal tax returns as required by law, nor do they indicate that this was

his only income.

The affidavit for the cosponsor, Fabian Martinez, is also deficient for the following

reasons. The Court required that most recent tax returns be submitted for this

individual. Only the 2013 tax returns were submitted in a timely manner. In addition,

the Court did not receive the 2012 Federal tax returns for the cosponsor. The Court will

A096-699-471 7 February 5, 2016


note that the 2014 tax returns for the cosponsor were submitted today, but rejected

because it is untimely. The Court has sustained the Government's objections as it

would be prejudicial to the Government to consider a late filing of these documents and

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there was no explanation or good cause shown for the untimely submission of the

cosponsor's 2014 tax returns.

The Court also note that the affidavit of support for cosponsor Fabian was also

not completed properly in that it only covers tax years from 2013, 2012 and 2011 even

though it was filed with the Court on or about April 29, 2015. In other words, the three

most recent tax returns were not included. The Court will take administrative notice that

on or about April 15, 2015, the Federal tax returns for the tax year 2014 were due to the

Internal Revenue Service and respondent failed to demonstrate to the Court why the

affidavit of support did not include the portion for most recent tax returns, year 2014.

Based upon the respondent's failure to demonstrate to the Court that she met the

requirements under 213 and that the affidavit of support and Federal tax returns were

submitted as required by law to show that she would not be a public charge, the Court

finds that the Government's motion should be granted in that respondent has not shown

that she is inadmissible.

The Court also finds that the respondent has failed to submit a properly executed

medical examination. The Court notes that the medical examination that was provided

to the Court this morning was not signed by a physician or an authorized official.

The Court believes the respondent has had approximately two and a half years

since we last met on or about June 19, 2013, to address these issues. The Court would

note that on June 19, 2013, when the respondent appeared for a hearing on an

application for adjustment the same deficiencies that were being considered today also

were found to have happened on June 19, 2013, and the respondent did not sufficiently

A096-699-471 8 February 5, 2016


correct these deficiencies even though she has had more than two and a half years to

do so. Therefore, the Court found that any continuance would not be warranted in that

no good cause has been shown.

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For all of the above-stated reasons, the Court will grant the Government's motion

to pretermit the respondent's application for adjustment of status.

The respondent is not seeking any other relief from removal.

Accordingly, the following order shall be entered.

ORDER

IT IS HEREBY ORDERED that respondent's application for adjustment of status

pursuant to Section 245(i) of the Immigration and Nationality Act be pretermitted and

denied.

IT IS FURTHER ORDERED that respondent should be removed and deported

from United States to Mexico based on the charge contained in the Notice to Appear.

Date: February 5, 2016


DEITRICH H. SIMS
United States Immigration Judge
Dallas, Texas

A096-699-471 9 February 5, 2016