GUTIERREZ-CABRERA, GERARDO

ANTONIO
A205-760-561
SOUTH TEXAS DET. COM
566 VETERANS DR
PEARSALL, TX 78061
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 J(J7 lecsh11rg Pike, Stti/(' WOO
F111!.< Clurch, Virgi11i11 : W4 I
OHS/ICE Office of Chief Counsel SNA
8940 Fourinds Drive, 5th Floor
San Antonio, TX 78239
Name: GUTIERREZ-CABRERA, GERAR. .. A 205-760-561
Date of this notice: 6/25/
2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Hofman, Sharon
Manuel, Elise
Adkins-Blanch, Charles K.
Sincerely,
DOc t
Donna Carr
Chief Clerk
schw;rzA
Userteam: Docket
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Cite as: Gerardo Antonio Gutierrez-Cabrera, A205 760 561 (BIA June 25, 2013)
, .
.. .
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A205 760 561 - Pearsall, T
In re: GERARO ANTONIO GUTIERREZ-CABRERA
I RMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF OHS: Ubaid ul-Haq
Assistant Chief Counsel
Date:
APPLICATION: Voluntary deparure under section 240B(a) of the Act
JUN . 5
2013
The respondent has appealed fom the Immigration Judge's decision dated February 26, 2013.
The Immigration Judge fund the respondent removable as charged and denied the respondent's
application fr voluntary departure under section 240B(a) of the Immigration and Nationality
Act, 8 U .S.C. l 229c(a), in the exercise of discretion. On appeal, the respondent asserts that the
Immigration Judge erred in denying his request fr voluntary departure. The appeal will be
sustained and the record will be remanded to the Immigation Judge.
We review Immigration Judges' fndings of fct fr clear eror, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I 003.l (d)(3).
In exercising discretion with respect to an application fr voluntary deparure, an
Immigration Judge must careflly weigh both the positive and adverse fctors.
Matteroflemhammad, 20 l&N Dec. 316 (BIA 1991). Adverse fctors include the nature and
underlying circumstances of the deportation ground at issue, additional violations of the
immigration laws; the existence, seriousness, and recency of any criminal record; and other
evidence of bad character. Positive fctors include long residence in the United States, close
family ties in the United States, and humanitarian needs. See Matter of Argeles-Campos,
22 l&N Dec. 811, 817 (BIA 1999); Matter of Gamboa, 14 I&N Dec. 244, 248-49 (BIA 1972).
The Immigration Judge denied voluntary departure in this case due to the respondent's
criminal history. The record refects that the respondent was convicted of possession of a
controlled substance in 2013, though the respondent committed that ofense in 2007 (l.J. at 5-6;
Tr. at 18; Exh. 2). The respondent was also convicted of driving under the infuence sometime
between 2000 and 2003 (I.J. at 6). In reaching his determination, the Immigration Judge noted
the positive fctors presented, including the respondent's residence in the United States since
1996, and his United States citizen children, ages 8 and 2, at the time of the hearing (I.J. at 3, 5).
Upon de novo review, we conclude that, on balance, the respondent merits voluntary
departure in the exercise of discretion. While we do not condone the respondent's criminal
history, we note that over fve years have passed since he last committed a crime,
notwithstanding his 2013 conviction. Under these circumstances, and based on the positive
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Cite as: Gerardo Antonio Gutierrez-Cabrera, A205 760 561 (BIA June 25, 2013)
. .
A
i
os 160 561
equities presented, specifcally his lengthy residence and strong family ties in the United States,
we conclude that the respondent has demonstrated eligibility fr the limited relief of voluntary
depaure. We will therefre remand the record to the Immigration Judge to enter an order
grating the respondent a 120-day period of volunt departure in compliance with applicable
federal regulations. See 8 C.F.R. 1240.26(b). Accordingly, the fllowing orders will be
entered.
ORDER: The appeal is sustained and the Immigration Judge's February 26, 2013, decision
is vacated.
FURTER ORER: The record is remanded to the Immigration Judge fr frther
proceedings consistent with the fregoing decision.
2
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Cite as: Gerardo Antonio Gutierrez-Cabrera, A205 760 561 (BIA June 25, 2013)
f .
l
In the Matter of
(. -..
I:MIGRATION COURT
800 DOLOROSA STREET-SUITE 300
SAN ANTONIO, TX 78207
Case No.: A205-760-561
GUTIERREZ-CARERA, GERARDO ATONIO
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE I:MIGRATION JUDGE
This is a suary of the oral decision entered on j ?-,b /'.
This memorandum is solely for the convenience of the parties. If the
procedings should be appealed or reopened, the oral decision will become
the official opinion in the case.
[
) The respondent was ordered removed from the United States to
MXICO or in the alternative to .
[
Respondent's application for voluntary departure was denied and
respondent was ordered removed to MXICO or in the
alternative to .
Respondent's application for voluntary departure was granted until
upon posting a bond in the amount of $
with an alternate order of removal to MEXICO.
Respondent's application for:
[
] Asylum was ( ) granted ) denied ( ) withdrawn.
[
J Withholding of removal was ( )grated ( )denied )withdrawn.
[
] A Waiver under Section was ( )granted ( )denied ( )withdrawn.
[
] Cancellation of removal under section 240A(a) was ( ) granted,:. ( ) denied
\\
( )withdrawn.
Respondent's application for:
[ J Cancellation under section 240A(b) (1) was ( ) granted denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated docuents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a until

A a condition of adission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Imigration Judge's oral decision.
Proceedings were terminated.
Other:
Date: Feb 26, 2013
CL
Appea1, waivede Appeal oue ay, l'
THOMS G. CROSSAN JR.
c
Imigration Judge
Ut3
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRATION COURT
SAN ANTONIO, TEXAS
File: A205-760-561 Februar 26, 201 3
In the Matter of
)
GERARDO ANTONIO GUTIERREZ-CABRERA )
)
RESPONDENT )
IN REMOVAL PROCEEDINGS
CHARGES: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as
amended - present without admission.
APPLICATIONS:
Section 21 2(a)(2)(A)(i)(ll) of the Immigration and Nationality Act, as
amended - convicted of a controlled substance violation.
ON BEHALF OF RESPONDEN PRO SE
ON BEHALF OF DHS: RUBEDO HAWK
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 31 -year-old married male native and citizen of Mexico who
arrived in the United States at an unknown location approximately 30 August 1 996,
without ever having been admitted or paroled. As such, the Deparment of Homeland
Security issued a Notice to Appear against the respondent on 16 Januar 201 3, and
sered it upon him the same day. On 9 Januar 201 3, the respondent was convicted of
1
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possession of a controlled substance in violation of Texas law. See Exhibit 1 and
Exhibit 2.
CHRONOLOGICAL HISTORY
On 1 3 Febrar 2013, at the respondent's initial appearance before an
Immigration Judge, he was placed under oath and acknowledged receiving the fllowing
documents: "Read This Before You Take Legal Advice," list of free legal serice
provider for the San Antonio, South Texas Detention Complex Area, and notice of
appeal rights and processes.
The respondent was then advised of the general nature and purpose of these
removal proceedings which include this Cour deterining whether he can be removed
from the United States, and if he can be removed whether there is a law allowing him to
remain in the United States. He acknowledged he undertood the nature and purpose
of these proceedings. He was advised of rights, to include the right to be represented
by counsel of his choice at no expense to the Government, to review and object to the
evidence against him, to submit evidence, to have witnesses testif in his behalf, to
question all witnesses, to tell the Cour to which countr he wants to go if he is removed
from the United States, and to appeal this Cour's decision. He stated he undertood
his rights in these removal proceedings.
The respondent was advised he might be eligible for voluntar deparure. He
was advised to be eligible for voluntar deparure he had to agree he was removable
from the United States, not tr to remain in the United States, waive appeal of all issues,
not be convicted of an aggravated felony and convince this Cour to grant voluntar
deparure as a mater of discretion.
At his initial proceeding the respondent requested time to find an attorey. The
Cour granted such time until 26 Februar 201 3. On 26 Februar 201 3, the respondent
A205-760-561 2 Februar 26, 201 3
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again appeared in Cour without an attorey, advised the Cour he wanted to proceed
without an attorney. During this proceeding, the respondent admitted the allegations in
the Notice to Appear, admited he had received a copy of the conviction document, that
there was no objections to that document and the respondent conceded he was
removable as charged, under both charges. As such, because of the respondent's
admissions and concession and the evidence contained in Exhibit 2, removability has
been established by clear and convincing evidence pursuant to Woodby v. INS
standard.
Afer removability was established, the Cour questioned the respondent to
determine if there was any law that allowed the respondent to remain in the United
States in a legal status. Based upon the respondent's answer, the Cour determined
there was no law allowing the respondent to remain in legal status. See the next
section.
SUMMARY OF EVIDENTIARY RECORD ON REMOVABILITY
The evidentiar record in this proceeding consists of the Notice to Appear as
Exhibit 1 , and the judgment and conviction documents as Exhibit 2, as well as the
testimony of the respondent. There are no other profers of evidence, stipulations or
evidence fr the Cour to consider. All documentar evidence was admitted without
objection.
The Cour finds the respondent to be credible because durng the question and
answer session with the Cour he answered the Cour's questions spontaneously and
did not appear to be hiding an answer or evading the question. The respondent testifed
substantially as follows.
He is a 31 -year-old married male whose wife has no permission to be in the
United States. He has two United States citizen children, ages two and eight. The
A205-760-561 3 Februar 26, 201 3
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't
respondent claims he entered the United States on 30 August 1996, although the Notice
to Appear indicates an unknown date. The respondent testifed he does not have any
fear of returning to Mexico, that he has never had papers or permission to be in the
United States, that this is the one and only time he entered the United States and that
he has never lef the United States. He said no one has fled a petition on his behalf,
and that he has been the victim of a mugging. He also mentioned that someone
stabbed him, but did not provide furher information concering that. Respondent
admited that he had been arrested at least to times. One for the controlled substance
ofense and in early 2000 for driving under the influence fr which he received 18
months' probation.
All the admitted evidence identified above has been considered in its entirety
regardless of whether specifically mentioned in the text of this decision.
FACTUAL FINDINGS AND ALLEGATION IN THE NOTICE TO APPEAR
Based upon the evidentiar record consisting of the respondent's testimony and
Exhibits 1 and 2, the Cour finds the factual allegations in the Notice to Appear to be
true by clear and convincing evidence.
ANALYSIS. CONCLUSIONS OF LW ON REMOVAL CHARGES
Based upon the Cour's factual finding above, this Cour concludes that the
Deparment of Homeland Securty has proven by clear and convincing evidence the
respondent is removable as charged. Both charges of removal are sustained.
DESIGNATION OF COUNTRY OF REMOVAL
The respondent designated Mexico, his countr of citizenship and nativity as the
countr of removal should removal become necessar. The Cour accepted that
designation.
A205-760-561 4 Februar 26, 2013
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. I
BURDEN OF PROVING ELIGIBILITY FOR RELIEF
The respondent bears of establishing that he is eligible for any requested relief
benefit or privilege, and that it should be granted in the exercise of the Cour's
discretion. 8 C.F.R. 1240.A(d). To deterine whether any relief was available to the
respondent, the Cour inquired as to the fllowing. Did he have any fear of returning to
his home countr? Did he ever have papers or permission to be in the United States?
Was this the first time he had entered the United States? Whether he had a parent,
grandparent, wife or child with permission to be in the United States? If a petition had
been filed for him in the United States and had anyone committed a crime against him
while he was in the United States. Respondent's answers to these questions are
summarized in the above section entitled Summar of Evidentiar Record On
Removability.
RELIEF DETERMINATION AND ANALYSIS
The Cour finds the respondent is eligible for voluntar deparure puruant to INA
Section 240B(a). The Cour finds the respondent is not eligible for a U Visa, as
although he has been the victim of a crime, the crime that he described does not meet
the definition of a qualifing crime for a U Visa pursuant to Section 101 (a)(15)(U) of the
Immigration and Nationality Act, as amended.
ANALYSIS AND CONCLUSION OF LAW ON ELIGIBILITY FOR RELIEF
In considering the respondent's request fr pre-merits voluntar deparure, the
Cour considered the fllowing positive factor in the respondent's life in the United
States. That he has been here since 30 August 1996, that he has to United States
citizen children, age two and eight, and that the respondent wants to be able to visit his
children in the United States. The Cour considered the fllowing negative factors in the
respondent's case. He has a Januar 9, 201 3 conviction fr possession of a controlled
A205-760-561 5 Februar 26, 201 3
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M
substance. That possession of a controlled substance occurred in 2006 or 2007, and
according to the respondent's own testimony he did not take responsibility to get that
matter resolved earlier. The respondent also has an early 2000 driving under the
influence conviction, fr which he received 1 8 months' probation. The Cour finds the
respondent's criminal history spans, at a minimum of 3 years frm the latest time of his
DUI conviction, if it was in 2003, to the earliest of his possession charge, and at most 1 3
years, depending if his DUI conviction was in 2000 and his conviction fr cocaine
possession was in 201 3. However, even assuming the shorest possible time, the Cour
finds the respondent, as he said in his own testimony, did not take responsibility to
resolve his drug charge earlier, that it took that length of time through his own fault. The
Cour finds the negative factors outeigh the positive factors given the young age of his
children, two and eight.
Accordingly, the following is the order of the Cour.
ORDER
IT IS HEREBY ORDERED the respondent's request for voluntar deparure be
denied.
IT IS HEREBY FURTHER ORDERED the respondent be removed from the
United States to his country of citizenship and nativity, Mexico, pursuant to Section
21 2(a)(6)(A)(i) of the Immigration and Nationality Act, as amended, and Section
21 2(a)(2)(A)(i)(ll) of the I mmigration and Nationality Act, as amended, those charges
listed on the Notice to Appear.
A205-760-561
v
- TW
THOMAS G. CROSSAN JR.
Immigration Judge
6 Februar 26, 201 3
.M ; 1R:
. % G
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CERTIFICATE PAGE
I hereby cerif that the attached prceeding before JUDGE THOMAS G.
CROSSAN JR., in the matter of:
GERARDO ANTONIO GUTIERREZ-CABRERA
A205-760-561
SAN ANTONIO, TEXAS
was held as herein appears, and that this is the original transcript thereof for the fle of
the Executive Ofce fr Immigration Review.
FREE STATE REPORTING, lnc.-2
APRIL 8, 2013
(Completion Date)
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