M

Parada, Tony E., Esq.

Law Ofice of Tony E. Parada
3401 Louisiana Street, Suite 280
Houston, TX 77002
Name: ESQUIVEL-JIMENEZ, RODRIGO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrgi11ia 2204/
OHS/ICE Ofice of Chief Counsel SNA
P. 0. Box 1939
San Antonio, TX 78297-1939
A09097 4844
Date of this notice: 4/11/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Greer, An e J.
Pauley, Roger
Sincerely,
Donna Car
Chief Clerk
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Cite as: Rodrigo Esquivel Jimenez, A090 974 844 (BIA April 11, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
ESQUIVEL-JIMENEZ, RODRIGO
A 090-97 4-844
566 VETERANS DRIVE
PEARSALL, TX 78061
Name: ESQUIVEL.JIMENEZ, RODRIGO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesbur Pike, Suite 2000
Fals Church, Vrinia 12041
OHS/ICE Ofce of Chief Counsel SNA
P. 0. Box 1939
San Antonio, TX 78297-1939
A09097 4-844
Date of this notice: 4/11/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been sered with this
decision pursuant to 8 C.F .R. 1292.5(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Cole, Patricia A.
Greer, Anne J.
Pauley, Roger
Sincerelv.
DO c t
Donna Carr
Chief Clerk
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Cite as: Rodrigo Esquivel Jimenez, A090 974 844 (BIA April 11, 2011)
. ,
..
U.S. Dpartment of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Fails Church, Virginia 22041
File: A090 974 844 -Laredo, T
In re: RODRIGO ESQ UIVEL JIMENEZ
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Tony E. Parada, Esquire
ON BEHALF OF OHS:
CHARGE:
Caren A. Leal
Assistant Chief Counsel
APR 11 Z011
Notice: Sec. 212(a)(2)(A)(i)(I), l&N Act [8 U. S.C.l182(a)(2)(A)(i)(I)] -
Crime involving moral turpitude
Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. l 182(a)(2)(A)(i)(II)] -
Controlled substance violation
APPLICATION: Waivers of inadmissibility
The respondent appeals the Immigration Judge's November 17, 2010, decision denying his
application fr a waiver under frer section 212( c) of the Immigration and Nationality Act,
8 U.S.C. 1182(c). The record will be remanded to the Immigration Judge fr furher proceedings
consistent with this opinion and fr entry of a new decision.
The record refects that the respondent, a native and citizen of Mexico, was admitted to
the United States as a lawfl permanent resident on April 12, 1990, based on an amnesty program
(l.J. at 1-2; Exh. 1 ). The respondent was thereafer convicted on Januar 11, 1991, fr the ofense
of transporting/selling a controlled substance, heroin, in violation of Califria Heal.th and Safty
Code section 11352 (Exh. 2; I.J. at 2). On November 9, 1999, the respondent was convicted fr the
ofense of inficting corporal injur on a spouse in violation of Califria Penal Code section
273.S(A) (I.J. at 2; Exh. 3).
The Immigration Judge denied the respondent's application fr a waiver under frmer section
212( c) of the Act noting that the waiver would not include the respondent's 1999 conviction fr
a crime involving moral turpitude and his ineligibility fr cancellation of removal under
section 240A(a) of the Act, 8 U. S.C. l 229b(a), due to his 1991 conviction fr an aggravated flony
(I.J. at 3-5).
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Cite as: Rodrigo Esquivel Jimenez, A090 974 844 (BIA April 11, 2011)
*1
, A090 974 844
On appeal, the respondent contends that the Immigration Judge ered in not allowing his
application fr a waiver under section 2 l 2(h) of the Act in conjunction with his application under
frer section 212(c) of the Act. See Respondent's Brief at 3-5. It is not disputed that the
respondent is eligible fr a waiver under frer section 212( c) of the Act fr his 1991 drug ofense
(I.J. at 3-4 ). Te record refects that the respondent, through counsel, attempted to fle an application
under section 212(h) of the Act as well fr his 1999 conviction (Tr. at 14-15). The Immigration
Judge fund the respondent ineligible (Tr. at 14-15). We disagee.
In Martinez v. Muksey, 519 F.3d 532 (5th Cir. 2008), the Fifh Circuit, where this case arises,
concluded that an aggravated felony conviction does not preclude an alien who adjusted to lawfl
permanent resident status afer entr fom obtaining a waiver of inadmissibility under section 2 l 2(h)
of the Act. See id. The record refects that the respondent's status was adjusted in 1990 based
on an amnesty progam indicating that the respondent adjusted his status afer enty (l.J. at I).
Thus, should the respondent be granted a waiver under frmer section 212( c) of the Act fr his
1991 conviction, an aggravated flony, in this case it appears the conviction would not render him
otherwise ineligible fr a waiver under section 2 l 2(h) of the Act fr his 1999 conviction because he
adjusted his status afer entr into the United States. See Martinez v. Muksey, supra; see also
Matter of Millard, 11 l&N Dec. 175 (BIA 1965) (allowing fr simultaneous waivers). Further,
because the respondent is an arving alien, he need not make a simultaneous application fr
adjustment of status. Matter of Abosi, 24 I&N Dec. 204 (BIA 2007).
Accordingly, the record will be remanded to the Immigration Judge fr frther proceedings
consistent with this opinion and fr entry of a new decision.
ORDER: Te record will be remanded to the Immigation Judge fr frther proceedings
consistent with this opinion and fr entr of a new decision.

FORTARD
Board Member Roger A. Pauley respectflly concurs in the result but notes that: (1) Martinez
v. Muksey. supra, is inapplicable because the respondent here had no prior admission befre
adjusting his status, see Matter of Ko/enovic, 25 I&N Dec. 219 (BIA 201 O); and (2) the respondent's
1991 conviction is not a categorical aggravated flony. See Rosas-Castaneda v. Holder, 630 F.3d
881, 888 (9th Cir. 2011 ). The implications of these matters should be frther explored on remand.
2
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Cite as: Rodrigo Esquivel Jimenez, A090 974 844 (BIA April 11, 2011)
U. S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRATION REVIEW
IMIGRTION COURT
San Antonio, Texas
File A 90 974 844 Date: November 17, 2010
In the Matter of
RODRIGO ESQUIVEL-JIMENEZ IN REMOVAL PROCEEDINGS
Respondent
CHGES:
APPLICATION:
APPECES:
Section 212 (a) (2) (A) (i) (I) of the Act, one
convicted of a crime involving moral
turpitude;
Section 212 (a) (2) (A) (i) (II) of the Act, one
who has been convicted of a violation of a law
or regulation relating to a controlled
substance.
Termination of proceedings;
Waiver pursuant to Section 212 (c) of the Act
as applied in removal proceedings.
ON BEHF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELD SECUITY:
Pro se Carmen A. Leal, Esquire
ORL DECISION OF THE IMIGRTION JGE
The Respondent is a 48-year-old married male, a native
and citizen of Mexico who received lawful permanent residence
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April 12, 1990 in San Francisco, California under the amnesty
provisions of the Immigration Reform and Control Act of 1986. On
April 5, 2010 the Department of Homeland Security issued a Notice
to Appear charging that the Respondent would be inadmissible
to and removable from the United States under Section
212 (a} (2} (A} (i} (I} of the Act by reason of his conviction on
November 9, 1999 in state court, Bakersfield, California for
inflicting corporal injury to a spouse, and under Section
212 (a} (2) (A} (i) (II) of the Act by reason of his conviction on
January 11, 1991 in state court in Kern County, California for
transporting or selling a narcotic or a controlled substance, that
is, heroin. The Respondent, with counsel at the time, admitted
the truth of the first three factual allegations, denied the
fourth, fifth, sixth and seventh factual allegations and denied
both charges. The Government had lodged additional allegations,
but those were subsequently withdrawn. The Government did present
conviction records (Exhibits 2 and 3), and the Respondent has
acknowledged that they both relate to him. I conclude that the
convictions listed on factual allegations number six and seven,
have been established by clear and convincing evidence. The
Government also presented a record of inadmissible alien (Exhibit
4) showing that the Respondent was attempting to enter the United
States as a returning resident on April 4, 2010. The Respondent
also admitted this in his testimony. I conclude that the record
establishes by clear and convincing evidence that the Respondent
A 90 974 844 2 November 17, 2010
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is an applicant for admission under Section lOl (a) (13) (C) (v) of
the Immigration and Nationality Act and is inadmissible under both
of the charges contained on the Notice to Appear. The
Respondent's counsel had argued at the time that the Respondent
would be eligible for the petty offense exception and therefore
not inadmissible for a conviction of a crime involving moral
turpitude. I note in that respect, however, that the Respondent
was convicted under a statute in California that was essentially a
wobbler statute allowing the Respondent to be charged either as a
felon or as a misdemeanor, and although the state elected to
charge the case as a misdemeanor, the Respondent apparently did
-
commit a felony offense and could have been sentenced to more. I
note, however, more importantly, that the Board of Immigration
Appeals has held that trafficking in controlled substances is a
crime involving moral turpitude, rather than a merely regulatory
offense, and that that is sufficient to establish that the
Respondent is not eligible for the petty offense exception. I
further conclude that the offense of inflicting corporal
punishment on a cohabitant in California is a crime involving
moral turpitude. I therefore find that the Respondent has been
shown to be removable under both charges by clear and convincing
evidence.
The Respondent presented an application for a Section
212 (c) waiver. The Respondent has presented no supporting
documentation, and has simply testified that he wishes to remain
A 90 974 844 3 November 17, 2010
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in the United States because all of his family is here, and he has
no one in Mexico. He subsequently amended that testimony to
testify that he had, in fact, been visiting his mother in Mexico,
although she spends some time in the United States as well. The
lack of supporting documentation is simply not an option for the
Respondent
}
[see Matter of Almanza, 24 I&N Dec. 771 (BIA 20o9jwho
is presenting his application under the RE ID Act. The
Respondent requested further time to attempt to secure supporting
documentation or other legal assistance since his attorney had
withdrawn for failure of the Respondent's spouse to provide any of
the necessary supporting documentation or cooperate in presenting
the waiver application. The Respondent, however, will not be
granted further time because I believe that the 212 (c) waiver,
which could waive his offense of participating in drug trafficking
in heroin in California in 1991, cannot be used to waive his
inadmissibility for conviction of a crime involving moral
turpitude. The Respondent is also ineligible for cancellation of
removal since the Respondent was convicted of a drug offense
within less than seven years of his adjustment of status, and has
no other admission to the United States before that time. The
Respondent would therefore be ineligible under Section 240A (e) of
the Act for failure to demonstrate seven years of residence in the
United States after admission in any status or capacity, including
his lawful temporary residence, which would not have incepted
before May 1 of 1987, the effective date of the Immigration Reform
A 90 974 844 4 November 17, 2010
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and Control Act of 1986 as well as the problem that cancellation
of removal would not be available for an aggravated felon as this
Respondent would be under Section lOl(a) (43) (B) of the Immigration
and Nationality Act because of his conviction of a drug offense
relating to trafficking in heroin. I therefore conclude that no
further continuance would serve any purpose, since the Respondent
would not be eligible for relief in any event. It would serve no
purpose to waive the Respondent's inadmissibility for the drug
trafficking offense in 1991 where there is a further ground of
inadmissibility which would not be waived and no other waiver
available that would cover both of the Respondent's grounds of
inadmissibility. I will therefore enter the following Order:
ORDER
IT IS ORDERED that the application for a waiver under
Section 212(c) of the Immigration and Nationality Act as applied
in removal proceeding be denied as serving no purpose.
FURTHER ORDER
IT IS FURTHER ORDERED that the Respondent be removed
from the United States to Mexico, the country designated and the
country of his nativity and citizenship on the charge contained in
the Notice to Appear.
A 90 974 844
GARY D. BURKOLDER
Immigration Judge
5 November 17, 2010
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before
GARY D. BURKOLDER, in the matter of:
RODRIGO ESQUIVEL-JIMENEZ
A 90 974 844
San Antonio, Texas
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immigration Review.
zlc/seh
Stephanie L. Congdon, Transcriber
YORK STENOGRAPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717} 854-0077
December 27, 2010
Completion Date
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