Client had a conviction from 1988 for the crime of Manslaughter in violation of Florida Statute 782.07(1). Client was detained by Immigration and Customs Enforcement in 2013 following a renewal of his ...permanent resident card. Client was granted bond, released from detention and ultimately his proceedings were terminated upon our Motion to Terminate filed with the Immigration Court arguing that Manslaughter (Florida) is not an aggravated felony "crime of violence" as it involves least culpable conduct of "culpable negligence", and therefore is under the categorical approach not a crime of violence. Client was able to retain Lawful Permanent Resident status.
Immigration
Adjustment of Status with I-601 Waiver
Jan 01, 2012
OUTCOME: Adjustment of Status/ LPR status granted.
Client entered using refugee travel document belonging to another person (Fraud/misrepresentation). Client married to a U.S. citizen with 1 U.S. citizen child and another on the way. Client did not ret...ain I-94 given at entry. Ultimately proved entry after inspection, and established wife would suffer extreme hardship if applicant unable to remain in the U.S.
Immigration
Adjustment of Status with I-601 Waiver
Jan 01, 2012
OUTCOME: Adjustment of Status/LPR status granted.
Client last entered the U.S. through fraud under the SAW (agricultural worker) program. Also had old conviction for fleeing and eluding. Client married to a U.S. citizen and owned several businesses an...d real estate holdings. Client intially under removal proceedings following denial of an Asylum application. I-130 Petition filed by his wife approved, removal proceedings subsequently terminated, and ultimately Adjustment of Status (I-485), Hardship Waiver (I-601) approved, and client granted lawful permanent resident status.
Immigration
Appeal- Motion to Reopen
Jan 01, 2010
OUTCOME: Appeal sustained- deportation order reopened
ON BEHALF OF RESPONDENT:
William M. Cavanaugh, Esquire
ON BEHALF OF DHS:
Frieda M. Goldstein
Assistant Chief Counsel
OPINION:
IN REMOVAL PROCEEDINGS
APPEAL
CHARGE:
Notice: Se...c. 237(a)(1)(B), I&N Act [8 U.S.C. § 1227(a)(1)(B)]--In the United States in violation of law
Sec. 237(a)(1)(C)(I), I&N Act [8 U.S.C. § 1227(a)(1)(C)(I)]--Nonimmigrant--violated conditions of status
APPLICATION: Reopening
The respondent has appealed the Immigration Judge's September 13, 2010, denial of a motion to reopen proceedings in which the respondent was ordered removed in absentia, pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a (b)(5)(A). The appeal will be sustained and the record remanded for further proceedings.
We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. § 1003.1 (d)(3)(I), (ii).
The Notice to Appear (NTA) [*2] was mailed on May 14, 2009, by regular mail to the respondent at "6035 Duval Street, Hollywood, Florida 33024." The address did not contain the respondent's apartment number, which was reflected in the Form I-485 (Application to Register Permanent Residence or Adjust Status), filed on September 28, 2008.
A removal hearing can proceed without the alien's attendance, despite that written notice was not delivered, if delivery was attempted at the last address provided by the alien under section § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F). See Matter of G-Y-R-, 23 I&N Dec. 181, 186-87 (BIA 2001) (en banc). The Board has held that an address qualifies as a section 239(a)(1)(F) address only if the alien has been informed of his statutory address obligations and the consequences of failing to provide a current address. Id. at 187 . The respondent on appeal denies having ever received the NTA. Nor does the record contain any evidence which would indicate that the respondent received the NTA by other means. In view of the erroneous address used in mailing the NTA, the respondent cannot be charged with receiving [*3] the NTA, and we find reopening warranted.
ORDER: The appeal is sustained.
Immigration
Appeal- Cancellation of Removal (Non-LPR)
Jan 01, 2009
OUTCOME: Remanded (ultimately battered spouse Cancellation of Removal granted)
COUNSEL: [*1]
ON BEHALF OF RESPONDENT:
William M. Cavanaugh, Esquire
OPINION:
IN REMOVAL PROCEEDINGS
APPEAL
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)...(6)(A)(i)] Present without being admitted or paroled
APPLICATION: Cancellation of removal; voluntary departure
The respondent has appealed from the Immigration Judge's decision dated March 2,2007.. The Immigration Judge denied the respondent's applications for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act (the ''Act'') and voluntary departure. The appeal will be sustained, in part, and the record will be remanded for further proceedings consistent with this order.
We disagree with the respondent's assertion that the Immigration Judge erred by failing to admit evidence regarding her good moral character and the hardship that her qualifying relatives would face if she was ordered removed. In that regard, the Immigration Judge correctly found that the respondent was statutorily ineligible for cancellation of removal under section 240A(b)(l)(A) of the Act because she failed to establish the requisite continuous [*2] physical presence ( I.J. at 4-5 ). 8 U.S.C. § 1229b(b)(l)(A). The respondent does not contest this finding on appeal. Since the respondent was statutorily barred from cancellation of removal because she failed to demonstrate the requisite continuous physical presence, it was unnecessary for the Immigration Judge to accept evidence regarding the superfluous issues of good moral character and hardship.
We do, however, disagree with the Immigration Judge's finding that, the respondent failed to demonstrate good moral character based on her 2006 conviction for ''reckless driving with injury.'' In that regard, the respondent's conviction under FSA 316 .192 is either a misdemeanor or a felony, depending on whether the injury was ''serious.'' If the respondent's conviction was a misdemeanor, the petty offense exception may apply. Even if it was not a misdemeanor, no legal authority exists for the proposition that the respondent's conviction constituted a crime involving moral turpitude, and we are not convinced otherwise that the respondent's offense is a crime involving moral turpitude. Hence, we will remand the record to the Immigration Judge [*3] for him to explore whether the respondent merits battered spouse cancellation of removal or voluntary departure as a matter of discretion.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained, in part.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with this order.
Panel Members: PAULEY, ROGER
FOR THE BOARD
Immigration
I-751 Hardship Waiver in removal proceedings
Jan 01, 2009
OUTCOME: Granted. DHS appeal dismissed.
ON BEHALF OF RESPONDENT:
William Cavanaugh, Esquire
ON BEHALF OF DHS:
Michele S. Vigilance
Assistant Chief Counsel
OPINION:
IN REMOVAL PROCEEDINGS
APPEAL
CHARGE:
Notice: Sec.... 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document
APPLICATION: Waiver under section 216(c)(4)
The Department of Homeland Security (''DHS'') appeals the Immigration Judge's decision, dated June 3, 2009, granting the respondent's request for a waiver under section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4). The DHS' appeal will be dismissed.
The DHS filed an appeal, arguing that the Immigration Judge erred in granting the respondent's Form 1-751. The DHS argues that the respondent has not met his burden to prove that the qualifying marriage was entered into in good faith. The DHS further argues that the Immigration Judge erred in finding that the respondent met his burden with respect to a hardship waiver because the respondent never sought -a hardship waiver in his petition. We find that both factors regarding a bona fide marriage and extreme hardship are before the Board currently.
In regard to the history and severity of the respondent's mental illness, it appears evident in his criminal records. The respondent pled guilty to offenses committed in October 2000 of assaulting, resisting or impeding certain officers or employees, and carrying a pistol without a license. The respondent was in possession of a gun and apparently was attempting to enter the White House grounds. The records note that, as special conditions of supervision, the respondent was to participate in a mental health program as directed by the Probation Office, to include inpatient treatment if deemed appropriate by the supervising Probation Officer, and to include taking any medication that the program directs him to take. This evidence indicates that the respondent's mental illness may have been diagnosed around the time of [*8] his criminal offenses in October 2000. The evidence of record demonstrates that the respondent's mental illness has required psychotropic medications as well as inpatient care at a crisis facility in 2005.. The evidence indicates that the respondent's caretakers are his father and his father's wife, who reside in the United States (Tr. at 94). There is no evidence regarding the assistance the respondent could get for his medical condition if he were removed to Jamaica. The evidence indicates that the respondent needs a caretaker to help insure that he takes his medications to try to control his mental illness.
After de novo review of the evidence, as noted above, we find that the Immigration Judge did not err in granting the respondent's Form 1-751, based on evidence that extreme hardship would result to the respondent if he is removed to Jamaica. In light of this determination, we need not also review whether the Immigration Judge erred in granting the petition based on whether the respondent demonstrated a good faith marriage. Accordingly, the DHS appeal is dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.1(d)(6) [*9] , the record is remanded to the Immigration Judge for the purpose of allowing the DHS 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).
Panel Members: Guendelsberger, John
