elena hernandez-hernandez, a074 571 777 (bia mar. 31, 2014)

Lujan, Melissa R., Esq. Michael Brooks-Jimenez, P.C. 5708 S. Western Avenue Oklahoma City, OK 73109

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - OKC 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800

Name: HERNANDEZ-HERNANDEZ, ELE ... A 07 4-571-777

Date of this notice: 3/31/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Guendelsberger, John Grant, Edward R. Hoffman, Sharon

Sincerely,

DorutL c l1AA)

Donna Carr Chief Clerk

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Elena Hernandez-Hernandez, A074 571 777 (BIA Mar. 31, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A074 571 777 - Dallas, TX

In re: ELENA HERNANDEZ-HERNANDEZ

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Melissa R. Lujan, Esquire

ON BEHALF OF DHS: Michelle Allen-McCoy Assistant Chief Counsel

APPLICATION: Adjustment of status

MAR 31 2014

The respondent, a native and citizen of Mexico, has filed an appeal from the Immigration Judge's decision dated February 23, 2012, denying her application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), in the exercise of discretion. We will remand the case to the Immigration Judge for further proceedings.

The respondent argues on appeal that the Immigration Judge's discretionary denial of her application to adjust status was erroneous and an abuse of discretion and should be reversed. Specifically, the respondent argues that the Immigration Judge erred in (1) denying her application pursuant to Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), on the basis of her purported failure to comply with the Court's instructions, and in (2) not weighing her positive equities present in her case against her negative factors, as set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970). See Respondent's Appeal Brief at 4-7.

The respondent asserts that the facts in her case differ from those in Matter of Almanza, supra, in that, in that case, the alien did not submit the documentation that was specifically requested of him and gave no reason for failing to do so. Here, the respondent argues that she did take substantial steps to comply with the specific instructions the Immigration Judge gave her on November 19, 2010, including hiring a tax preparer on December 21, 2010, to prepare her income tax returns, obtaining a tax ID number, paying a portion of a bill she received from the Internal Revenue Service (IRS) in February 2010, and bringing to court documents evidencing the actions she took to comply with the Immigration Judge's instructions. The respondent maintains that the Immigration Judge's refusal to accept the docwnents she brought to court on April 21, 2011 {Tr. at 53), and consider her reasons for not having fully complied with the instructions he gave her was not reasonable. The respondent further argues that the Immigration Judge did not weigh her key negative factor of not having filed taxes in the United States against her many positive equities, which include her 20-plus years living in the United States with a similarly long history of stable employment, her having two United States citizen children, and her lack of a criminal history. According to the respondent, had the Immigration Judge weighed all the positive and negative factors in her case, he would have found that the positive factors prevailed in her favor. Id.

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' )

A074 571 777

We agree with the Immigration Judge that the respondent did not show full compliance with his instructions despite the five-month continuance he granted her on November 19, 2010. Specifically, the respondent did not bring to court on April 21, 2011, evidence that she had either paid all her delinquent taxes or established a payment plan with the IRS and complete the first two payments. Nor did she bring evidence that she filed her 2005 income tax return (I.J. at 8-13; Tr. at 44-47, 50-53). However, we agree with the respondent that the facts in her case differ somewhat from those in Matter of Almanza, supra, so that it would have been reasonable for the Immigration Judge to at least accept the evidence she brought to court on April 21, 2011, and proceed with the adjudication of her application for adjustment of status. We also agree with the respondent that the Immigration Judge's decision should have included an analysis of the positive and negative equities in the respondent's case. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). As such, we will remand the case for the Immigration Judge to give both parties another opportunity to submit additional evidence pertinent to the issue of the respondent's eligibility for adjustment of status as a matter of discretion and thereafter issue a new decision that includes an analysis of the positive and negative equities in the respondent's case. However, we express no opinion regarding the ultimate outcome of these removal proceedings at the present time. See Matter of L-0-G-, 21 I&N Dec. 413 (BIA 1996). Accordingly, the following order shall be entered.

ORDER: The case is remanded to the with the foregoing opinion.

igration Judge for further proceedings consistent

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··'\MICHAEL BROOKS-JIMENEZ I PC LUJAN, MELISSA R. 5708 S. WESTERN AVE. OKLAHOMA CITY, OK 73109

IN THE MATTER OF HERNANDEZ-HERNANDEZ, ELENA

1100 COMMERCE ST., ROOM 404 DALLAS, TX 75242

FILE A 074-571-777

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Feb 23, 2012

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ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPiAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c} {3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) {3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6) I

8 U.S.C. SECTION 1229a(c} (6} IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRAT�ON' COURT 1100 COMMERCE ST., ROOM 404 DALLAS, TX 75242

X OTHER: WRITTEN DECISION OF THE IMMIGRATION JUDGE

CC: ALLEN-MCCOY, MICHELLE 125 E. HWY 114, STE 500 IRVING, TX, 75062

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COURT CLERK IMMIGRATION COURT

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UNITED STATES DEPARTMENT OF JUSTICE _ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT DALLAS, TEXAS

IN THE MATTER OF: ) )

HERNANDEZ-HERNANDEZ,ELENA ) ) ) )

RE SPONDENT )

IN REMOVAL PRO CEEDING S

A 074-571-777

CHARGES: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act), as amended, in that you are an alien present in the United States without being admitted or paroled, who arrived in the United States at any time or place other than as designated by the Attorney General

APPLICATION(S): Adjustment of Status under Section 245(i) of the Act

ON BEHALF OF THE RESPONDENT:

Melissa Lujan, Esq. Michael Brooks-Jimenez, P C 5708 S. Western Ave. Oklahoma City, OK 73109

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

Michelle Allen-Mc Coy, Esq. Assistant Chief Counsel - I CE 125 E. John Carpenter Fwy., Ste. 500 Irving, TX 75062-2324

ORDER OF THE COURT

The Respondent is seeking adjustment of status for the above-captioned case. For

the following reasons, the Respondent's application for adjustment of status will be

DENIED.

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL AND PROCEDURAL HISTORY

The Respondent is a female, native and citizen of Mexico. Exhibit 1. She entered

the United States at or near Eagle Pass, Texas on or about July 16, 1999. Id. She was not

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then admitted or paroled by an Immigration Officer. Id . • - ' \ : • • • 'f ?. � • - •

On September 16, 2009 the Respondent was personally served with a Notice to

Appear (NTA), charging her with removability under Section 212(a)(6)(A)(i) of the

Immigration and Nationality Act (the Act). Id.

At a hearing on February 2, 2010, the Respondent, through counsel, admitted

factual allegations 1-4, and conceded the charge of removability contained in the NTA.

Thus, the Court concluded that the charge of removability had been established by clear

and convincing evidence, and that the Respondent was removable as charged. The

Respondent designated Mexico as the country of removal.

At a hearing on July 2 7, 2010 the Respondent, through counsel, indicated her

intention to seek adjustment of status under Section 245(i) of the Act based on her

previously approved 1-130 petition. See Exhibit 3.

On September 10, 2010 the Respondent submitted her Application to Register

Permanent Residence or Adjust Status (Form 1-485). Exhibit 4.

On November 19, 2010 the Court conducted a hearing on the merits of the

Respondent's application for adjustment of status. During the hearing, summarized infra,

the Respondent testified that she failed to file income taxes during her time living and

working in the United States. Following the Respondent's testimony, the Court offered

the Respondent a continuance so that she could rectify her failure to pay income taxes.

Specifically, the Court directed the Respondent to provide proof at her next hearing that

she has filed her 2005, 2006, 2007, 2008, and 2009 income tax returns and that she has

either paid all of the taxes owed or has signed, filed, and agreed to a payment schedule

with the Internal Revenue Service (IR S) and made the first two payments. The Court

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also made clear to the Respondent that if she did not comply with the Court's instructions

the Court would deny her application for adjustment of status as a matter of discretion.

Both the Respondent and Respondent's counsel stated that they understood the

instructions.

At a hearing on April 21, 2011 the Respondent appeared before the Court, with

counsel, without having paid the taxes owed or having agreed to a payment plan with the

IRS for the years specified by the Court. 1 The Respondent also admitted, through

counsel, that she failed to file her 2005 tax returns as the Court had directed. The Court

found that the Respondent failed to comply with the Court's instructions, and therefore

her application for adjustment of status would be denied as a matter of discretion.

A. Documentary Evidence

EVIDENCE

The following documents are in the record of proceedings:

Exhibit 1: · Notice to Appear Exhibit 2. Record of Deportable/Inadmissible Alien (Form I-213) Exhibit 3: 1-130 Approval Notice (Form 1-797) Exhibit 4: Respondent's Application for Adjustment of Status (Form 1-485) Exhibit 5: Supporting Documents for Respondent's 1-485 Application

B. Testimonial Evidence

Direct Examination

The Respondent currently resides in Hinton, Oklahoma, and has lived there for

about twenty years. She has four children, one of whom-her fourteen year old

daughter-still lives at home. Two of the Respondent' s children are United States

citizens, and her other children are currently in the United States without authorization.

1 Although the Respondent stated that she had filed her 2006-2009 tax returns, she admitted that she had not agreed to a payment plan with the IRS and had not made the first two payments.

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The Respondent has been separated from the father of her children for 11 years

and is not currently married. The Respondent considers herself a single mother and the

father does not help with the children.

The Respondent currently works as a cook at a restaurant. She has worked at the

same restaurant for about 15 years, and has always been paid in cash. The Respondent

has never filed an income tax return in the United States.

The Respondent's 30-year old son assisted her in applying for her green card.

Her son has lived in Hinton, Oklahoma his whole life.

The Respondent stated that she has previously had problems with her immigration

status. One day the Respondent was in a car with her two daughters and her sister on the

way to the city when they were stopped by authorities. They were then brought to the

immigration office. When they arrived at the immigration office they were arr�sted. The

Respondent's husband at that time, who was a legal resident in the United States, arrived

at the immigration office and picked everyone up. The husband the Respondent was

referring to was the father of three youngest children; her oldest child has a different

father.

The Respondent then had to go before an immigration judge, who granted the

Respondent voluntary departure. The Respondent then left the United States and went to

Mexico with her then husband and two daughters that were born in Mexico. When the

Respondent arrived in Mexico she lived at her sister's house for about two years.

The Respondent's children went to school in Mexico and did well. The

Respondent then came back to the United States illegally because it was too expensive to

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live in Mexico. The father of her children helped her by giving her about $100. When

the Respondent came to the United States the second time she lived with her sister.

The Respondent has two siblings living in the United States, both of whom have

legal documentation. Her United States citizen son is employed at an oil company.

Cross-Examination

When asked whether the Respondent was aware that she was required to file taxes

in the United States the Respondent stated "Yes. " The Respondent stated that if the judge

grants her petition she would pay her taxes. When asked why she didn't pay her taxes in

the past, the Respondent stated that she "didn't know" and that her employer only paid

her in cash. When asked whether she did not know that she was supposed to pay taxes

even though she lived in Oklahoma for 20 years, the Respondent stated "No. " When

asked when she learned that she was supposed to pay income taxes the Respondent stated

that she did not know, but it was maybe two years ago.

When asked why she did not pay her taxes for the last two years even though she

was aware of this obligation the Respondent stated that she did not know. When asked

why the Court should believe her, the Respondent stated that she believes she can pay her

taxes.

When asked whether, at the time she was granted voluntary departure, she was

told that she was not supposed to enter the U. S. without lawful status, the Respondent

stated "Yes, they did tell me." When asked whether she had lawful status when she

returned to the United States the second time, the Respondent stated "No." When asked

why she ignored that requirement the Respondent stated that it is hard to live in Mexico

and that everything is so expensive. When asked whether she thought the law did not

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apply to her because it was expensive in Mexico the Respondent stated "Yes." When

asked whether she thought the federal tax laws apply to her the Respondent stated that "I

believe so, yes."

Redirect Examination

The Respondent stated that she only went to school in Mexico until the third

grade and has never had any education in the United States. When asked whether she

wanted to go back to Mexico the Respondent stated that she did not, but that her husband

told her that they had to go back to Mexico. Her siblings, however, were concerned

about her going back to Mexico.

The Respondent stated that she did not know how to get an identification number

so that she could file her taxes. The Respondent stated that her daughter helped her

obtain an attorney for these proceedings and that her daughter and brother helped her get

her paperwork together. The Respondent stated that her oldest son helps her with the

daughter who lives at home with her. When asked whether her family helps her make a

lot of her decisions the Respondent stated "Yes."

When asked whether she was nervous in court the Respondent stated "more or

less." The Respondent stated that she understood all of the questions being asked of her

and that she believed she was being honest to the court.

Recross-Examination

When asked whether the Respondent was brought to the United States against her

will, the Respondent stated "No, I also wanted to come." When asked whether she

understood it is her responsibility to file income taxes and not somebody else's the

Respondent stated "Yes."

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Questions by the Immigration Judge

When asked whether the Respondent has ever been convicted of a crime, she

stated "No." When asked whether she has ever been arrested aside from being detained

by the immigration authorities the Respondent stated "No. " When asked how old her

four children are the Respondent stated her children were 14, 24, 26, and 30. The

Respondent stated that her 30-year old son assisted her in filing the application presently

before the Court.

CREDIBILITY DETERMINATION

The Respondent's application for adjustment of status was made after May 11,

2005, the effective date of the REAL ID Act. Therefore, her application is subject to the

credibility and corroboration standards contained at INA§ 240(c)(4). Under INA§

240(c)(4)(C), a credibility determination by an Immigration Judge concerning an

application for relief from removal is based on the following criteria:

[c]onsidering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. INA§ 240(c)(4)(C).

Here, although the Court has concerns regarding the Respondent's failure to pay her

income taxes, the Court finds that under the totality of the circumstances the Respondent

testified credibly.

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LEGAL STANDARDS AND ANALYSIS

The Respondent in this case is seeking adjustment of status pursuant to

Section 245(i) of the Act. INA § 245(i) states in relevant part:

(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-

(A) who-

(i) entered the United States without inspection .. .

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203( d) of this title) of-

(i) a petition for classification under section 204 [8 U. S. C. § 1154] that was filed with the Attorney General on or before April 30, 2001 . ..

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equaling $1,000 as of the date of receipt of the application ....

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if;

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and,

(B) an immigrant visa is immediately available to the alien at the time the application is filed.

The alien bears the burden of establishing eligibility for adjustment of status. See

INA§ 240(c)(4)(a)(i).2 If eligibility is established, adjustment of status may be granted

in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien

2 As noted above, the Respondent's application for adjustment of status was made after May 11, 2005, the effective date of the REAL ID Act. Therefore, her application is subject to the standards contained in INA § 240(c)(4).

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applying for relief bears the burden of demonstrating that relief is merit�d in the exercise

of discretion. See INA§ 240(c)(4)(a)(ii); See als o Matter of Ibrahim, 18 I&N Dec. 55

(BIA 1981); Matter of Cavaz os, 17 I&N Dec. 215 (BIA 1980); Matter of Blas, 15 I&N

Dec. 626 (BIA 1974, A.G. 1976). The Court's discretionary decision depends on the

facts of the particular case and, as such, is "a matter of discretion and of administrative

grace, not mere eligibility; discretion must be exercised ... even though the statutory

prerequisites have been met." Matter of Ortiz-Priet o, I 1 I&N Dec. 317, 319 (BIA I 965);

see als o Matter of Blas, 15 l&N Dec. at 628. A favorable exercise of administrative

discretion is warranted where positive factors, such as family ties, length of residency,

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and hardship, outweigh adverse considerations. Matter of Arai, 13 l&N Dec. at 496.

However, where adverse factors are present, it may be necessary for the applicant to

present unusual or outstanding countervailing equities to merit a grant of an application

for adjustment of status. Id.

Here, there is no dispute that the Respondent has met the basic requirements for

eligibility for adjustment of status under INA § 245(i): The Respondent admitted that she

was not inspected or paroled by an Immigration Officer when she entered the United

States; an I-130 petition was filed on her behalf prior to April 30, 2001; she paid the

required fee; the Respondent is eligible to receive an immigrant visa and is admissible for

permanent residence; and a visa is immediately available to her based on her previously

approved 1-130. See Exhibit 1; Exhibit 3; Exhibit 5, Tab C. Therefore, the minimum

requirements provided in INA § 245(i) have been satisfied.

However, as noted above, the Respondent also bears the burden of establishing

that she merits a favorable exercise of discretion. The Court finds, for the following

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reasons, that the Respondent has not met this burden, and therefore the Court will deny

the Respondent's application as a matter of discretion.

Here, the Court's primary discretionary concern was the Respondent's failure to

file income taxes despite working in the United States for almost 15 years. The

Respondent stated during testimony that she has worked in the same restaurant for almost

15 years and admitted that she did not file income taxes during that entire period. The

Respondent's only explanation for her failure to file her income taxes was that she "did

not know" that she had to. The Court finds this explanation to be unsatisfactory.

Furthermore, the Respondent admitted during testimony that "maybe two years ago" she

did learn that she was indeed required to pay income taxes. Despite this knowledge,

however, the Respondent also failed to file her income taxes for the past two years.

Given the length of time the Respondent failed to file income taxes, and that she still

failed to file even after admitting she was aware that she was required to, the Court

considered this issue to be a significant negative discretionary factor.

Despite its concerns, the Court wished to afford the Respondent every opportunity

to rectify this negative discretionary factor, and thereby meet her burden of proof to show

that she merited a favorable exercise of discretion. Thus, under Matter of Almanza

Arenas, the Court directed the Respondent to provide proof at her next hearing that she

had filed her 2005, 2006, 2007, 2008, and 2009 income tax returns and that she has either

paid all of the taxes owed or has signed, filed, and agreed to a payment schedule with the

Internal Revenue Service (IRS) and made the first two payments. In Matter of A/manza

Arenas, the Board of Immigration Appeals (BIA) upheld an Immigration Judge's

determination that a respondent failed to meet his burden of proof when he did not

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provide additional documents requested by the court and gave no reason for failing to do

so. 24 I&N Dec. 771, 775-76 (BIA 2009). In that case, the BIA also noted that "by

specifying on the record the documents that he expected the respondent to produce and

granting the respondent, who was represented by counsel, a continuance to obtain the

documents, the Immigration Judge followed a procedure that we find appropriate and

would encourage." Id. at 777, n. 4.

Here, in an effort to provide the Respondent with ample time to provide the

requested documents, the Court gave the Respondent a continuance of nearly five

months. The Court also made it clear to the Respondent that if she failed to comply with

the Court's instructions the Court would deny 4er application for adjustment of status as a

matter of discretion. The Court took pains to ensure that both the Respondent and her

attorney understood precisely what the Court expected the Respondent to provide at the

next hearing. However, as noted above, the Respondent appeared at her April 21, 2011

without having complied with the Court's instructions to either pay all of her delinquent

truces or agree to a payment plan with the IR S and complete the first two payments. 3 In

addition to failing to comply with the Court's instructions to agree to a payment plan, the

Respondent also admitted that she failed to file her 2005 tax returns at all. The

Respondent provided no explanation as to why she failed to comply with the Court's

instructions. Thus, under Matter of Almanza-Arenas, the Court finds that the Respondent

has failed to satisfy her burden of proof to show that her relief is merited in the exercise

3 Although the Respondent stated that she fiJed her 2006-2009 tax returns, the Court made clear to the Respondent at her previous hearing that this would not be enough. The Court specifically instructed the Respondent to appear at her April 21, 2011 hearing having either paid all of the taxes she owed between 2005 and 2009 or having agreed to a payment plan with the IRS and made the first two payments. Thus, as the Respondent was instructed, the simple filing of her 2006-2009 tax returns was insufficient to comply with Matter of Almanza-Arenas.

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of discretion as required under INA§ 240(c)(4)(a)(ii). See als o Matter of Ibrahim, 18

I&N Dec. 55 (BIA 1981); Matter of Cavaz os, 17 I&N Dec. 215 (BIA 1980).

In addition to her failure to meet her burden to show that she merits a favorable

exercise of discretion, the Court also notes that the Respondent has failed to comply with

26 U.S.C. § 6039E of the Internal Revenue Code. That provision requires that,

notwithstanding any other provision of law, any individual who applies for lawful

permanent residence in the United States must include with any such application a

statement that provides "information with respect to whether such individual is required

to file a return of the tax imposed by chapter 14 for such individual's most recent 3

taxable years." 26 U.S.C. § 6039E(a)-(b)(3). Thus, under the statute above, the

Respondent was required to provide a statement as to whether she had to file income tax

returns for the three taxable years preceding her application. Here, the Respondent filed

her application to register permanent residence or adjust status (I-485) on September 10,

2010. The Respondent was therefore required to provide a statement providing

information with respect to whether she was required to file income tax returns between

2008 and 2010. However, when the Respondent applied for adjustment of status on

September 10, 2010, she only provided information with respect to her taxable income

for 2009, meaning she was not in compliance with the statute as she did not provide

information related to 2008 and 20 I 0. Although not dispositive, the Respondent's failure

to comply with 26 U.S.C. § 6039E is an additional negative discretionary factor, which,

given the Respondent's failure to produce the documents requested of her, she failed to

address to the Court's satisfaction.

4 The "tax imposed" by chapter I includes, among other things, the income tax owed for married and unmarried individuals at various income levels. See 26 U.S.C. § l(a)-(d).

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For the reasons stated above, the Court will deny the Respondent's application for

adjustment of status as a matter of discretion.

CONCLUSION

Accordingly, the following Orders will be entered:

ORDERS

IT IS HEREBY ORDERED that the Respondent's application for adjustment of

status pursuant to Section 245(i) of the Immigration and Nationality Act be DENIED.

IT IS FURTHER ORDERED that the Respondent by REMOVED to

MEXICO on the charges contained in the Notice to Appear.

This d..J day of February, 2012

13

Immigration Judge

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