Roderico Geronimo Tzum-Sum, A071 575 904 (BIA Aug. 18, 2017)

U.S.
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041
Immigrant & Refugee Appellate Center, LLC | www.irac.net

Weinsetel, Diego Javier OHS/ICE Office of Chief Counsel - LOS
Law Offices of Diego J. Weinsetel 606 S. Olive Street, 8th Floor
9040 Telegraph Rd., Suite 311 Los Angeles, CA 90014
Downey, CA 90240
Name: TZUM-SUM, RODERICO GERONI... A 071-575-904
Date of this notice: 8/18/2017
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Wendtland, Linda S.
Pauley, Roger
'
... ' .
Userteam: Docket
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Cite as: Roderico Geronimo Tzum-Sum, A071 575 904 (BIA Aug. 18, 2017)
.1
U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A071 575 904 - Los Angeles, CA Date:
In re: Roderico Geronimo TZUM-SUM AUG 1 8 2017

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Diego J. Weinsetel, Esquire
APPLICATION: Adjustment of status
The respondent appeals the Immigration Judge's September 1, 2016, decision denying his
application for adjustment of status under section 245(a) of the Immigration and Nationality Act,
8 U.S.C. 1255(a) (2012). The Department of Homeland Security has not responded to the appeal.
The appeal will be sustained and the record will be remanded for any necessary background and
-
security investigations.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The Immigration Judge denied the respondent's application for adjustment of status in the
,_ exercise of discretion(U at 7-22). See Matter of Blas, 15 l&N Dec. 626, 628-30 (BIA 1974, A.G.
1976); Matter of Arai, 13 l&N Dec. 494 (BIA 1970). The respondent presents a close case on the
issue of discretion in light of his criminal record. Upon our de novo review of the Immigration
Judge's discretionary decision, however, we conclude that the respondent merits a favorable
exercise of discretion in his application for adjustment of status.
Specifically, we conclude that the respondent's favorable factors and social and humane
considerations presented on the respondent's behalf outweigh his undesirability as a permanent
resident, such that he merits a favorable exercise of discretion. See Matter of Blas, 15 I&N Dec.
at 628-30; Matter ofArai, 13 l&N Dec. at 495-96. In so concluding, we rely on the factual findings
by the Immigration Judge, but give different weight to the positive and negative factors in the
respondent's case. See Matter of Z-Z-0-, 26 I&N Dec. 586, 590 n.3 (BIA 2015) (declining to
disturb our conclusion in Matter of H-L-H- & Z-Y-Z-, 25 l&N Dec. 209 (BIA 2010), abrogated on
other grounds by Hui Lin Huang v. Holder, 611 F.3d 130 (2d Cir. 2012), that we have authority
to give different weight to evidence from that given by an Immigration Judge).
A071 575 904
As a threshold issue, the Immigration Judge did not determine whether the respondent must
satisfy the heightened standard set forth in Matter of Jean, 23 l&N Dec. 373 (A.G. 2002), to
demonstrate that he merits a favorable exercise of discretion (IJ at 7). On appeal, the respondent
argues that he is not subject to the heightened standard under Matter ofJean because his 1998
conviction for misdemeanor sexual battery under Cal. Penal Code 243.4(d)(l) was not for a
''violent or dangerous" crime (Respondent's Brief at 18-20).

In cases involving aliens who are ''violent or dangerous individuals," the Attorney General has
communicated in unequivocal terms that an exercise of discretion to favorably adjust status is only
appropriate in extraordinary circumstances. See Matter ofJean, 23 l&N Dec. at 383; Matter of
K-A-, 23 I&N Dec. 661, 666 (BIA 2004). The United States Court of Appeals for the Ninth Circuit,
in whose jurisdiction this case arises, held that the Board did not err in applying the heightened
standard announced in Matter ofJean to adjustment of status applications. See Torres-Valdivias
v. Lynch, 786 F.3d 1147, 1155 (9th Cir. 2015). Furthermore, in determining generally whether a
favorable exercise of discretion is warranted, the Board looks to probative evidence outside the
record of conviction, including circumstances surrounding the commission of a crime. See Matter
of Mendez-Moralez, 21 I&N Dec. 296, 303 n.l (BIA 1996); see also Matter of Teixeira, 21 l&N
Dec. 316, 321 (BIA 1996) (discussing the admission of police reports in the context of
discretionary determinations). 1
The respondent was convicted in 1998 for the offense of misdemeanor sexual battery in
California, which punishes a person who ''touches an intimate part of another person, if the
touching is against the will of the person touched, and is for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse." (Exh. 4, Tab H). Cal. Penal Code 243.4(d)(l) (1998). The
term "intimate part" is defined as the "sexual organ, anus, groin, or buttocks of any person, and
the breast of a female." Cal. Penal Code 243.4(f)(l) (1998).
We are not convinced that the respondent's conviction for misdemeanor sexual battery
constitutes a ''violent or dangerous" crime as contemplated by the Attorney General in Matter of
Jean. The offense involves the offensive touching of an intimate body part of another, and does
not require the use of force or the infliction of bodily harm. See Cal. Penal Code 243.4(d)(l)
(1998). Moreover, the respondent was imprisoned for 3 days and sentenced to 36 months of
summary probation (Exh. 4, Tab H), and the circumstances surrounding the commission of this
crime do not indicate that the respondent used violent or dangerous force (IJ at 13-16; Tr. at 25-
27, 33-35). Thus, we conclude that the heightened standard does not apply to the respondent's
adjustment of status application.
Upon our de novo weighing of the positive and negative factors in this case, we agree with the
Immigration Judge that the respondent's conviction for misdemeanor sexual battery, his
concession that he provided a false name to police at the time of his arrest, and his purposeful
1 Given the Immigration Judge's thorough fact-finding of the circumstances surrounding the
respondent's 1998 conviction pursuant to his detailed discretionary analysis and determination, we
conclude that a remand for further fact-finding and analysis on whether the heightened standard
applies is not necessary in this case (IJ at 13-16). See Matter ofJean, 23 l&N Dec. at 383.
2
A071 575904
misrepresentation of his address to state authorities for his required sex offender registration are
significant negative factors (IJ at 13-19). The respondent's conviction for misdemeanor sexual
battery in 1998 is serious, as are the circumstances surrounding his arrest and conviction (IJ at 13-
16; Tr. at 25-27, 33-35, 45-47, 55-66). In addition, the respondent's past intentional
misrepresentation of his address to state authorities when registering as a sex offender is serious
(IJ at 16-19; Tr. at 105-09).

However, we are not persuaded that these negative factors, although significant, outweigh the
extensive equities presented in support of the respondent's application. The respondent has resided
in the United States for over 25 years, and has relatives who are United States citizens, including
his wife and two children (a biological son and a stepson) (U at 8-9; Tr. at 21-23). The respondent
has also shown that his family will likely face significant emotional and financial hardship upon
his removal (IJ at 9-11; Tr. at 75-82). Specifically, the respondent's biological son suffers from
serious developmental, medical, and cognitive difficulties, including autism spectrum disorder, as
well as childhood obesity, trouble swallowing, episodic instances of choking, asthma, and a variety
of food allergies that are severe enough to warrant the family's maintenance of an "EpiPen" (U at
9-10; Exh. 4, Tabs L, P, Q). In addition, treatment for the respondent's son's asthma requires daily
use of a nebulizer (IJ at 10: Tr. at 146-47). The respondent's son also requires occupational therapy
to treat problems with his auditory, tactile, vestibular, and oral sensory processing (IJ at 9-10; Exh.
4, Tab L). Moreover, the respondent's son requires a substantial amount of care from the
respondent's wife, which includes helping him to eat, drink, and dress himself (IJ at 9-10; Tr. at
127-34, 218-23). As noted by the Immigration Judge, the respondent's son's condition presents
"an extremely compelling equity." (IJ at 10).
The Immigration Judge also acknowledged that, in light of the difficulties presented in caring
for the respondent's son, the respondent's removal from the United States would result in financial
strain on the respondent's family, as the respondent currently has full-time employment (IJ at 10-
11). The respondent has presented evidence that he has been employed in the United States as a
truck driver since 2010, and that he has paid income taxes (U at 10; Exhs. 5, 7). Country reports
also indicate that it would be difficult for the respondent to earn a similar wage in Guatemala
compared to his current income in the United States, and that crime, human rights abuses, and
financial constraints could impact his family's ability to visit him in Guatemala (IJ at 11; Exh. 11).
The Immigration Judge also considered the fact that the respondent and his wife are heavily
involved in their local church to be a favorable factor demonstrating the family's ties to their
community, and that the respondent has volunteered his time at his church (IJ at 11).
As noted by the Immigration Judge, the respondent has had no additional convictions since his
1998 conviction (IJ at 11). Furthermore, although the respondent's past intentional
misrepresentation of his address for his sex offender registration is troubling, his successful
completion of approximately 30 sexual compulsion classes and his lack of recidivism provide
evidence of rehabilitation (IJ at 12; Exh 4, Tab H; Tr. at 40). Moreover, when questioned about
his 1998 conviction, the respondent testified that he was "ashamed" of his prior behavior (IJ at 12;
Tr. at 27).
Upon our de novo review of the record as a whole, we conclude that the respondent's equities
sufficiently offset his negative factors, and that he merits a favorable exercise of discretion in his
3
A071 575904
application for adjustment of status. Thus, because there is no dispute as to the respondent's
statutory eligibility for adjustment of status under section 245(a) of the Act, we will sustain the
respondent's appeal and hold that he is eligible for and warrants adjustment of status. We caution
the respondent, however, that future criminal activity may result in his removal from the
United States. See section 237(a)(2) of the Act, 8 U.S.C. 1227(a)(2).

Accordingly, the following orders will be entered.
ORDER: The appeal is sustained and, on this record, the respondent is eligible for and
deserving of adjustment of status pursuant to section 245(a) of the Act.
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).
dv.AJF
Board Member Roger A. Pauley respectfully dissents and would affirm the
Immigration Judge's discretionary denial of adjustment of status.
4
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r

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
File: A071-575-904 September 1, 2016
In the Matter of
RODERICO GERONIMO TZUM-SUM IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGE: INA 237(a)(1)(B)
APPLICATIONS: Adjustment of status under INA 245; asylum under INA 208;
withholding of removal under INA 241(b)(3); protection under
Article Ill of the United Nations Convention Against Torture ("CAT"
protection); and voluntary departure at the conclusion of
proceedings under INA 240B(b)
ON BEHALF OF RESPONDENT: Alfonso Morales
ON BEHALF OF OHS: SaFEIR OlseRSirin Ozen Hallberg and Adam Perleaff
ORAL DECISION OF THE IMMIGRATION JUDGE
This is the oral decision of the Immigration Judge. It is an oral decision
being issued contemporaneously from the bench.
At iss1:1aRGe issue in this case is whether the respondent, an
undocumented native and citizen of Guatemala who presents significant equities, but
whose background in the United States includes a conviction for the crime of sexual
battery, and, even during the course of removal proceedings, the knowing, purposeful
misrepresentation of his address when registering as a sex offender with state
authorities, has satisfied his burden of proving that he merits a favorable exercise of
discretion, such that his undocumented status should be adjusted to that of a lawful
permanent resident of the United States, with all the rights and the privileges attendant
to that status. For reasons set forth below, the Court, finding that the respondent has
failed to satisfy his burden of proving that he merits a favorable exercise of discretion,
denies the application for adjustment of status.
The respondent, alternatively, has request post-conclusion voluntary
departure pursuant to INA 240B(b). The Court grants the application for voluntary
departure, conditioned upon payment of a $500 voluntary departure bond within five
business days of service of today's order, with an alternate of removal to Guatemala.
EXHIBITS
At a hearing on September 1, 2016, the court provided the parties with a
listing of exhibits. That listing will be attached to the short-form order memorializing this
oral decision, and is incorporated by reference herein.
All exhibits are in evidence.
The Court wishes to emphasize that although the order of some of the
exhibits may be confusing, no documents are missing, and all documents have been
considered. By way of example, within Exhibit 4, which includes the respondent's form
1-485 and supporting documents, there are two items that are tabbed with an A. There
are some page numbers that are repeated. Within Exhibit 4, there is a break in the
documents between Tab B, Page 22, and Tab H, Page 67. This is merely the result of
a numbering error, as is apparent when on reviews the documents that are attached to
the Form 1-881, see Exhibit 3. In any case, any reviewing body should rest assured that
no documents are missing and that the court has considered all the documents.
A071-575-904 2 September 1, 2016

INTRODUCTION
The respondent is a 41 year-old native and citizen of Guatemala. He is a
registered sex offender, a consequence of having been convicted of sexual battery in
violation of California Penal Code _243.4(d}(1}.
The respondent was admitted to the United States on a 82 visitor's visa
on August 19, 1991, with authorization to remain in the United States for a temporary
period not to exceed September 30, 1991. See Exhibit 1. The respondent, however,
overstayed on his visa, and, ever since, has been in the United States in violation of
law.
Removal proceedings were commenced with the filing, on April 8, 2008, of
a Notice to Appear dated April 4, 2008. At a master calendar hearing on January 12,
2009, the respondent admitted the factual allegations contained in the Notice to Appear
and conceded deportability as charged. As such, the court finds that deportability
pursuant to INA 237(a)(1)(B) has been established by evidence that is clear and
convincing.
At a hearing on September 17, 2014, the respondent designated
Guatemala as the country for removal in the event that removal becomes necessary.
The Court finds that Guatemala, the country of the respondent's citizenship, is the
appropriate country for removal in the event that removal becomes necessary.
As relief and protection from removal, the respondent initially requested
asylum, withholding of removal under the INA, protection under Article Ill of the United
Nations Convention Against Torture, and special rule cancellation of removal under
. { Formatted: No under11ne
NACARA. See Exhibits 2-3. However, at a hearing on May 5, 2014, the respondent
---,. .. - -
formally withdrew these applications. The Court finds that the respondent's withdrawal
of these applications has been knowing, voluntarily, meaningful, and made as a tactical
A071-575-904 3 September 1, 2016

judgement. 1
In lieu of these withdrawn applications, the respondent filed the application

. ( Fonnatted: No underline
to adjust status under INA 245. See Exibit 4. Altemative_ly, h hs. applie f .
. _ ? r. nm
voluntary departure at the conclusion of proceedings pursuant to INA 240B(b).
THE RESPONDENT'S CRIMINAL HISTORY AND
HIS MISREPRESENTATIONS CONCERNING SEX OFFENDER REGISTRATION
On or about July 31, 1998, the respondent was convicted of sexual

( Formatted: No underline
battery, in violation of California Penal Code ("CPC") 243.4(d)(1). See Exhibit 4H at p.
. [ Formatted: No underline
70; Exhibit 8. 2 This required a finding that the respondent touched an intimate part of
. . . . ..
another person, against the will of that person, for the specific purpose of sexual
. . ( Formatted: No underline
arousal, sexual gratification, or sexual abuse. See Exhibit 8. At the time of the
--:t. . . .
respondent's conviction, the term "intimate part" was defined as meaning the sexual
organ, anus, groin, or buttocks of any person, as well as the breast of any female Id.
The respondent was sentenced to a suspended sentence of 60 days in county jail,

.. ( fOrmatted: No underline
probation, iA-and completion of sexual compulsion counseling. See Exhibit 4H at .p. 71.
--:t. . .
As a consequence of this conviction, the respondent has been required to
formally register as a sex offender with the State of California. He testified that he has
registered every year, and, at the merits hearing on August 2, 2013, provided a copy of
. . ( Formatted: Underline
the registration receipt obtained just days earlier. See Exhibit 9. However, examination
. . . . . . . .
of the registration receipt, coupled with additional inquiry, indicated that the respondent
was purposefully misstating his address to California State authorities.
1 With respect to the NACARA application, the evidence reflects that the respondent did not enter the United
States and/or file an asylum application by the dates required to demonstrate NACARA eligibility. 8 C.F.R. folmatted: No underline
1240.60-1240.61;-Exhibits 2-3.
Formatted: Underline
. Fonnatted: No underline
2 The current version of CPC 243.4(d)(l) is different from the historical version of the statute under which the
respondent was convicted. The histortcai version of the statute under which the respondent was convicted is Formatted: No underline
i ncluded in the record as Exhibit 8.
A071-575-904 4 September 1, 2016

Although initially testifying that the misstatements concerning his address
were not the result of him having anything to hide, and then offering that perhaps the
misstatement of his address was attributable to his embarrassment." the
respondent ultimately conceded that at least one reason he misstated his address
related to his efforts to obtain housing in a neighborhood that otherwise would have
been unavailable to him. The respondent explained with words to the effect that, "if they
know that I am a sex offender, they are not going to rent the place that I am living."
After this was disclosed, the respondent, in advance of the next

Immigration Court hearing date, corrected his registration. See Exhibit 4K at p. 102. He
.
. ( Formatted: No underline
.. . .
since has filed additional documents reflecting the correct address. Exhibit 4R at p. , ..
292.
The respondent testified that after his misrepresentations to state
authorities concerning his address were disclosed in immigration proceedings, he
attempted to register using his correct address. State authorities, however, confirmed
what the applicant apparently already knew - that he was not permitted to reside where
he was residing given his status as a registered sex offender. Thereafter, the
respondent relocated.
ANALYSI S: FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Adjustment of Status
At issue in this case is whether the respondent has satisfied his burden of
proving that he merits adjustment of status in the exercise of discretion, such that his
status should be adjusted from undocumented to that of a lawful permanent resident of
the United States. "Section 245 of the Immigration and Nationality Act reposes with the
Attorney General and his delegates the discretionary power to grant adjustment of
status. Therefore, it follows that mere eligibility for that privilege will not automatically
A071-575-904 5 September 1, 2016

_ ( Formatted: No underline
result in a grant of the application." See Matter of Arai, 13 l&N Dec. 494, 495 (BIA
- - -
1970).
Indeed, it has long been recognized that "(a]djustment of status was not
intended to be granted in non-meritorious cases, and that "[a]n applicant who meets
the objective prerequisites for adjustment of status is in no way entitled to that relief.
Matter of Tanahan, 18 l&N Dec. 3 39 (BIA 1981) (emphasis added); seell. also .filn9h
-
_ _ -& Formatted: No underline
- Formatted: No underline
v. Holder, 643 F.3d 1178, 1181 ( 9th Cir. 2011); Thomaidis v. INS, 431F.2d 711; (9th
Cir. 1970), cert. denied, 401 U.S. 954 (1971); Matter of Blas, 15 l&N Dec. 62 6 (A.G.
1976).
A foreign n ational seeking adjustment of status bears the burden of

- ( Formatted: No underline
showing why administrative discretion should be exercised in his favor. See B_ls.
.
supra. The "extraordinary discretionary relier of adjustment "can only be granted in
meritorious cases." Id. at 630.
,, f
In the absence of adverse factors, adjustment will ordinarily be granted as
_J
Formatted: No underline
a matter of discretion. See Arai, 13 l&N Dec. at 496. However, where adverse fadors
- Formatted: No underline
----..
are present in a given application, it may be necessary for the applicant to offset these
by a showing of unusual or outstanding equities. Generally, favorable fadors such a s
family ties, hardship, length of residence in the United States, and other factors, will be
considered as countervailing factors that may warrant a conclusion that an applicant
merits a favorable exercise of discretion. Id. at 495-96.
In Torres-Valdivias v. Holder, 786F.3d 1 147 (9th Cir. 2015), the 9th-Ninth
Circuit Court of Appeals, under whose jurisdiction this case arises, considered a
decision of the Board of Immigration Appeals upholding a discretionary denial of an
application for adjustment of status. The applicant in that case had been convicted of
sexual battery under CPC 243.4(a), a statute that is similar, but not identical, to the
A071-575-904 6 September 1, 2016

s tatute under which the respondent in this case was convicted. The Ninth Circuit, in
Torres-Valdivias, concluded that the Board had not aif:eG-erred where, in making its
discretionary determination, it applied a standard set forth by the Attorney General in
Matter of Jean, 23 l&N Dec. 373 (A.G. 2002). Under that standard, the Attorney
General disclosed that he will not exercise his discretion favorably with respect to
violent or dangerous individuals except in extraordinary circumstances, such as those
involving national security or foreign policy considerations, or cases in which a foreign
national clearly demonstrates that the denial of status will result in exceptional and
I Formfttecl: No underline
extremely unusual hardship. .a Torros ValElivias. 789 F.3EI at 1152 53, fer its part,
. . - . . -
FefeFFeEI to applieaRts ElOA'listeEI of a violeFit er ElaAgera1:1s sFimes."
AifHere, the Court finds it unnecessary to determine whether the
respondent, to demonstrate that he merits a favorable exercise of discretion, must
satisfy the "t:teigt:tt aRet "heightened standard set forth in Matter of Jean and Torres
'Jaldivias. The Court finds... irrespective of whether this height anelheightened standard
or the lesser standard set forth in Matter of Arai et al. is applied, that the respondent has
failed to satisfy his burden of proving that he merits a favorable exercise of discretion.
The Court finds that the favorable factors presented in this case, which are significant,
are nonetheless outweighed by adverse factors presented in this case.

--1 Formatted: Indent: First line: 1"
The Court concludes that it would not be a responsible exercise of the
Attorney General's discretion to regularize this applicant's status and welcome him into
the community of the United States of America as a lawful permanent resident.
Needless to say, the court does not arrive at this conclusion lightly.
i TorresVald1vias. 786 f.3d at 115253. for its part. referred to applicants con111aed of "a violent or dangerous
gimes."
A071-575-904 7 September 1, 2016

. [ :

Keep wtth next, Keep lines
A. Favorable Equities
The respondent has longstanding presence in the United States, since
August 1991, albeit under circumstances in which all of that presence, save for
approximately a month and a half before he overstayed his visa, has been in unlawful
status. The respondent's Ieng stanaing longstanding presence in the United States is a
favorable equity.
Although his parents apparently remain in Guatemala, the respondent
entered the United States at approximately age 18, and is now 43 years old. Any
transition back to Guatemala at this stage of his life would be challenging and obviously
would require readjustment on the respondent's part. The Court takes this very
seriously.
The respondent has significant family ties in the United States. His wife,
Yesenia. E1:1einia [i:il<leneti6), is a United States citizen. They married in 2009, while the
respondent was in proceedings, and she was aware at the time that the respondent's
removal was possible..., _Still, she thought so much of him that she opted to marry him
and start a family together. Yesenia testified with words to the effect of... "I really
love this man, he has been very supportive to me." She added that she was
"devastated" when she learned of his history of committing sexual battery.
I Nonetheless, she has foFGibly forcefully stood by him, explaining that the person she
now knows is a moral and responsible man. The Court affords significant weight to the
respondent's relationship with his wife and their interest in maintaining their relationship
.. (ttec1: No underl_
I together in the United States in the same manner that they do today. Wang v. INS,
tne _____ _,
622 F .2d 1341, 1346 (9th Cir. 1980) (emphasizing that equities arising after
commencement of proceedings, but prior to entry of a final order, are entitled to full
I weight unless they are part of a "calculated purpose" to delay or avoid removal},
AO?l-575-904 8 September 1, 2016

reversed on other grounds, 450 U.S. 139 (1981); accord Alcocer v. INS, 49 F. App'x
161, 164 (9th Cir. 2002). AsooF9 The Court affords full weight to these equities.
The respondent has a stepson, Nathan, age 14, and a biological son,
Samuel, age 5. Nathan has never known his biological father. To his substantial credit,
the respondent has treated Nathan as his own. He spends time with him and plays_
soccer with him. Yesenia testified that the respondent undertook to explain
puberty to Nathan. The favorable influence that the respondent has played in Nathan's
life is an equity that the court has considered.

.. .
( Formatted: Indent: First line: 0.5"
The respondent's biological son, Samuel, has encountered significant
.
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developmental difficulties. See Exhibit 4L at p. 103-109; Exhibit 4P-4Q. He has
---,. - . Formatted: No underline
. Formatted: No underline
encountered cognitive delays. ---,.
See Exhibit
-- - -
4L at- p.- 105. He has required
- -
occupational
-
therapy, owing to differences in auditory processing, tactile processing, and probable

I differences in a vestibular and oral sensory p rocessing. Exhibit 4L at_ p. 108. _
.
Among other things, Samuel has struggled with childhood obesity, trouble swallowing,
I episodic instances of choking, and asthma. At a merits hearing, e1:1siniaYesenia initially
testified that she was hopeful that Samuel was not autistic. The Court, however,
afforded the respondent a continuance so that Samuel could be further evaluated.
Regrettably, further evaluation disclosed that Samuel, among other things, suffers from
.. ( Formatted: No undertine
autism spectrum disorder. See Exhibit 40.
---,.
IE1:1siniaYesenia described in compelling fashion some of the struggles that
Samuel faces. She explained that the respondent, a long-haul truck driver.. is "hardly
home... owing to the demands of the job. This leads her to care substantially for

Samuel. e1:1siniaYesenia explained that Samuel is not as independent as other children
his age. By way of example, he needs assistance brushing his teeth or doing simple
things like opening a juice pouch. Samuel also has significant allergies to a variety of
AO?l-575-904 9 September 1, 2016

foods, including eggs, carrots, peas, and other foods. The situation is significant
enough that the family is required to maintain an epi penEpiPen for him. The asthma Is
significant enough that Samuel requires a daily nebulizer. Obviously, Samuel's
4
condition presents an extremely c ompelling equity.-
The respondent and Yesenia both testified that if the respondent is
removed from the United States, Yesenia and the children will remain behind.
E-l:IGiAiaYesenia forcefully explained that "this is our country. Of course, she is
absolutely correct about that. As such, the Court has considered the very compelling
equity that removal of the respondent will result in separation of a respondent from his
wife and children. El:1GiAiaYesenia testified that given her income and work schedule, it
would be difficult.. at least at the beginning, to regularly visit the respondent i n
Guatemala. This, too, i s a significant factor that the court has considered.
. . ( Formatted: No Wldertlne
As noted, the respondent is employed as a truck driver. Exhibit 5.
He has not disclosed his criminal history to his employer. He testified that this is
because it was not required by his employer. The respondent's employment is a

. {j!lmatteci: No underline )
favorable equity. Yesenia's employment, see. Exhibit 6, is also a favorable
equity, particularly given the service to the community that she provides as an
instructional assistant with a local school district. The respondent has appeared to have
Exhibit 7.
'
paid taxes. This is a favorable equity.
The Court has considered the financial strain that the respondent's
removal may place upon his family. EYainiaYesenia's work is part-time and she
estimates that currently the respondent makes approximately 80 percent of the income
for the family. he testified that in the event the respondent is removed, she may have
to take a second job. To be sure, doing so would limit the time she has available for
Nathan, too, suffers from asthma.
AO?l-575-904 10 September 1, 2016

other tasks, including attention to her children. e1:1eiAiaYesenia testified that she would
not divorce the respondent and that she does not believe in divorce.
Both the respondent and e1:1siAiaYesenia are heavily involved in their local
church. The respondent, by way of example, has volunteered as a sound engineer for
the church. The Court concludes that these community activities present favorable
5
equities.
The Court has considered evidence of country conditions, including those
disclosed in the United States Department of Homeland Security Country Report on

. [ Formatted: No underline
Human Rights Practices for Guatemala for 2006. ---,.
See Exhibit 11.- Among other
.
things,
..
it appears evident that country conditions in Guatemala are generally less favorable
than those in the United States. The country background report reflects that Guatemala
struggles in confronting crime, sometimes without success, and has an uneven human
rights record. Earning a wage consistent with the ways af wages the applicant has
earned in the United States would present significant hurdles. Furthermore, to the
extent that country background evidence reflects that Guatemala can be a dangerous
place, this may impact the extent to which family members may visit the respondent in
Guatemala. Of course, financial limitations may also play a part in this. The Court has
considered all of this.
The Court has considered that the respondent has no additional
convictions since the time of the sexual battery conviction... -although, as described

below, see infra, thereJi_!&-the very troubling circumstance in which the respondent
5 Of course, a person's decision to participate In a religion, or no religion at all, is a deeply p ersonal one. By
considering the respondent's church-related activities and that of Yesenia, as favorable equities, the Court
does not mean to Imply that other applicants who may not be involved In a religion might somehow be
disadvantaged. Rather, the Court has considered the church-related activities as demonstrating a tie to the
community and a contribution to the community. Similar ties and contributions may be made by other applicants
in any number of ways.
AO?l-575-904 11 September 1, 2016

purposefully misrepresented his address in registering as a sex offender. The Court
considers as a favorable equity the fact that the respondent ultimately disclosed his
correct address to state authorities and moved out of his prior home, albeit only after his
misrepresentations, and their potentially adverse consequences. were disclosed at a
merits hearing during the course of his removal case.
The Court has considered that the respondent has completed at least 30-
.. (Formatted: No underline
plus sexual compulsion classes. See Exhibit 4H at p. 71. This is a favorable equity.
--....
The Court has considered that the respondent has testified that he is now
"ashamed" of his prior behavior. To the extent that this may represent some remorse, it
is an equity. Still, it bears comment that the respondent, on cross examination, testified
that he made a mistake by pleading guilty, adding words to the affect that "my mistake
was not having fought it." While protesting, on the one hand, that his actions did not go
much beyond touching the victim's shoulder, he also aeRGeeles conceded that instead of
continuing into the store outside of which he encountered the victim, the respondent
turned around and fled the scene. He testified that when the victim began hitting him to
protect herself, "that's when I ran."
With respect to rehabilitation, cf. Rashtabadi v. INS, 23 F.3d 1562 (9th Cir.
1994), the Court recognizes that the respondent has not been convicted of any criminal
offense since the sexual battery offense, and that he has completed 30-plus classes
concerning sexual compulsion. This presents some evidence of rehabilitation. This is
diminished somewhat by the respondent's purposeful decision to misrepresent his
address when registering as a sex offender with the State of California, such that for a
significant period he was residing in a location in which he concedes he would not have
been permitted to reside. The respondent only corrected this upon being confronted
with this during the course of his removal proceedings.
A071-575-904 12 September 1, 2016

B. Adverse Factors
The respondent's criminal conviction for sexual battery is an extremely
_]
[Formatted: No underline J
sexual abuse. Exhibit 8. At the time of the respondent's conviction, the term
. -
"intimate part" was defined as meaning the sexual organ, anus, groin, or buttocks of any
person, as well as the breast of any female. Id.
QuestionediRg about the criminal offense during direct examination, the
respondent testified with words to the atteGt-effect that, "I was arrested because of
sexual assault. The respondent testified that this arose from circumstances in which
he approached the victim as he was entering a store, and as she was leaving it. He
found her to be "pretty" and "wanted to embrac e her. He later added that he was
"captivated by her beauty."
Upon being assailed by the respondent, the victim yelled "ah" and began
hitting him with her purse, a reaction that the respondent attributed to his having
"touched her without her permission and without knowing her." The respondent testified
that his victim appeared to be genuinely frightened because "a total stranger was
touching her.
On cross examination, however, the respondent insisted that he had
touched only the victim's shoulders, and not any other body parts. This is inconsistent
with the statute under which the respondent was convicted, which, in order for a
conviction to obtain, required that he touched the sexual organ, anus, groin, buttocks, or
I breast of the victim. See Exhibit 8. Asked to xplain this discrepancy, the respondent
continued to insist that he had not touched any of these body parts in any manner. He
A071-575-904 13 September 1, 2016

added words to the affect that "my mistake was not having fought the criminal charge.
tted: Indent: First line: 1
The respondent initially testified that immediately following the Incident, he ..
walked home at a normal pace, adding words to the affect that "I didn't think it was
anything serious." Nonetheless, he ultimately conceded that he did not proceed to enter
the food store, as originally planned, but that aRel then instead, he "ran."
The respondent conceded that he gave a false name, Miguel Sanchez, at
the time of his arrest.6 Asked why he provided a false name to police, the respondent
initially answered that he was neivous, and that this was the first thing that came to his
mind. Following additional questioning on this point, the respondent ultimately
conceded that he provided a false name because he hoped that if he did not give police
his correct name, the police might allow him to go. The Court finds that the
respondent's purposeful decision to provide a false identity to the police upon his arrest
is an extremely adverse factor. The community has a compelling interest in the ability
of its police to protect the community. The respondent's decision to provide false
information to the police upon his arrest for what culminated in a conviction for sexual
battery may have operated to undermine that interest.
The Court has considered the existence of the respondent's conviction
itself, as well as the respondent's explanation of the behavior that lead to the conviction.
The Court condudes that the respondent's testimony that he only touched the victim's
shoulder is inconsistent with the four corners of the statute under which the respondent
was convicted, which required that, against the victim's will, for the specific purpose of
sexual arousal, sexual gratification, or sexual abuse.._.-he touched the victim's sexual
organ, anus, groin, buttocks, or breast et the 1istim. Under the facts and circumstances
6 The disposition records, Exhibit 41 at p. 70, in this case refer to the respondent as "Mi$uel Sanchez.n _The ( Formatted: No underline J
respondent concedes that the disposition records refer t o him and a california Department of Justice record,
I .fxhibit 41 at pp. 68-69, appear to confirm _this. lFormatted: No underline
- - _J
AO?l-575-904 14 September 1, 2016
of this case, the Court makes an explicit finding that the respondent has provided an
.-- (Formatted: No underline
incredible account of the events that led to his conviction. Matter of M-H-, 26 l&N
Dec. 46 (BIA 2012) (upholding Immigration Judge's finding where aA-lmmigration Judge
credited conviction over applicant's protestation s that he only pleaded guilty to bring
criminal proceedings to a conclusion). 7
The Court finds that the respondent's sexual battery of the victim,
requiring that, for the purpose of sexual arousal, sexual gratification, or sexual abuse,
the respondent, against the victim's will, actually touched the victim's sexual organ,
anus, groin, buttocks, or breast, is an extremely adverse factor. "Sexual abuse ... is
universally condemned by Americans of conscience, not merely because it is wrong, but

_ . ( Formatted: No underline
because its evil tendrils are detrimental to society."
See Gonzalez-Cervantes
... v. Holder,
. . -
-

. . .
709 F.3d 1265, 1270 (9th Cir. 2013) (quoting with approval Efaqene v. Holder, 642 F.3d
918, 926 (10th Cir. 2011) (O'Brien, J., concurring in the result)). Plainly, the
respondent's victim ought to have enjoyed the "privilege of choosing" whether and with
whom she shared intimacy... and the right to live in hertAe community without being
7 The Court emphasizes that even if it had not made an adverse aedlbility determination concerning the
of the
respondent's description of events that led to his conviction for sexual battery, It still, on the basis
conviction itself, and o ther factors described herein, upon balancing all the equities and all the adverse factors
present in this case, would have concluded that the respondent has failed to satisfy his burden of proving that he
merits a favorable exercise of discretion. There was some discussion and argument among the attorneys
concerning whether the respondent should have been required to provide a police report describing the e vents
that culminated in his arrest. Of course, any determination concerning the admissibility of such a report, and, if
admitted, the relative weight to be afforded such a report, could be made only on a case by case basis after
examining the document itself and the argument of the parties, as well as the applicant's testimony. Ultimately,
the respondent, through counsel, advised the court that he did not seek further continuance to attempt to locate
and provide a police report. The Court has not considered the absence of a police report in its deliberations. At
multiple junctures throughout the proceedings, the Court advised the parties that It would consider evidence
provided by them. Proceedings were adjourned on multiple occasions, at times to allow the parties to provide
additional evidence. In any case, the Court wishes to emphasize what It does not find: the Court does not find
that the respondent has failed to satisfy his burden of proof because he has failed to present a police report. The
Court does not find that the absence of a police report Is somehow probative of anything in this case. The Court
has e valuated the case based upon the evidence that has .!ltt!s!.. ubmltted, not t=ffe..evldence that has not been
submitted.
A071-575-904 15 September 1, 2016

8 . (!Cii1i:iattect No underline
assailed sexually. See Coker v. Georgia, 433 U.S. 584, 597-98 (1977).
--.. . .
The respondent conceded that the victim was "frightened" when she was
accosted by him. The respondent added words to the effect that "I think that
emotionally she felt offended." Viewed from her perspective, forced to fend off the
respondent with nothing but her pocketbook, it is plain that the victim of the
respondent's sexual battery endured a violation .of her fundamental interest in the
sovereignty and security of her person. Cf. Matter of Edwards. 20 l&N Dec. 191, 198-
99 {BIA 1990) {denying section 212(c) relief, despite demonstration of unusual or
outstanding equities, including "the special hardship that the respondent autistic child
[one of four Unite d States citizen children] may suffer from a separation," where the
applicant had multiple convictions for controlled substance distribution).
Owing to his sexual battery conviction, the respondent was required to
register as a sex offender with the State of California. It is uncontroverted, however,
that the respondent, for a period of years - including during much of these removal
proceedings - purposefully misrepresented his address to state authorities, falsely
indicating that he was living more than an h our away by car from his true a ddress,
where he was not permitted to reside, owing to his sexual battery conviction.
Asked to explain this, the respondent, initially, was not entirely forthright.
He first testified with words to the affeGt effect that; just days before his merits hearing,
he had registered with the wrong address because "the detective was on vacation and it
was easy for me to just register." However, the evidence disclosed that the respondent
had registered with the false address for several years.
1 Although Coker involved the more serious offense of rape, Its discussion regarding the privilege of any woman to ( Formatted: Uncler11ne
choose with whom she shares Intimacy is properly considered in the sexual battery context as well. Certainly, this
respondent's victim, by all rights, enjoyed the privilege of personal sovereignty over her own "intimate parts," a
privilege that the respondent._+against the victim's will, chose to violate.
A071-575-904 16 September 1, 2016

( Fonna tted: Indent: First line: 1"
Confronted with this fact, the respondent testified that he was not hiding
anything from authorities, but that he was simply "embarrassed" to give the correct
address. Only after more follow-up did the respondent disclose that he had provided
the wrong address at least in part because providing the correct address would have
iAter:fereEl prevented him from residing where he currently lived. witl=l l'lis 61::1FFeAt li1iAg
arrangefflent. The respondent explained with the words to the affeGt...effect that "if they
know that I am a sex offender, they are not going to rent me the place that I am living,"
and confirmed that this was a reason why he provided the false address.
The Court concludes that the respondent's purposeful misrepresentation
to California State authorities concerning his address during his yearly registration as a
sex offender is an extremely adverse discretionary f actor. The California Sex Offender
- (<..;Fot ==o)
I Registration Act, see CPC 290, applies automatically to certain enumerated offenses,
,
nn.;,,;
_;;;_;,; a,;;c; ; tted : Underl=;;.;.i.;,,;
;:.c:,:__
ne:c__
;
___
and imposes on e ach person convicted a lifelong obligation to register. It is intended to
promote the state interest in controlling crime and preventing recidivism in sex
- ( Formatted: No underline
I offenders." Wright v. Superior Court, 936 P.2d 101, 104-05 (G:aleal. 1977). _
As repeatedly emphasized by the Supreme Court of California, "[t]he
purpose of section 290 is to assure that persons convicted of the crimes enumerated
therein shall be readily available for police surveillance at all times because the
Legislature deemed them likely to commit similar offenses in the future." The California
Legislature "perceives that sex offenders pose a continuing threat to society," and the
registration requirement is designed as a means of ensuring that offenders are readily
available for police surveillance."

( Formatted: Indent First line: l"
The registration requirement is reflective of the State of California's
recognition that sex offenders represent a "persistent and palpable threat to society
and that they "require constant vigilance." Id. at 104-05. The statute imposes a
AO?l-575-904 17 September 1, 2016

continuing duty to give required notification of any change of address, and violation in
that duty is a continuing offense. A p erson does not commit this crime only at the
particular moment the obligation arises, but every day it remains unsatisfied. Id.
The respondent's unilateral decision to misrepresent his address to state
authorities when registering as a sex offender operated to contravene much of the
purpose of the statute itself. Deemed a continuing threat to society by the State of
California, the respondent, through purposeful action, deprived the state of an important
tool designed specifically for purposes of protecting the community. The Court
concludes that this is an extremely a dverse discretionary factor.
The Court recognizes that, after the respondent's duplicity was disclosed,
at a merits hearing on his adjustment application, the respondent alerted authorities, re
registered, Exhibit 4K, .4R, and moved out of the community in which, according to
ffrmatted: No underline
Formatted: No underline
his testimony, he was unauthorized to live in the first instance. While crediting the
respondent for taking these measures, the Court concludes that this does little to
counteract the extremely adverse nature of the respondent's actions in purposefully
providing incorrect information previously when registering as a sex offender.
The adverse nature of these actions is amplified by the respondent.'.
persistiAg persistence in maintaining a false sex offender address with state authorities
during the course of his removal proceedings in Immigration Court. Cf. Correia v. INS,
59 F.3d 174 (9th Cir. 1994) (table) (finding that applicant's continued use of illegal drugs
during deportation proceedings was an adverse discretionary factor); Nava-Placeris v.
INS, 26 F.3d 134 (9th Cir. 1994) (table) (finding that IJ did not err in denying
discretionary waiver, even where applicant had been present in the United States since
he was six months old and had a teenage son and infant daughter, where, among other
things, he had a criminal history, and was arrested during the pendency of deportation
AO?l-575-904 18 September 1, 2016

9
proceedings).
At the same time that the respondent was actively requesting a favorable
exercise of the Attorney General's discretion - indeed. , iAdeed, just days before a
continued merit's hearing - the respondent undertook to misrepresent his addresl?
( Formatted: No under1ine
during his registration as a sex offender. See Exhibit 9. The State of California already
---a. - -- .. . . - . - . . -
has determined that as a sex offender, the respondent may present a "continuing threat
to society," Wright, supra, yet, while proceeding with his adjustment application in
Immigration Court, the respondent unilaterally and purposefully acted in a mattei:
manner operating to deprive the State of a California of a means to monitor that threat.
This is an extremely adverse factor.
C. Balancing of Equities against Adverse Factors
The Court has considered the respondent's favorable equities and
balanced them against the adverse factors in this case. The Court finds, regrettably,
that the adverse factors substantially outweigh the favorable factors, and concludes that
the respondent has failed to satisfy his burden of proving that he merits a favorable
exercise of discretion. Accordingly, the application for adjustment of status is denied.

, ( l'ormatted: Under1tne
As noted, supra, the Court does not reachmake this decision lightly. It is
" _ _ _
the respondent who requests that he be afforded lawful permanent resident status. As
recognized by the 9th-Ninth Circuit Court of Appeals, "[g]aining a lawful foothold in
America is an incalculable benefit. It sets an immigrant on the path to a peaceful life in
a free society, economic prosperity, citizenship, and the opportunity to bring the family
-:No under1ine
members in due course." See Angov v. Lynch, 788 F .3d 893, 901 (9th Cir. 2015).
. ---a. .
9 To the extent that the Court cites decisions that are unpublished or otherwise non-precedentlal, the Court
emphasizes that it does not cite these decisions as binding precedent. The Court recognizes the difference
between what is precedentlal and non-precedentlal. The Court cites these decisions merely as an Illustrative of Its
independent reasoning In this case, nothing more.
A071-575-904 19 September 1, 2016

The Court appreciates that the result that obtains, by which the Court has
declined to regularize the respondent's status, "may Involve hardship to himself and
certainly much unhappiness for his family-:-" .Yf*However. "the responsibility for this
result rests with the respondent alone." See Matter of Ceehle [sis)Coelho, 20 l&N Dec.
r--- . . . . . . .
464, 470 (BIA 1992); Matter of Cerna, 20 l&N Dec. 399, 404 (BIA 1991) ("the
responsibility of the hardships and difficulties that this respondent and his family may
face rests squarely on the respondent's shoulders").
II. Asyl um . Withholding of Removal. CAT Protection. and NACARA
At a hearing on May 5tR, 2014, the respondent formally withdrew his
applications for asylum, withholding of removal under the INA, CAT protection, and
( Formatted: Underline
special rule cancellation of removal under NACARA. As noted, supra, with respect to
,
the NACARA application, the respondent did not enter the United States or file an
asylum application by the dates required to demonstrate NACARA eligibility. The Court
recognizes withdrawal of these applications.
Ill. Voluntarv Departure
As an alternative form of relief, the respondent seeks voluntary departure
10
pursuant to INA 240B(b). The respondent appears statutorily eligible to apply for
voluntary departure. Although the Department of Homeland Security, at one juncture of
the proceedings, argued that voluntary departure should be denied in the exercise of
discretion, it ultimately stated, at the hearing on September 1, 2016, that it would not
oppose voluntary departure. The Court finds that for purposes of this limited application
for relief, that the respondent merits a favorable exercise of discretion.
At the hearing on September 1, 2016, the Court, at great length, explained
ID Wishl ng to preserve the opportunity to appeal the Court's decision, the respondent does not seek voluntary
departure prior to the conclusion of proceedings pursuant to INA 240B(a).
A071-57 5-904 20 September 1, 2016

to the respondent certain conditions being placed upon his voluntary departure grant.
The Court explained that the respondent enjoyed the right to accept or reject the
conditions on his voluntary departure grant, and that in either event , he retained the full
right to appeal the Court's decision to the Board of Immigration Appe als. Although
initially expressing some concern about these conditions, the respondent, after being
afforded an addition al opportunity to consult with counsel, confirmed with the Court that
he accepted the conditions on the voluntary departure grant. The Court had the
opportunity to observe the respondent's demeanor and responsiveness throughout this
colloquy. The Court concludes that the respondent has made a knowing, voluntary,
meaningful, tactical judgement to accept the conditions on his voluntary departure
grant.11
Voluntary departure is granted through October 31, 2016, conditioned
upon posting a voluntary departure bond in the amount of $500 with the Department of
Homel and Security, Immigration and Customs Enforcement, Field Offic e Director, no
later than September 9, 2016, with an alternative order of removal to Guatemala.
ORDER
For all the foregoing reasons, it is hereby ordered that the respondent's
application for adjustment of status under INA 245 is denied.
It is hereby further ordered that the respondent's application for as ylum is
withdrawn.
It is hereby further ordered that the respondent's application for
withholding of removal under the INA as to Guatemala is withdrawn.
It is hereby further ordered that the respondent's application for protection
11
The respondent also wlll be provided with a w ritten version of the oral advlsals that were provided to him
regarding voluntary departure. That written advlsal will be att ached to the short-form order memorializing the
Court's decision, and is incorporated by reference therein.
A071-575-904 21 September 1, 2016

under Article Ill of the United Nation's Convention Against Torture as to Guatemala is
withdrawn.
It is hereby further ordered that the respondent's application for special
rule cancellation of removal under NACARA is withdrawn.
It is hereby further ordered that the respondent's application for voluntary
departure pursuant to INA 240B(b) is granted through October 31, 2016, conditioned
upon posting a bond in the $500 with the Department of Homeland Security,
Immigration and Customs Enforcement, Field Office Director, no later than September
9, 2016, with an alternative order of removal to Guatemala.
Please see the next paae for electronic

signature
PHILIP J. COSTA
Immigration Judge
September 1, 2016
AO?l-575-904 22 September 1, 2016

//s//
Inunigration Judge PHILIP J. COSTA
costap on December 23, 2016 at 10:04 PM GMT
A071-575-904 23 September 1, 2016

Roderico Geronimo Tzum-Sum, A071 575 904 (BIA Aug. 18, 2017)

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U.S.

Executive Office for Immigration Review

Board ofImmigration Appeals

5107 Leesburg Pike, Suite 2000

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Name: TZUM-SUM, RODERICO GERONI... A 071-575-904

Date of this notice: 8/18/2017

For more unpublished BIA decisions, visit

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

Falls Church, Virginia 22041

File: A071 575 904 - Los Angeles, CA Date:

In re: Roderico Geronimo TZUM-SUM AUG 1 8 2017

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ON BEHALF OF RESPONDENT: Diego J. Weinsetel, Esquire

APPLICATION: Adjustment of status

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net

File: A071-575-904 September 1, 2016

RODERICO GERONIMO TZUM-SUM IN REMOVAL PROCEEDINGS

CHARGE: INA 237(a)(1)(B)

ON BEHALF OF RESPONDENT: Alfonso Morales

ON BEHALF OF OHS: SaFEIR OlseRSirin Ozen Hallberg and Adam Perleaff

ORAL DECISION OF THE IMMIGRATION JUDGE

This is the oral decision of the Immigration Judge. It is an oral decision

being issued contemporaneously from the bench.

At iss1:1aRGe issue in this case is whether the respondent, an

denies the application for adjustment of status.

The respondent, alternatively, has request post-conclusion voluntary

business days of service of today's order, with an alternate of removal to Guatemala.

At a hearing on September 1, 2016, the court provided the parties with a

oral decision, and is incorporated by reference herein.

All exhibits are in evidence.

A071-575-904 2 September 1, 2016

The respondent is a 41 year-old native and citizen of Guatemala. He is a

registered sex offender, a consequence of having been convicted of sexual battery in

violation of California Penal Code _243.4(d}(1}.

The respondent was admitted to the United States on a 82 visitor's visa

Removal proceedings were commenced with the filing, on April 8, 2008, of

At a hearing on September 17, 2014, the respondent designated

As relief and protection from removal, the respondent initially requested

A071-575-904 3 September 1, 2016

In lieu of these withdrawn applications, the respondent filed the application

voluntary departure at the conclusion of proceedings pursuant to INA 240B(b).

THE RESPONDENT'S CRIMINAL HISTORY AND

HIS MISREPRESENTATIONS CONCERNING SEX OFFENDER REGISTRATION

On or about July 31, 1998, the respondent was convicted of sexual

The respondent was sentenced to a suspended sentence of 60 days in county jail,

As a consequence of this conviction, the respondent has been required to

was purposefully misstating his address to California State authorities.

A071-575-904 4 September 1, 2016

misstatement of his address was attributable to his embarrassment." the

After this was disclosed, the respondent, in advance of the next

The respondent testified that after his misrepresentations to state

authorities concerning his address were disclosed in immigration proceedings, he

ANALYSI S: FINDINGS OF FACT AND CONCLUSIONS OF LAW

status should be adjusted from undocumented to that of a lawful permanent resident of

A071-575-904 5 September 1, 2016

A foreign n ational seeking adjustment of status bears the burden of

meritorious cases." Id. at 630.

by a showing of unusual or outstanding equities. Generally, favorable fadors such a s

considered as countervailing factors that may warrant a conclusion that an applicant