Professional Documents
Culture Documents
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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
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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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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.
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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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