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Hernandez, Christine M., Esq.

Hernandez & Associates, P.C.


1490 Lafyette Street, Suite 307
Denver, CO 80218
U.S. Department of Justice
Executive Offce fr imigtion Review
Board of Immigatio1 Appeals
Ofce of the Clerk
JI07LwP,ile2
Fw0Chw VUn JJWf
DHS/ICE Ofice of Chief Counsel DEN
1245 East Caley Avenue
Centennial, CO 80111-5663
Name: PEREZ-CASTRO, MARIA ISABEL A 095-266-46
Date of this notice: 9/5/2012
Enclosed is a copy of te Board's decision ad order in te above-referenced case.
Enclos
Panel Member:
Pauley, Roger
Sincere1y,
DO c t
Do1a Car
Chief Clek
schwarA
Useream: pocket
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)
PERE-CASTRO, MARI ISABEL
A095-266.46
DENVER CONTRACT DET. FAC
3130 N. OAKLND STREET
AUROR, CO 80010
U.S. Department ot Justice
Exeutive Ofce fr Immigation Review
Board of Immigaton Appeals
Ofce of the Clerk
Jf00wmMJWP
FzbLhw, Y/rnla J01
OHS/ICE Ofce of Chief Counsel DEN
12445 East Caley Avenue
Centennial, CO 80111-5663
Name: PERE-CASTRO, MARIA ISABEL A 095266.46
Date of this notice: 9/5/2012
Enclosed is a copy of te Board's decision in the above-referenced case. This cop is being
provided to you d a couresy. You attorey or representative bas been sered with this
decision pursut to 8 C.F.R. 1292.S(a). If te atached decisioU order that you be
removed fom the United States or afus an Immigtion Judge's decision orderng tat you
be rmoved, any pttion fr review of the atached decision must be fled with ad received
by te apprpriate cour of appelb itin 30 days of te date of the decision.
Enclosure
Pane Member:
Pauley, Roger
Sincerely,
DO c C
Dona Car
Chief Clerk
schwarA
Useream: Docket
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)
U.S. Deparent of Justce
Eeuve Ofc fr lmgo Revie
Decision of te B of Im igion Apeal
Falls CW, Viiia 201
File: A095 266 06 - Auor CO Date:
I D- M ISAEL PEREZ-ASTO a.k.a. Isabel Per
I RMOVA PROCEEDIGS
APEA
ON BEHALF OF RESPONENT: Chsne M. Heradez Esquire
ON BEHF OF OHS: Lila Cronf el
Asst Chief Cousel
CHRGE:
SEP - 5 2012
Notce: Se. 212(a)(6){A)i}, I&N Act (8 U.S.C. 1182(a)(6)(A)(i)] -
Present without bing adite or paoled
APLICATION:
Te repondent, a native and citzen of Mexic, appeals te Imgation Judge's Aprl 3, 2012,
de
cision denyig her applications fr cacellaton of removal and voluntr depa wder ston
240A()( l ) ad 240B(b) oftelmgrion ad Nationalit Act, 8U.S.C. 1229b()(l), 1229c(b).
Te rspondent's apeal wll be dismissed.
We rview the fdings of fact made by te ligtion Judge, includg the detenination of
crdibilit, fr cle eror. 8 C.F .R. l 03.1 (d)(JXi). We reiew all oter issues, icluding wheer
te paes have met the rlevat buden of proof ad isus of discrtion de novo. 8 C.F.R.
1003.1 (d)(3Xii). Te resondent's applicaton fr relief, whch Y fle ar My 11, 2005, is
govere by the aendmets made t te Act by the R I Act. See Mater of S-B-,
24 I&N Dec. 42 (BI 2006).
At issue in ths mater is wheter the resndent s 2011 conviction of atemptd seond dege
burgla uder sections 18-4-203(1) ad 18-2-101 of the Colordo Revised Stts is a crme
involving morl turitde such tht the respondent is ineligble fr both cacellaton ofreova ad
volut
depe. See sct
i
on l 0 l (f(3 }, 212( a)(2)(A)(i)(I, 240A(b )( 1 )(C), ad 240B( )(1 )(B)
of te Act, 8 U.S.C. 110l(t(l),l182(2)(A)()(, rspctively. At te outst, we emphiz tat
the rsondet concees she is inadissible uder section 212(a)(6)(A)(i) of the Act a chged by
the Depaent of Homelad Secut (DHS) (I.J. at 1; Tr. at 1). Te rsndent is sekng rlief
fm rmova ad therfr ha te buden of proof to esblish eligbiJit fr tat rlief See setion
240(c)(4) ofte Act 8 U.S.C. 1229a(c)(4); 8 C.F.R. 1240.S(d); Gacia V. Holdr, 584 F.3d 1288
(10 Cir. 2009); Mater of Alma, 24 l&N De. 771 (BIA 2009). Te rpondent cncee te
stat wder whch she wa convicted is a divisible st, meang tat at lea a pron of te
statte i
s a cre ivolving mor titude (Rendents Br. at 8). Accrdigly, it is te
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)
A095 266 046
repondet,s buden to pret sufcient evidence to establish she Ynot convicted unde a poron
of te stte in which mor tpitude inheres. Matter of Almana, supra, at 774-76.
To dete if a ofen is a crme involving mor titude we apply a tepa aaysis.
See Matter of Silva-Treino, 24 I&N Dec. 687, 699-70 (A.O. 2008). Fis, we eaine te stt
at issue to acerin wheter mor titde is intnsic t al ofenss t have a "rc
prbabilit" of being prsecuted uder the stute. Mater of Silva-Trevino, supra, a 689-90,
696-97. If the isue canot be rsolved uder the categorcal apprach, apply a moded
categorcl approah, where we exaine specifc documents comprising te rord of cnvicton t
detenine te nate of te uderying convicton. Id. at 690, 698-99. Fially, if the rord of
convcton is inconcluive we cnider evidence bond te reor of convicton to evaluate whether
the ofens cnstit a cre involving moral tpitde. Id. at 690, 698-99.1
We afte Im igton Judge's denaton tat in light of te resondent's convicton of
the ofense of atemptd second degee bugla under seton J 8-4-203( 1) ad 18-2-101 of the
Colordo Revised State she ha not estblished eligibilit fr either cacellation of removal or
volut depae (l.J. at 2-3, 9). Unlawl ent into the dwelling of aother, or rmag
uawfUy in such a dwelling afer a lawl or ulawl ent, wth the intent to c!l t ay crme,
is a crime involving mor titde. Matter of Louissaint, 24 l&N De. 754g 759 (I 2009). Te
rcrd refe. tt te rndent pleaded guilty to tng a substta sep towd the comission
of seond dege bura by "(u]nlawlly, felonously, ad kowingly rmain[ing] uawflly
afer a law or ulawfl ent ito the building or occupied stucte of Frcisco Maia
Aceveo ... wth the intent to comit theri the crme of hasment .. . " (x. 3 at 49; Exh. 6 at
3
3
3
).
Tu, te deterinatve queston with respet to te respondent's eligibilit fr rliefis wheter
she esblised tat the ten "dwellig" a considere Mater of Louissaint, supra, ctgorcly fals
outside te deftion of"building or occupied stcte" uder the it sttut, or that te recrd
discloses that it falls outside of tat defniton in ts paicula ce. O appeal, the repondent
ague bth tat the ten "dwellig
,
, falls ently outside the defniton of"building or occupied
stte" ad that the recrd establishes her paticula ofene did not involve a "dweJling." We
fnd neite agment perusive.
Fit, the respondent paes te stattor defnition of "buildng,'' "ocuied sct," ad
"dwelling," ad agues tat "[a]s 'dwellig' is defned, in Coloro, a a t of buidig, not a
occupied stcte, it fllows tat a ulawfl ent of a occupied stctue ca never be fud to
be a dwelling'' (espondent's Br. at 11). We fnd ts aguent unpeive. Baed on te
stutor defitions of the relevat ten s, it is more accurte to say ever "dweUing
,
, is als "a
occupied st
,
, ad a "buldg,'' but tat not ever "occupie stct" or "bulding
,
, is a
"dwelling." Under Colordo law the ten "building" meas:
a st c ch ha te cpait to conti ad is desiged fr te sheltr of ma,
animals, or prper, ad includes a shp, tiler, sleeping ca, alae, or oter
` Te Tent Ciuit i whch tis cae aises ha not yet adressed whether t defer to te
methodolog in Mater of Sila-Trevino. See Efagene v. Holder, 62 F.3d 918 (10 Ci. 2011 ).
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)
A05 266 06
vehicle or place adapted fr overght acomodations of peon or aas, or fr
crng on of buiness tein, weter or not a peron or aa is aly prent.
Colo.
Rev. Stt. 18-4-101(1). Te ten "'Occupied stctue" meas:
ay a plae, failit, or enclosu whc fr paicula puroses, may b ud by
peron or as upn ocion, whether or not inclued within the defnition of
"building', in subsecton (1) of ts section ad which is in fact ocupie by a pron
or amal. ad kow by te defendt to b thus ocuied at the time he a in
violation of one or more of sction 18-4-102 to 18-105.
Colo. Rev. St. 18--101(2) (emphais adde). Te ter Hdwelling" mea "[a] building
which is used, intended t be ued, or ully ue by a pron fr habiton.,, Colo. Rev. Stt
18-1-9
0
1 (3)(g) (emphais adde). Cont to te rspndent's contento it is cle t te ter
"dwellig" fals wtn the defnition of bot "occupied stct" ad "buildig." Ever "dwelling
,

als Fts te defnition of "occMpie stctr" ad buldig- Converly, sme "occupie


stcts" or "bulding e "dwelligs." Te tenW not d the rspndent suggest, mutually
exclusi
ve. Terefre, the rpondent caQot estblish she did not plea gilty to bugla of a
dllig by etablishing mely tt she pleaded guilt to only t bugla of a "buldg" or
"ocupied stce" (see Ex. 3 at 49; Ex. 6 at 333). Wle we agee wit te respondent that the
trs a not synonyous, te use of the gene trs "bulding" or uoccupied strcte" does not
excludete moresifctr "dwellig" (Respondentts Br. a 11). Tu, te respondent's reliac
on te defton of te vaious ter is mslac ad does not estblis she wa not convct
of bula of dwellig, ta te ofense is not a crme involving morl titde. or that she is
eligibJ to apply fr ccellation of rmoval or volunta depa.
We also rjt te Mspndents aguent that beause the rord refects she convcted of
clas S felony
,
she cMld not have be convicted of bugla of dwellig (esndnt's Br. a
10-11). Seond dege bugla is a clas 4 felony. Colo. Rev. St. 18--203(2). Atempte
secnd dege bugla is a clas S felony. Colo. Rev. Sta. 18-2-101(4). However, snd degre
bgla of a dwlling is d clas 3 felony. Colo. Rev. Sta. 18-4M203(2)(a). AteUpt second
degee bugla of dwelling is a clas 4 felony. Colo. Rev. Stt. 18-2-101 ( 4). Te respondent
contends that beaue she wa convicted of a class 5 felony, she wa not convicted of atempted
seond dege bua of a dwellig, ad becu te deryg ofen she intnde to cmt
wa haent wich te resondent contnds fhe is not a crime involvng mora tuitde. she
ha not ben convictd of cre involving mor titde (espondents Br. at 10-11).
We ae upraded by ts aent Colorao coms have cnclude tat te in fom
a clas 4 felony to a clas 3 felony fr seond degee bugla of a "dwelling
,,
is a sentc
encment, not a element of the stt. See People V. Gacia, 940 P.2d 357, 35963
(Colo. J 997). Tus, te Dee fact tat the respndent d peIited to ente a plea of glt wtout
tis sentence enacement big ips does not mea she ha establishe she not convcted
of the ofense of bugla of a dwelliDg- A discussed prviously, te ten dwelling falls wt
the defton of bt "buiding" ad occuied sc." Tu, by enterng a ple of glt to
cout S of the aeded complait. te respondent admitted t a chage tat iplicitly include te
possibilit
tat she cmitte buglar of a dwelling. Te fct that the rspondent prt
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)
A095 266 046
to plead gilty to a clas S felony estblishes ony tat the sentence enacement was not aplie to
her, not that te "buildig,, or "ocupied stcte" she reaie i uawfly with te itnt to
comt te ofene of hasment not a "dwelling."
I su
,
we conclude tat te mere fat tht te setence enacment fr comtg second
degee bWgla of a dwllig not imposed i this matter does not ater the statutor elements
of the ofense or etblish tat te "bulding" or "occupied stctu" i queon W not a
"dwelling,,, as te late tenis include wt te defntion of te frer ten. We emphaiz
tt the rsult i ths mater hinge on wher te bmen of prof Hes. Te abigut crete by te
interlay of the complement defnitions of "buldig," "ocupied stct,,, ad "dwelling"
mes tat the pa with the buden of proof relate t whether the ofense is a cre involving
moral tuitde canot Deet tt buden by showing a bar conviction of a clas 4 felony second
dege burgla ofens.
Finaly we note tat the rndent did not submit additonal evidence outside the rcor
of cnvicton to establish tat te "building'' or "occupied stcte" wa not a "dwelling.,, See
Mater of Silva-Trevino, spra, at 699-704. Ideed, te evdence of rord establishes tt te
respondent comted burgla of the dwelling of Frcisco Maia-Acevedo (I.J. at 2-3; Ex. 7;
Tr. at 13). Tu, we afthe Immigtion Judge's deterinton tat in light of te rondent's
convicton of atempte second degee burgla uder seton 18-4-203( 1) ad 18-2-101 of te
Colordo Revise Stte, whch the respndent has not established did not ivolve te burgla of
a dwelling, she ha not established she bas not ben convicted of a crme involving moral titude
uder Mater of Louissaint, supra, ad resultatly has not estalished eligbilit fr eiter
cacllaton of removal or volut depare uder sctions 240A(b )(1 )(C) ad 240B(b )(1 )(B) of
te Act.2 Gacia v. Holder, spra. Accordingly, te fllowig orde wll be eter.
ORER: Te repndent
,
s appeal is dismissed.
In Jigt of ts detaton we ned not consider the oter issues risd by te respondent on
appl rlat to her eligbilit fr t rlief sought (Respndent's Br. at 13-23).
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Cite as: Maria Isabel Perez-Castro, A095 266 046 (BIA Sept. 5, 2012)

\
UITED STATES DEPATME OF JSTICE
EECTIVE OFFICE FOR IMMIGRTION REVIEW
UITED STATES IMMIGRTION COUT
AUROR, COLORDO
Pile: A095-266-046 April 3, 2012
In the Matter of
MARIA ISAEL PEREZ-CASTRO
)
)
)
)
IN REOVAL PROCEEDINGS
RESPONET
CHGES: Present without being inspected and admitted.
APPLICTIONS: cancellation of removal for a non-permaett
resident.
ON BEHF OF RESPONDET: CHRISTINE HERAEZ
ON BEHLF OF DRS: LEILA CRONFEL
4
* J
OR DECISION OF TE IMMIGRTION JGE
The respondent is 30 years old, a native and citizen
of Mexico. She admits that she arrived without inspection near
Sa Ysidro, Califoria in Augst of 1996, and I find that chare
is sustained.
She had applied for cancellation of removal, which is
Exibit 2. She must meet all the reqirements. The
reqirements are that she has been physically present in the
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United States for at least"the past 10 years; that she has been
a person of good moral character during that time; she mst show
that she has a spouse, parent, or child who is a citizen or
resident; and tha the relative would suffer exceptional and
extremely unusual hardship if she is removed.
The first issue in the case is whether she might be
disqalified because of a conviction. Te respondent was
convicted of attempted second degree burglary, and cousel has
submitted the conviction records in Eibit b She pled to a
count which said that she kowingly remained unlawfully after a
lawful or unlawful entry into the building or occupied strcture
of Francisco Macias Acrt(with the intent to commit
harassment. It is a felony 5. Eibit 6, page 333.
The Board of Immigration Appeals has examined burglar
in Matter of Louissaint, 24 I& Dec. 754 (BIA 2009), and the
Board held that "the conscious and overt act of ulawfully
entering or remaining in occupied dwelling with intent to
commit a crime is inherently reprehensible conduct committed
with some form of scienter, as reqired by Matter of Silva-
Trevino."
It held that the unlawful entr into the dwelling with
intent to commit any crime is a crime involving moral turitude.
Therefore, the burglar does DOT OBNO to have the intention to
commit a crime involving moral turpitude but it must involve a
dwelling.
A095-266-046 2 April 3, 2012
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The statute that she was convicted uder is divisible
because it ca have d lawful or unlawful entry and it can be an
occupied stTcture or a building. Based upon the police report
and the respondent's testimony, J fiOd that this is a crime
involving moral turpitude. It is not a petty offense, ad
therefore, 1 find that she is disqalified from this application
because she has not show good moral character. Eibit J has
been submitted. The respondent admits that she went iOto her
husband's apartment without invitation with a key that she had.
The police report says she hit him on the head, ad the police
obsered blood on his head, although she denies that. It was an
occupied strcture and not B building. It was a uinvited
entr, and J find that under the modified categorical approach,
it is a crime involving moral turpitude.
However, this certainly is a debatable issue in the
case, and because of that, I have decided to let cousel put the
case on so that I can make alternative findings. The respondent
testified that she has her mother in the United States, a U.S.
citizen, who testified today. Her father is a permanent
resident. Her mother has 11 children altogether. There are six
in Califoria, three in Colorado, and a broth\ in MeYiLo - The
respondent is the beneficiary of a visa petition from her sister
in 1998 ad her mother in 2000, but there is B waiting period of
anywhere from thTee to seven years for those petitions. She
testified that her motherg who is 69, is dependent on her for
A095-266-046 3 April 3, 2012
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rning errandsJ making sue she takes her medicationso Her
mother sometimes is forgetful, and she takes care of her. She
has several medical problems, including high blood pressure
cholesterol, diabetes, heres Btaractsg She and her
sister and the mother all testified that no one else of the 11
children ca take care of the mother if the respondent has to
live in Mexico.
At the present time, her sister Maria Perez is taking
care of the mother and the respondent's daughter. However, she
is getting frustrated. She is going through a divorce and she
has told the respondent that she really canot do it anyre.
The respondent has a child with this man that she had
the problem with, Francisco Macias AtV'/and that child is
I
Sarah Joana Elizabeth Macias-Perez, age 3, a United States
citizen. She has had a relationship with Francisco since
October 2007 and she claimed that he was violent, that he would
tr to strangle her, that he would get drun ad beat her u,
that he cheated on her and lied to her. Nevertheless, she did
go back to him after they were separated one time, apparently
hoping that he would change. He also threatened her that he
would take the child to Mexico if she ever reported him.
As to the incident, she claims that she filed for
child support in November of 2009, and he retaliated against
her. She said that she had the keys to the apartment and went
into the apartment, and there was a woma in there with him in
A095-266-046 9 April 3, 2012
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bed. The police report says nothing about this, but the
respondent says that the woman left. The respondeIt admits he
was bleeding from the head but has no idea how that happened .
The police report in the Government's exhibit says that the
respondent had a knife, that she made several cuts of the knife
and hit the television set and the bed clothing,fays the
husband was asleep when he was attacked, and all of this is in
Exhibit 7. Ad also, the police report on page 5 of that
exhibit says, J obsered a large abrasion on the left side of
Francisco's head. He also had several scratches on his left
eye, right arm, left ar, and back. Photographs were taken of
the da0age to the apartment, as well as the injuries on
Francisco."
At any rate, the respondent said she did not know that
she had to go to court and she did not go to court, although she
talked to an attorney, A nd also I should say she admitted that
she broke some items in the apartment but not anything beyond
that. She said that they talked, and he calmed dow, ad then
she did not see him util the next year in March, ad he
apologized and he started giving her money, so they had some
relationship again.
Then she had another incident with him, show in
Exhibit 8, in 2011. She went to the police to report it, and
the police foud the old warrant and arrested her, and she pled
guilty to the old offense, not the new one. The trial attorey
A095-266-046 5 April 3, 20J2
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pointed out that he told the police she had rasacked his home,
that she threw hot sauce all over the place, that she threw
items in the toil
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t, but she denies all of that, and of course
she was not convicted of thaty so it is not held against her.
She said if she goes to Mexico, she would have to take
her daughter, but not her mother. She said her mother is afraid
of the mother's ex-husband because he was violent and he goes to
Mexico sometimes and when he does, he stays in the brother's
home, according to one witness
Ad the respondent also had her mother testify She
is 68. She talked aout her medical situation and said none of
the other J can support her. She did testify that she applied
for some tye of Social Security and she was approved but she
has no idea exactly what the limits are of that and there is no
evidence whatsoever to say what Social Security has done with
her case o The respondent said her mother ows a business in
California, but it is only in name, that it is actually the
brother's business.
Ad her sister Maria Salud Perez-Castro testified on
the phone for a minute but had problems with the baby then, and
so that was cut short, but she said she ca barely support
herself, and it is very difficult for her to take care of her
mother and the child, and hopes that the respondent ca help her
with that.
Respondent's mother said she canot go to Mexico
A095-266-046 6 April 3, 2012
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because she is afraid there. She says that she cannot go to
Califoria because she does not like it there and that she would
really miss her daughter and she is very comfortale and happy
living with her daughter. Ad Cecilia Perez-Castro also
testified that there is no one in the family who ca take care
of the mother, essentially that she would be indigent without
this respondent, and she too testified briefly that when people
go to Mexico, they stay in the brother's home, but it is not a
home which will accommodate another family.
Ad I have read all of the exibits of the respondent,
showing that she is well- regarded by many people as being a hard
worker and that she is of good character, has tried to support
her child, takes care of her mother, and works two jobs in order
to do that. Ad I have also read the material showing that
there ie a miserable situation in Mexico with gang violence and
cCrruption .
Trning to the record, first, I find the respondent is
not eligible because she has been convicted of a crime involving
moral turpitude. 1 find she has not shown good moral character.
Secondly, as to hardship to the child, it is noted that the
child would accompay the mother. There is no suggestion of ay
medical problem of the child or anythng else that would cause
severe problems in Mexico. It is noted that the brother has a
house there, even though it is very modest. Ad I know that
this would cause some suffering on the part of the child to get
A095-266-046 April 3, 2012
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used to a new life, but it is not exceptional and it is not
extremely unusual.
As to the mother, I have to say that first, there is
no financial problem show because she claims that she has been
approved for some type of Social Security, and obviously, out of
11 children, one would think that when she is receiving her SSI,
somebody can take her in ad help her or she can do it herself.
J do not mea to diminish the hardship that the
respondent's mother would suffer because she is very attached to
her daughter. To her, it is ver important, and it is a
difficult thing because she has lived with her daughter and has
come to rely on her. But I cannot find that it is exceptional
or extremely uusual type of hrdshipy taking all the facts of
the case. Many of the things that respondent does for her, such
as taking her for appointments, can be done P! anyone, ad
fraly, I do not believe he testimony of any of the three that
there is simply no one else that would take care of their
elderly mother.
Ad finally, as to respondent's exlanations of being
the victim, it is noted that she is the one that pled guilty to
O felony. She has the restraining order against her. There is
very specific police report obsering an injur to the husband
and damage to the property, J do not believe heZ story that
she came in and foud a woma in there and that the Wom fled.
There is nothing in the police report. Te respondent did not
A095-266-046 April 3, 2012
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(
tr to correct tne record or go to trial.
guilty to this crime.
}|

She simply pled


Ad accordingly, I find the applications should be
denied. They are denied for failure to meet the reqirements of
hardship and good moral character, and volutar departure will
not be granted because in this second step of volutar
departure, she canot show eligibility, again because of the
crime. So cancellation of removal is denied, and it is ordered
that she be remoed to Mexico.
A095-266-046
J. P. VAELLO
Immigration Judge
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April 3, 2012

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CERTIFICATE PAGE
l hereby certify that the attached proceeding before JDGE
J. P. VANDELLO, in the matter of:
MARIA ISABEL PEREZ-CASTRO
A095-266-046
AURORA, COLORDO
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
G


GRCE SHIPPS (Transcriber)
DEPOSITION SERVICES,
MY 11, 2012
{Completion Date)
Inq.
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