Name: NOLASCO, JOSE

U.S. Departent of Justice

Executive Ofce fr Imigation Review
Board of Immigration Appeals
Ofce of the Clerk
52011.eeburg Pike. Suite 1300
Fals Churh, Vrginia 11041
Ofce of the District Counsel/BA
31 Hopkins Plaza, 7th Floor
Baltimore, MD 21201
A94127-863
Date of this notice: 03/12/2004
Enclosed is a copy of te Boar's deision and order in the above-refrenced case.
Enclosure
Pael Members:
COLE, PATRCIA A.
FIPPU, LAU S.
HESS, FRD
Sincerely,
1110
Frank Kider
Acting Chef Clerk
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jose R. Nolasco, A94 127 863 (BIA March 12, 2004)
\ .
A
U.S. Department of Justice
Eecutive Ofce for Immigration Review
Falls curh, Virginia 2041
File: A94 127 863 - BaJtimore
In re: JOSE R. NOLASCO
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS: Linda A. Dominguez
Assistant Distct Counsel
CHARGE:
Decision of the Board of Immigration Appeals
Date: MAR 1 ! 2004
~
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U .S.C. l l 82(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Special rle cancellation ofremoval under NACARA
In a order dated July 29, 1999, te lmmgtion Judge deie te resndent's request fr alu ad
withholding of removal, but grnted him special rle cancellation of removal under section 203 of te
Nicaagu Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2193, 2196,
amended by, Pub. L. No. 105-139, 1 1 1 Stat. 2644 ( 1997) (A CAR). Te Depament of Homelad
Seuty (te "OHS," frerly the Imigration and Naturaliztion Service) timely appaled te gt of
rlief; On Jue 26, 201, w adinitively clos pe dings in order fr the respndent to apply fr
Temporar Protected Status. On Jue 12, 203, the respndent fled a moton to rinstate prceedings.
Inamuch a te moton is prprly submitted, te rspndent's ruest fr reinstatement is gnted. Te
DHS's app wll be dismissed.
Te OHS conteds tat te Immigtion Judge er a a matter oflaw in fdig tat the rndent's
failure to comply wit setion 265 of the Immigation ad Nationalit Act, 8 U.S.C. 1305, dos not
render him ineligible fr special rle cacellation of removal. Te wllfl failu to notif the Attorey
General of achangeof address, as set fr in section 265 of the Act, is a groundof removability under
section 237(a)(3)(A) of the Act, 8 U.S.C. 1227(a)(3)(A). Te respondent testifed that he becae
aw of the requirement to notif the DHS of a chage of address in 1991, but failed to do so fr sverl
of the occasions on which his address changed (Tr. at 54-56). The respondent's most recent filure to
comply with the addrss notifcation requirement occured in 1998 (Ex. 2).
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Cite as: Jose R. Nolasco, A94 127 863 (BIA March 12, 2004)
Te disositive issue in this cae is wheter the respondent can be precluded fom rliefbased on a
g\d of rmovabiity fr which he wa not chaed or fwd rmovable. Citng Mater ofForti-7/a,
21 I&N Dec. 1199 (BIA 1998), the Immigrtion Judge fwd that the respndent's falure to register
puuat to setion 265 of the Act did not rende him sttorly ineligible for spcial rle ccllation of
rmova bause he w not chaged wth removabilit on t bais. In Maller of Foriz-7la, spra,
at 1201 n. 3, we held that in orde to qualif a one wh "is deprble" wth the meing of frer stion
212( c) of the Act, 8 U.S.C. 1I82(c}, where limitations were placed on the availability of tat fr of
rlief fr ay ae who "is derable by ro ofhaving crte" cr ofens falling wt fne
section 241 (a)(2) of the Act, 8 U.S.C. 1251 (a)(2), the alien must be chaged wt ad fud deprable
on the rqlisite gowd of deporabilit. See also Maler o/Ching, 12 I&N De. 7 I 0 (IA I 968) (fnding
that te "is deprable" laguage fr sunsion of deportion purss ruires a chage ad finding of
deporbilit on tat goud). Ba on the fregoing and the lack of a charge of rmovability fr fai
to register his address, te Immigration Judge held that the rndent wa not prlude f 'gibility
or special rle cacellation f
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Te OHS agues that the respndent need not b chaged with the ground of rmoval fr te ofense
to prclude h fom relief In suppr ofits aent, the DHS cites Matter of Melo-Pen, 21 l&N De.
883 (I J 997), i which tis Boa held tat te "is deporble" laguage a u in te Trsition Peo
Custody Rules does not rquire that a alien have been chaed ad fwd deprble on that deprtion
ground. However, we fnd Matter of Mel Pena, supra, inapplicable to the instant case because it
involve bnd pre dings. See Maner of MeloPena, supra, at 885 n. 2 (distinguishing cses involving
bond provisions fom those involving eligibility fr relief fom deporation, such a Matter of Ching,
supra). The OHS also relies on Matter of Wong, 13 l&N Dec. 427 (BIA I 969), in which this Board held
that it was proper to deny suspnsion of remqval to a prson who filed to report changes of his address
in violation of section 265 of te Act. However, the instant case is distinguishable fom Maller of Wong,
supra, because the respondent in that case was charged and fund removable under frmer section
24l(a)(5) of the Act failure to frish notifcation of address in violation of section 265 of the Act.
Bae on te frgoig, we a not pede that te regu]aton goverg sia rle ccellaion
of rmova, which contain "is deorable" language, requir a depa fom ou holding in
Matter of FortizZlaa, supra. See 8 C.F.R. 1240.66(b), (c). Terefre, we fnd no reason to
distub te Immigration Judge's fnding that the respondent is eligible fr special rle cacellation of
removal.
Accordingly, the fllowing orders will be entered.
ORDER: The respondent's request to reinstate te appea is ganted.
FURTHER ORER: Te DHS's appeal is dismissed.
2
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Cite as: Jose R. Nolasco, A94 127 863 (BIA March 12, 2004)

TF
File No. :
UITED STATS DBPATB OF JSTICE
EXECIV OFPICB FOR IMIGRTION RBVIBW
IMIGRTION COURT
Baltimore, Marlad
A 94 127 863 July 29, 1999
In the Matter of )
}
JOSE NOLSCO
Respondent
) IN REMOVAL PROCBBDINGS
)
)
CGE: section 212 (a) (6) (A)(i) of the Inigration ad
Nationality Act, present in the United States
without having been inspected, admitted or
paroled.
APPLICTIONS: Section 208 of the Inigration ad Nationality
Act, asylum; Section 241(b) (3 } of the
Imigration and Nationality Act, witholding of
removal; Section 203 of the Nicaraga Central
Aerica Relief Aqt, special rles/
cancellation/suspension of deportation;
alteratively, Section 240(B) of the
Imigration and Nationality Act, voluntar
departure.
ON BEHF OF RESPONEN: ON BEHF OF SBRVICB:
J. B. Jenigs, Esqire Lynda Domingez, Bsqire
OA DBCISIQ OF T IMIGRIO J
Te respondent, a native and a citizen of Bl
Salvador, has petitioned the Imigration Court for remedy and
relief from his removal and deportation through an application
of special rle, cancellation of removal/suspension of
deportation, pursuant to Section 203 of the Nicaraguan central
Aerican Relief Act of 1998; Section 208 of the Imigration
ad Nationality Act, asylum; Section 241(b) (3) of the
1
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Inigration and Nationality Act, witholding of remval,
alteratively, Section 240 (B) of the Inigration and
Nationality Act, voluntar depature.
There is no dispute that respondent, Jose Nolasco,
is suject to being removed and deported. He entered this
countr on October 12, 1990
1
, and that he entered this countr
without being inspected, admitted or paroled. Te respondent
does not dispute that he's suject to being removed and
deported as chared. As noted he seeks relief.
In support of his application of asylum, the
respondent has presented the asylum application filed with .the
Imgration and Naturalization Serice and referred to the
Court, respondent Group Eibit 1 with attachments, and his
application for special rle cancellation of removal filed
under the old fo:, EOIR-40, respondent Group Bxibit 2 with
attachments. In addition, the respondent has testified to the

Court on all his applications for relief, and has also offered
the testimony of his spouse who is a native and a citizen of
Bl Salvador in the United States without status.
The respodent testified that he came to the United
States in Septemer of 1988 after he got out of the Salvadoran
militar. The respondent claims that at the time he came to
the United States, he feared persecution both at the hands of
Respondent has testified and represents that his date of
arrival into the United States was 1988.
A 94 127 863 2 uly 29, 1999
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the gerrillas as well as the militar.
He noted that in Bl Salvador as a young m he was .
studying when the gerrillas caught him and forced him to work
for them for one year. Dring that one year he was reqired
to bar ars and to fight. After the respondent fled the
gerrillas, he was then caught by the militar and spent 18
months in the ar where again he was required to engage in
comat against the guerrillas. Te respondent deserted the
militar because his family was being killed by the
gerrillas. Tat included his father, his brother, an uncle
and a cousin.
After the respondent's desertion fro the militar,
he was arrested for this and put in jail for one week and then
sent to another unit where he and two other individuals
escaped. Te respondent believes that after these mny years
in the United States the gerrillas are still present in his
countr, and he fears retum, inforing the Court tht the
gerrillas as well as the mlitar have his records, and if he
were required to retur to El Salvador, pe would be subject to
har by either the guerrillas or the militar.
In his application for special rle cancellation of
removal/suspension of deportation, the respondent testified
that since he has arrived in the United States, he has always
worked; that he has never left the United States and has never
been arrested, charged, indicted, convicted of any crimes. He
A 94 127 863 3 July 29, 1999
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is now mrried and the father of two United States citizen
children, one aged two and a half, and the other' less than one
year.
Te respondent advised the Court that his wife does
not work and he is the sole supporter of his family ad cares
for all. Te respondent ackowledged that his famly does
receive soe social serice assistance through the Women and
Infat Care Program kow as WIC, but that the assistance
received on a monthly basis is solely food which includes milk
and beans, cheese and other byroducts.
Te respondent advised the Court that he is
concered about the well being of his family if reqired to
retur to Bl Salvador ad, in fact, is not sure whether or not
he would take his family. "I would have to think aout it, "
he exlained to the Court. Because he canot support them in
Bl Salvador and because the medical care available in Bl
Salvador is not the same as in the United States.
Te respondent also conceded that it would be ver
difficult for him to aandon his flesh and blood. Tus, the
respondent arges that he would suffer hardship, and his
children would suffer hardship if reqired to leave the United
States.
Under cross examination, the respondent advised that
he filed taxes in 1991 and 1992, in 1994, and 1996 and 1997,
but did not in 1993 or '95. He conceded that his daughters
A 94 127 863 4 July 29, 1999
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are of good health. Ad further, that while he was aware of
his obligation to notify the Inigration and Naturalization
Serice of any change of address since 1991, he had moved five
times and failed to notify the INS on at least two separate
occasions of his change of address.
Te respondent advised the Court that while he kew
he had to. notify the INS of a change of address, he did not
have a work perit, and that was the reason that he did not
notify them on those two particular occasions. Te respondent
also noted that his mother continues to live in El Salvador
and that he provides support for her sending her money each
month.
Te respondent, since his initial testimony before
the Court, has provided additional documentation to show that.
he is in full comliance with the income ta 1aws of this
countr and has provided additional inforation regardi
.
ng the
assistance that his family receives under the WIC Program.
Te respondent has asked the Court to exercise discretion in
granting his applications of asylum, special rle cacellation
of removal. In the alterative, the respondent has requested
voluntar departure in lieu of deportation.
The Inigration and Naturalization Serice opposes
the application of asylum, withholding of removal on the
grounds that the respondent does not meet his burden of proof,
and in addition opposes.the special rle cancellation of
A 94 127 863 5 July 29, 1999
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removal specifically intending that the respondent is
ineligible because he failed to notify the Imigration Serice
on at least two occasions of his chage of address.
Specifically the Imigration and Naturalization Serice noted
that the Board of Imigration Appeals in the decision of
Mtte o Wo, 13 I& Dec. 427 (BIA 1969), noted that it was
proper to deny a suspension of deportation case to a person
who had failed to report changes of address in violation of
Section 265 of the Imigration ad Nationality Act.
Furtherore, according to the Agency, the BIA held
that the period of 10 years continuous physical presence
begins to accre as of the date of the last or most recent
violation which renders a alien deportale. Te Agency also
cites to Circuit Court decisions regarding failure to notify
of change of address in the 8th Circuit, the 2nd Circuit, the.
3rd Circuit, as well as the District Circuit Court of Appeals.
Te Agency arged that the respondent's last
remvable act was comitted in March of 1998 when he failed to
report his change of address in Marland, ad that since 10
years have not elapsed since March of 1998, using the current
10-year-period of eligibility for physical presence, that the
respondent would be unable to demonstrate continuous physical
presence in the United States.
In all applications for relief fro removal in
deportation the burden of proof is on the respondent. He mst
A 94 127 863 6 July 29, 1999
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show by credible and probative evidence that he is entitled to
the relief that he seeks. The standard of review for the
applications that the respondent seeks is a preponderance of
the evidence.
To qalify for asylum, the respondent mst mee the
legal definition of refugee. Prsuant to Section
101(a) (42) (A) of the Imigration ad Nationality Act a refugee
is defined as a person who is unable or unwilling to retur to
his countr, unale or unwilling to avail himself of the
protection of his country because of past persecution and/or a
well-founded fear of persecution on account of race, religion,
nationality, memership'in a particula social group or
political opinion.
The ter persecution used in the legal definition of
refugee is not defined by statute. However, the Courts of
thisland have consistently held that persecution does
contemlate har or suffering that is inflicted upon a
individual because that indiidual possesses some belief or
characteristic that the persecutor finds offensive, will not
tolerate ad will overcome in the individual by meas of
\
punshent of some sort. Likewise the ter well-founded fear
used in the legal definition of refugee is not defined by
statute.
However, the Supreme Court of the United States in
the precedent decision of IS y. Caroza-Foneca, 1987,
A 94 127 863 7 July 29, 1999
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concluded that there mst exist some reasonale possibility
that a person may be subject to persecution in order to
prevail, and that asylum claims mst be adjudicated on a case
by-case basis.
In assessing claims of asylum, it is appropriate for
the Court to examine the coutr at issue with its hum
rights record both contemorary as well as historic. It is
appropriate for the Court to apply a reasonable person
stadard, to wit: whether or not a person under similar facts
and circumstaces would fear persecution.
In assessing the claim of asylum as well as
witholding of removal, in the instant case, the Court has
reviewed the testimony in evidence consistent with our Refugee
Act of 1990, the reglations promlgated to implement the
asylum and witholding laws of this nation at 8 C.F.R. 208.1
at seqel. A case precedence from the Board of Imigration
Appeals to include the historic decisions of Mtter of
Mogarri, ad Mtter of Acosta, both found in Volume 19, as
well as the Board of Imigration Appeals precedent decisions
of !m: B:which spea to imuted political opinion ad
mixed motive cases and cases cited therein.
The respondent came to this countr by his
representations in 1988 during the heart of a long ad bloody
civil war. He had been recrited and forced into Serice by
both the gerrilla and the military. He had lost mny family
A 94 127 863 8 July 29, 1999
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memers during the course of this civil war, and as a young
man decided to flee. Clearly the reasons for his departure
and arrival in the United States are understood. But the
respondent has not demonstrated with anyobjective evidence,
with any corroborative evidence, that today in 1999, if he was
reqired to retur to Bl Salvador, he would be subject to
persecution by the militar or the guerrillas on accout of
any one of the grounds enumerated by statute.
Indeed, based upon the testimony of the respondent
and the evidence that has been presented, there is no nexs to
the on account of reqirement under the law. The respondent
has not shown that he was subject to past persecution by the
gerrillas and/or the mlitar because of his race, religion,
nationality, memership in a particular social group or
political opinion.
In Mtter of Maldonado-Crz, found in Volume 19, the
Board of Imigration Appeals addressed the dilema of mny
young Salvadoran mles who were subject to forceful
conscription and/or forceful serice to the gerrillas of the
countr, noting that civil war and civil strife also contain
acts of intimation, violence, even rthlessness, but that does
not necessarily mean that such actions are on account of for
puroses of securing asylum protection in the United States.
Te Court believes in my ways the respondent's
case is ver similar to the Mldad-Crz case . . He has not
A 94 127 863 9 July 29, 1999
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estalished in that his burden of proving that he has been the
victim of past persecution on accout of any one or more of
the grounds enumerated by statute or that it is likely today,
11 years after he left his nation, that he would face
persecution on account of any one or more of tpe protected
grods by either gerrillas and/or militar of his countr.
Accordingly, as a matter of law, the Court finds
that the respondent find is ineligible for asylum. He is,
thus, ineligible for withholding of removal as the
respondent's burden of proof in establishing eligibility for
withholding of removal is a higher standard, to wit: the
respondent would be reqired to establish a clear probability
of his persecution if reqired to retuz to his homelad at
this tlme.
The Court would note tht its findings are
consistent with the precedent decisions within the 4th Circuit
Court of Appeals uder which this Court sits
;
in the 1986 .
y. Crz-Lez case, as well as the 1992 Hn-Corlio case.
In order for the respondent to be eligible for .
pecial rle cancellation/suspension of deportation, he mst
establish the following legal reqirements. Firstly, the
Court notes that it is obligated uder the Nicaragan
Adjustment and Central Aerican Relief Act to apply the old
law prior to the Illegal Imigration and Imigrant Refor
Responsibility Act of 1996. Tat is the respondent mst show
A 94 127 863 10 July 29, 1999
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M
that he has been physically present in the United States for
seven years, has been a person of good moral character during
that period of time, and would suffer extreme hardship to
himself ad to his two U.S. citizen children if reqired to
leave the United States.
Tere is no dispute that the respondent has been
physically present in the United States for at least the
reqisite period of time, although the respondent has been
charged with arriving in the United States in 1990, he has
testified that he arrived in 1988. Neither party disputes
that he is eligible for the benefits under NC.
Te stop time rle does not apply in special
cacellation cases pursuant to 8 C.F.R. 240.64(b), ad the
respondent would be eligible for a single asence of 90 days
or absences in the aggregate of no more than 180 days.
Physical presence is not an issue before the Court.
The respondent also mst estalish himself as a
person of goo moral character for seven years. He mst show
that he is not inadmissale under the criminal and security
grouds of our statute; that he is not engaged in any criminal
document fraud; that he is not an a

gravated felon; that he is

not a individual who has persecuted other individuals. The
good moral character of the respondent is not at issue. There
is no evidence to indicate that he is not qalified to
estalish his good moral character.
A 94 127 863
-W vt ivt tvtvt,W T T
11 July 29, 1999
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Pursuant to the interim regulations which became
effective on May 21, 1999, NC applicants are accorded a
presumtion of extreme hardship. Specifically at 8 C. F. R.
240. 64 (d) (1), a Salvadora who is registered as an AC class
memer or who applied for asylum on or before April 1, 1990,
who sumits an application for special rle cacellation,
suspension is presued to have estalished that deportation or
removal would result in extreme hardship.
The presumtion may be rebutted if the evidence in
the record estalishes that it is more likely than not that
neither the applicant nor a qalified relative would suffer
extreme hardship. S 8 C. F. R. Section 240.64 (d) (2) . Te
preamle to the regulation provides that the presumtion will
be overcome only under two circumstances, (1) in cases where
there is no evidence of factors associated with extreme
hardship, and (2) in cases where the evidence contained in the
record could significantly underine the basic assumtions on
which the presumtion is based. .. 64 Federal Record 27856
and 866 (May 21, 1999) .
Under the reglations, at 8 C.P. R. 240. 64(d) (3), the
Inigration and Naturalization Serice has the burden of proof
of estalishing that it is more likely than not that neither
the alien nor the qalifying relative would suffer extreme
hardship if the alien is deported. Tus, the respondent is
benef itted under the reglations of a presumtion and a lower
A 94 127 863 12 July 29, 1999
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TF
threshold, to wit: a preponderance of the evidence while the
Agency mst rebut the presumption under a higher standard of
review, to wit: more likely than not.
The Court presumes that the respondent would suffer
extreme hardship, that his children would suffer extreme
hardship, if he were required to leave the United States at
this time. The respondent, as noted aove in his testimony,
has supported the reco.rd through his testimony, as well as the
testimony of his wife, as to why the family believes they
`
would suffer hardship if the respondent orered removed and
deported.
Te Court finds that as a mtter of law the
respondent meets the three legal reqirements for special rle
cancellation of removal. It now turs to the Goverent's
argment that the respondent does not qalify under the
>
physical presence test because he failed to notify the Agency
%
of the change of address.
In the Board of Imigration Appeals precedent
decision of Frtizalila, Int. Dec. 3 3 40, the BIA held among
other things for an alien to be barred from eligibility, in
this case a waiver under Section 212(c) of the Inigration and
Nationality Act, as one who is "deportable11 by reason of
having comitted a criminal offense covered by one of the
criminal deportation grounds enumerated in the statute, he
mst be chared with and found deportable on such grounds.
A 94 127 863 13 July 29, 1999
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In ii#, at footnote three, the Board of
Itigration Appeals cited a variety of cases in different
settings for different benefits which consistently show that
an individual mst be charged and found deportale for an
offense before they would be precluded from being heard on
applications for relief.
Indeed, the decision of Matter of C, at 12 I&
Dec. 710 (BIA 1968), found that the "is deportale" langage
for suspension of deportation puroses to reqire a charge and
a finding of deportaility on that ground before the person
would be ineligible to be heard.
In the instant case, the Imigration Serice, while
it arges that the respondent violated the reqirements of
section 265, to wit: failed to notify of a change of address,
has not charged the respondent under any deportable ground
citing failure to notify a change of address. Specifically,
Section 237(a) (3) (A) of the Ingration and Nationality Act,
deal with charges of change of address.
Moreover, and notwithstanding this 1egal analysis,
the Court trly believes that the spirit and the intent of the
Nicaraga Central Aerican Relief Act would be violated if
all individuals, who failed to notify the INS of a change of
address, would be preemted from consideration. Te purose
of the Nicaragua Adjustment Central Aerican Relief Act is to
provide a opportunity of staility and perency for
A 94 127 863 14 July 29, 1999
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. -~~-' * .

TF
qualified Nicaraguns, Salvadorans, and Guatemalans who fled
their countries in the 1980s and early 1990s because of
serious and significant civil strife, civil war and record
numbers of atrocities and human rights violations.
The United states Government, through special
legislation, has protected these individuals for many years.
In its wisdom, it is has now chosen to allow qualified
individuals to establish peranency in the United States so.
that they may benefit fully from peranent residence. They
may benefit fully for themselves and qualified family members
and prosper in this country, and thus, make significant
contributions to this country.
Te Court believes the spirit and the intent of the
statute is not one in which we make the off er in one hand and
withdraw it with the other. For these reasons, the Court
finds that the respondent is statutorily eligible for Section
203, NACA benefits under the cancellation of
removal/suspension of deportation. The application is
granted, and these proceedings are dismissed. And the court
so orders.
A 94 127 863 15 July 29, 1999

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