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250 

Matter of Sanny Montefar NEMIS, Respondent 

Decided March 8, 2021

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is 

overbroad relative to the generic definition of a crime involving moral turpitude, and 

divisible between the offense clause, which may or may not involve moral turpitude, 

and the defraud clause of the statute, which is categorically a crime involving moral 

turpitude. 

(2) To determine whether a conspiracy conviction under the offense clause of 18 U.S.C. 

§ 371 constitutes a crime involving moral turpitude, the underlying statute of conviction 

should be examined under the categorical, and if applicable, modified categorical 

approach. 

(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and 

misuse of visas, permits, and other documents, is overbroad and divisible such that the 

modified categorical approach is applicable and it was proper to consider the conviction 

records. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified. 

(4) The respondent’s conviction for conspiracy to commit visa fraud in violation of 

18 U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude 

under the modified categorical approach. 

FOR RESPONDENT: David K. Kim, Esquire, Flushing, New York 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Seth Goldman, Assistant 

Chief Counsel 

BEFORE: Board Panel: WILSON, GOODWIN, and GORMAN, Appellate Immigration 

Judges. 

GOODWIN, Appellate Immigration Judge: 

 In a decision dated July 9, 2019, an Immigration Judge found the 

respondent was inadmissible under section 212(a)(2)(A)(i)(I) of the 

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), as 

an alien convicted of a crime involving moral turpitude, and denied his 

application for cancellation of removal under section 240A(a) of the Act, 

8 U.S.C. § 1229b(a) (2018). The respondent has appealed from this decision. 

The appeal will be dismissed. 
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251 

 The respondent is a native and citizen of the Philippines who was 

accorded lawful permanent resident status in 2010. On November 29, 2016, 

he was convicted of conspiracy to commit visa fraud in violation of 18 U.S.C. 

§§ 371 and 1546(a) (2012). Thereafter, he traveled abroad and sought to 

reenter this country. Based on his conviction, the Department of Homeland 

Security (“DHS”) deemed him to be seeking an admission into the United 

States and placed him in removal proceedings, charging him with 

inadmissibility under section 212(a)(2)(A)(i)(I) of the Act.1

 The Immigration Judge determined the respondent’s offense constitutes 

a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act, 

rendering him inadmissible as charged. The Immigration Judge further 

found the respondent statutorily ineligible for cancellation of removal and 

alternatively denied that application in the exercise of discretion. The 

respondent challenges these determinations on appeal. 2 We review the 

Immigration Judge’s findings of fact for clear error, but we review questions 

of law, discretion, and judgment, and all other issues de novo. 8 C.F.R. 

§ 1003.1(d)(3)(i), (ii) (2020). 

I. INADMISSIBILITY 

A. Legal Framework 

 Generally, lawful permanent residents, like the respondent, who are 

returning to the United States from traveling abroad, “shall not be regarded 

as seeking an admission into the United States . . . unless the alien . . . has 

committed an offense identified in section 212(a)(2).” Section 

101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2018). The DHS 

has the burden of proving by clear and convincing evidence that this 

exception to the general rule for lawful permanent residents applies. Matter 

of Rivens, 25 I&N Dec. 623, 625 (BIA 2011). In this case, the DHS was 

required to establish that the respondent committed a crime involving moral 

turpitude under 212(a)(2)(A)(i)(I) of the Act, rendering him inadmissible. 

Section 101(a)(13)(C)(v) of the Act. 

 In determining whether the respondent’s conviction is a crime involving 

moral turpitude, we first apply the categorical approach, in which we look 

 

1

 The notice to appear originally contained three charges; however, the DHS withdrew 

the other two charges. 

2

 We note that neither party argues the respondent’s conviction is subject to the petty 

offense exception under section 212(a)(2)(A)(ii)(II) of the Act. The object of the 

conspiracy, namely, a conviction under 18 U.S.C. § 1546(a), is not punishable as a 

misdemeanor. Therefore, the maximum penalty possible under 18 U.S.C. § 371 exceeds 

one year, such that the petty offense exception does not apply. 
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252 

solely to the minimum criminal conduct necessary to satisfy the essential 

elements of the crime, not the particular circumstances of the respondent’s 

conduct. See Mota v. Barr, 971 F.3d 96, 99 (2d Cir. 2020). If the statute is 

overbroad, meaning that it criminalizes some conduct that involves moral 

turpitude, and some that does not, we next consider whether the statute is 

divisible. Obeya v. Sessions, 884 F.3d 442, 447 n.4 (2d Cir. 2018). A statute 

is “divisible” if it “comprises multiple, alternative versions of the crime.” Id.

(quoting Descamps v. United States, 570 U.S. 254, 262 (2013)). If the statute 

of conviction is divisible, we apply the modified categorical approach and 

examine permissible documents from the respondent’s record of conviction 

to determine “what crime, with what elements [the respondent] was 

convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citing

Shepard v. United States, 544 U.S. 13, 26 (2005)) (identifying documents 

that are permissible for courts to examine in determining the elements of a 

conviction under the modified categorical approach, including, inter alia, 

charging documents, jury instructions, and plea agreements). 

B. Conspiracy under 18 U.S.C. § 371 

1. The Statute is Overbroad and Divisible 

 The relevant statute, 18 U.S.C. § 371, criminalizes “two or more persons 

[who] conspire either to commit any offense against the United States, or to 

defraud the United States, or any agency thereof in any manner or for any 

purpose, and one or more of such persons do any act to effect the object of 

the conspiracy.” Applying the categorical approach, we conclude that 

18 U.S.C. § 371 is facially overbroad, since it punishes both crimes involving 

moral turpitude and crimes which may not involve moral turpitude within the 

meaning of section 212(a)(2)(A)(i)(I) of the Act, because it covers not only 

conspiracy to defraud, but also “to commit any offense.” Cf. Matthews 

v. Barr, 927 F.3d 606, 620 (2d Cir. 2019) (“Where a statute is not facially 

overbroad, the realistic probability approach requires a noncitizen to 

demonstrate ‘that the State actually prosecutes the relevant offense in cases’ 

that fall outside the federal definition.” (citation omitted)). 

 The United States Court of Appeals for the Second Circuit, in whose 

jurisdiction this case arises, has found that 18 U.S.C. § 371 can be violated 

in two different ways: either by “conspiring to commit ‘offenses’ that are 

specifically delineated in other federal statutes,” or by “conspiring to 

‘defraud the United States.’” United States v. Helmsley, 941 F.2d 71, 90 

(2d Cir. 1991); see also United States v. Rosenblatt, 554 F.2d 36, 40 (2d Cir. 

1977) (explaining that 18 U.S.C. § 371 is the “general federal conspiracy 
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253 

statute,” which may be prosecuted under the “offense” clause or the 

“defraud” clause). Thus, whether the respondent’s statute of conviction is 

divisible depends upon whether the offense clause and the defraud clause are 

simply separate means of committing the conspiracy offense, or whether the 

offense clause and the defraud clause each have unique elements that must 

be proven for a conviction under the respective clause of 18 U.S.C. § 371. 

See Mathis, 136 S. Ct. at 2249. 

 In undertaking this inquiry, we note “[w]ithout question, the object of a 

conspiracy constitutes an essential element of the conspiracy offense.” 

United States v. Roshko, 969 F.2d 1, 5 (2d Cir. 1992). Notably, to be 

convicted under the offense clause of 18 U.S.C. § 371, not only must the 

conspirators have agreed to commit an offense, they also “must have agreed 

to commit the same offense to satisfy the rule that they have agreed on the 

essential nature of the plan.” United States v. Stavroulakis, 952 F.2d 686, 

691 (2d Cir. 1992) (emphasis added) (citing Rosenblatt, 554 F.2d at 41). 

Conversely, when the Government charges a defendant under the defraud 

clause of 18 U.S.C. § 371, it must prove an agreement on the essential nature 

of the alleged fraud. Rosenblatt, 554 F.2d at 42. As the object of the 

conspiracy is an essential element of 18 U.S.C. § 371, and the offense clause 

and defraud clause each has a distinct object, each clause has its own unique 

element that must be proven for a conviction under that clause.3

 See Roshko, 

969 F.2d at 2; Stavroulakis, 952 F.2d at 691; Rosenblatt, 554 F.2d at 41–42; 

see also United States v. Alston, 77 F.3d 713, 718 (3d Cir. 1996) (“While the 

‘offense’ clause requires reference to another part of the criminal code, the 

‘defraud’ clause does not, simply because the substantive offense (fraud) is 

contained in the statute itself.”). 

 Additionally, we find the Second Circuit’s discussion in Helmsley, 941 

F.2d at 91, relating to 18 U.S.C. § 371 to be instructive in determining 

whether the statute’s offense clause and defraud clause each contain separate 

elements that must be proven in order for a defendant to be convicted under 

each specific clause. In that case, a defendant was charged under both the 

offense clause and the defraud clause of 18 U.S.C. § 371. The indictment 

alleged that the defendant conspired to accomplish five possible illegal 

objectives, one of which was to defraud the United States, and the other four 

each involved an agreement to violate a specific law. The jury was instructed 

it must be unanimous as to which of the five alleged illegal objectives the 

defendant conspired to accomplish. Given the jury had to decide 

unanimously whether the defendant in that case either conspired to defraud 

 

3

 We acknowledge, on occasion, the offenses will “overlap when the object of a 

conspiracy is a fraud on the United States that also violates a specific federal statute.” 

Helmsley, 941 F.2d at 90. 
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254 

the United States, or conspired to commit a specific offense (one of the four 

possible offenses enumerated in the indictment), we conclude the defraud 

clause and the offense clause each have unique elements that must be proven 

for a conviction under 18 U.S.C. § 371. See Mathis, 136 S. Ct. at 2248–50 

(explaining that the elements of an offense must be agreed upon by a jury). 

We further conclude that 18 U.S.C. § 371 defines multiple crimes and is 

therefore divisible. See id. at 2249. 

2. The Respondent was Convicted under the Offense Clause 

 As we have determined the respondent’s offense of conviction is divisible, 

we apply the modified categorical approach and examine the permissible 

Shepard documents from the respondent’s record of conviction to determine 

“what crime, with what elements [the respondent] was convicted of.” Id.

 Here, the record of conviction includes a single-count criminal indictment, 

a plea transcript, and a judgment of conviction. The single count in the 

indictment—Count One—provides the respondent conspired to “commit an 

offense against the United States, to wit, immigration fraud.” The judgment 

of conviction makes clear the respondent pleaded guilty to this single-count 

criminal indictment. Thus, given our examination of the charging document 

and the judgment of conviction—both of which are proper Shepard 

documents—we are satisfied the respondent was convicted of conspiracy to 

commit an offense against the United States under the offense clause of 

18 U.S.C. § 371. 

 When an alien is convicted of general Federal conspiracy under 18 U.S.C. 

§ 371, the first determination is whether the alien was convicted under the 

offense clause or the defraud clause of the statute. Where an alien is 

convicted under the defraud clause, the inquiry ends, because this clause 

categorically constitutes a crime involving moral turpitude. Fraud 

convictions have long been held to constitute crimes involving moral 

turpitude. See Mendez v. Mukasey, 547 F.3d 345, 347 (2d Cir. 2008). 

However, where, as here, an alien is convicted under the offense clause, we 

conduct categorical, and, if applicable, modified categorical analyses of the 

underlying statute of conviction to determine if the underlying offense 

involves moral turpitude. See Matter of Vo, 25 I&N Dec. 426, 429 (BIA 

2011) (concluding that it is necessary to examine the underlying substantive 

crime in determining whether a conviction for an inchoate offense renders 

and alien removable).4

 

4

 Whether a general Federal conspiracy under 18 U.S.C. § 371 under the offense clause 

may also constitute a crime involving moral turpitude, where the underlying substantive 
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255 

C. Fraud and Misuse of Visas, Permits, and Other Documents 

18 U.S.C. §1546(a) 

1. The Statute is Overbroad 

 Having determined that the respondent was convicted under the offense 

clause of 18 U.S.C. § 371, which includes offenses that may or may not 

involve moral turpitude, we analyze under the categorical approach whether 

the underlying crime of fraud and misuse of visas, permits, and other 

documents under 18 U.S.C. §1546(a) constitutes a crime involving moral 

turpitude. See id. at 428–30. 

 At the time of the respondent’s conviction, 18 U.S.C. § 1546(a) punished 

by fine or imprisonment, the following: 

Whoever knowingly forges, counterfeits, alters or falsely makes any immigrant or 

nonimmigrant visa, permit, border crossing card, alien registration receipt card, or 

other document prescribed by statute or regulation for entry into or as evidence of 

authorized stay or employment in the United States, or utters, uses, attempts to use, 

possesses, obtains, accepts, or receives any such visa, permit, border crossing card, 

alien registration receipt card, or other document prescribed by statute or regulation 

for entry into or as evidence of authorized stay or employment in the United States, 

knowing it to be forged, counterfeited, altered, or falsely made, or to have been 

procured by means of any false claim or statement, or to have been otherwise 

procured by fraud or unlawfully obtained; or 

Whoever, except under the direction of the Attorney General or the Commissioner 

of the Immigration and Naturalization Service, or other proper officer, knowingly 

possesses any blank permit, or engraves, sells, brings into the United States, or has 

in his control or possession any plate in the likeness of a plate designed for the 

printing of permits, or makes any print, photograph, or impression in the likeness of 

any immigrant or nonimmigrant visa, permit or other document required for entry 

into the United States, or has in his possession a distinctive paper which has been 

adopted by the Attorney General or the Commissioner of the Immigration and 

Naturalization Service for the printing of such visas, permits or documents; or 

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other 

document required for entry into the United States, or for admission to the United 

States personates another, or falsely appears in the name of a deceased individual, or 

evades or attempts to evade the immigration laws by appearing under an assumed or 

fictitious name without disclosing his true identity, or sells or otherwise disposes of, 

 

offense has only a general mens rea, is not addressed here as the underlying substantive 

offense in this case (fraud and misuse of visas, permits, and other documents under 

18 U.S.C. §1546(a)) involves a specific intent. Cf. Matter of Cervantes Nunez, 27 I&N 

Dec. 238, 243 (BIA 2016) (holding that attempted voluntary manslaughter under California 

law is categorically a crime of violence because the crime of attempt requires specific intent, 

even though the underlying crime of voluntary manslaughter encompasses reckless 

conduct and is not categorically a crime of violence). 
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256 

or offers to sell or otherwise dispose of, or utters, such visa, permit, or other 

document, to any person not authorized by law to receive such document; or 

Whoever knowingly makes under oath, or as permitted under penalty of perjury 

under section 1746 of title 28, United States Code, knowingly subscribes as true, any 

false statement with respect to a material fact in any application, affidavit, or other 

document required by the immigration laws or regulations prescribed thereunder, or 

knowingly presents any such application, affidavit, or other document which 

contains any such false statement or which fails to contain any reasonable basis in 

law or fact . . . . 

 For clarity of our analysis, we will treat the four phrases of the statute as 

numbered one through four. Phrase one outlines, at minimum, conduct such 

as possessing with no illegal use or intent to illegally use, an altered or 

counterfeit immigration document. We conclude that such conduct is not a 

crime involving moral turpitude. Matter of Serna, 20 I&N Dec. 579, 584 

(BIA 1992) (holding that this offense is not a crime involving moral 

turpitude). We therefore conclude the statute is overbroad, encompassing 

some nonturpitudinous conduct, such that it is not categorically a crime 

involving moral turpitude. Obeya, 884 F.3d at 447 n.4. Phrase four outlines 

acts of fraud, containing the requisite mens rea and conduct which define 

crimes involving moral turpitude. See, e.g., Lateef v. Dep’t of Homeland Sec., 

592 F.3d 926, 929 (8th Cir. 2010) (“Since intent to deceive for the purpose 

of wrongfully obtaining a benefit is essential to a conviction [for identity 

theft] the [Board’s] interpretation of that crime as one involving moral 

turpitude is reasonable.”); see also Jordan v. De George, 341 U.S. 223, 228 

(1951) (“[C]rimes involving fraud have universally been held to involve 

moral turpitude.”). Therefore, we next consider whether the statute is 

divisible, such that the modified categorical approach can be employed. 

2. The Statute is Divisible 

 Because 18 U.S.C. § 1546(a) contains four distinct phrases, we must 

consider whether the statute lists multiple, alternative elements defining 

different crimes, or whether the statute defines a single crime, with one set 

of elements listing alternative factual means by which that set of elements is 

satisfied. Mathis, 136 S. Ct. at 2249. If we determine the different phrases 

within the statute contain different elements, we must proceed to the 

modified categorical analysis. Id. at 2256. However, if the distinct phrases 

are simply alternative means of committing a single crime, the statute is not 

divisible, and the modified categorical approach cannot be used. Id. 

 We conclude each of the four alternative phrases of § 1546(a) contain 

unique elements, which the Government must prove to establish a conviction. 

Compare United States v. Archer, 671 F.3d 149, 154 (2d Cir. 2011) (setting 
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257 

out the elements for the fourth phrase, which criminalizes “Visa fraud,” as 

“(1) knowingly (2) presented (3) an application or ‘document required by the 

immigration laws’ (4) that contained a false statement (5) as to a material 

fact” (quoting 18 U.S.C. § 1546(a))), with Fed. Crim. Jury Instr. 7th Cir. 

1546(a)[1] (2020 ed.) (outlining the elements for phrase one, which 

criminalizes the “Use, or Possession of Immigration Document Procured by 

Fraud,” as (1) knowingly used, attempted to use, possessed, obtained, 

accepted, or received (2) a document prescribed by statute for entry into or 

as evidence of authorized stay or employment in the United States (3) which 

the defendant knew was forged, counterfeited, altered, or falsely made). See 

generally Model Crim. Jury Instr. 9th Cir. 8.132–8.134 (2021) (setting forth

distinct elements for phrases one, two, and four of § 1546(a)). 

 As such, § 1546(a) falls neatly within the sorts of divisible statutes 

described by the Supreme Court in both Mathis, 136 S. Ct. at 2249 (stating 

that a divisible statute has “a more complicated . . . structure, . . . list[ing] 

elements in the alternative, and thereby defin[ing] multiple crimes”), and 

Descamps, 570 U.S. at 262–63 (explaining that a divisible statute “comprises 

multiple, alternative versions of the crime,” or “refer[s] to several different 

crimes” (alteration in original) (citation omitted)). 

 We conclude that the four phrases of 18 U.S.C. § 1546(a) are alternative 

elements setting forth separate crimes, and therefore the statute is divisible. 

Although not binding in this case, which arises in the Second Circuit, we are 

further persuaded by the Seventh Circuit’s decision finding that the Board 

correctly analyzed § 1546(a) using the modified categorical analysis. See 

Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013). Because the 

statute is divisible, we look to the record of conviction to identify the 

statutory provision the respondent was convicted of violating. Mathis, 136 

S. Ct. at 2249. 

3. The Respondent was Convicted under Phrase Four 

 The respondent was convicted of the count contained within his criminal 

indictment, which provides that he 

knowingly ma[de] under oath . . . [and] knowingly subscribe[d] as true, false 

statements with respect to material facts in applications, affidavits, and other 

documents required by the immigration laws and regulations prescribed thereunder, 

and knowingly presented such applications, affidavits and other documents required 

by the immigration laws and regulations prescribed thereunder, and knowingly 

presented such applications, affidavits, and other documents which contained such 

false statements and which failed to contain any reasonable basis in law and fact, to 

wit, [the respondent] and others prepared and submitted fraudulent applications in 
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258 

support of H-1B visa applications, in violation of Title 18, United States Code, 

Section 1546(a). 

 The criminal indictment establishes that the respondent was convicted 

under phrase four of 18 U.S.C. § 1546(a). Since the respondent knowingly 

committed fraud undermining the immigration system, we conclude that his 

conviction involves moral turpitude. See Matter of Kochlani, 24 I&N Dec. 

128, 130 (BIA 2007) (stating that “crimes that have a specific intent to 

defraud as an element have always been found to involve moral turpitude”). 

See generally Flores-Molina v. Sessions, 850 F.3d 1150, 1160–64 (10th Cir. 

2017) (giving a general overview of the Board’s precedential decisions on 

crimes involving moral turpitude involving fraud and deception). 

 The respondent pled guilty to knowingly preparing and submitting 

fraudulent visa applications. He prepared and submitted applications so that 

others would receive nonimmigrant visas for which they were ineligible. 

Such conduct is inherently dishonest and fraudulent. The respondent was 

convicted of phrase four, involving the use of fraudulent documents, and not 

mere possession of an altered document. 

4. Matter of Serna Clarified 

 The respondent argues he is not inadmissible because the offense 

underlying his conviction (visa fraud under 18 U.S.C. § 1546(a)) is not 

categorically a crime involving moral turpitude, citing to our precedent 

decision in Matter of Serna, 20 I&N Dec. 579. In that case, we held that a 

conviction under 18 U.S.C. § 1546 is not categorically a crime involving 

moral turpitude, since it may include possession, without the use or intent to 

use, an altered document. However, in Matter of Serna, we analyzed the 

statute, as it existed in 1982, without considering the modified categorical 

analysis. That version of the statute, which is different from the version 

under which the respondent was convicted, read in relevant part: 

Whoever knowingly forges, counterfeits, alters or falsely makes any immigrant or 

nonimmigrant visa, permit, or other document required for entry into the United 

States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any 

such visa, permit, or document, knowing it to be forged, counterfeited, altered, or 

falsely made, or to have been procured by means of any false claim or statement, or 

to have been otherwise procured by fraud or unlawfully obtained . . . . 

. . . . 

Shall be fined not more than $2,000 or imprisoned not more than five years, or 

both. 

18 U.S.C. § 1546 (1982). 
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259 

 We find here, as we did in Matter of Serna, that possessing with no illegal 

use or intent to illegally use an altered or counterfeit immigration document 

is not morally turpitudinous. However, we find the version of the statute 

under which the respondent was convicted to be divisible, such that the 

modified categorical analysis must be employed to determine under which 

statutory phrase he was convicted.5

 We hold that a conviction for visa fraud 

under phrase four of 18 U.S.C. § 1546(a) is a conviction for a crime involving 

moral turpitude. 6 Consequently, we decline to disturb the Immigration 

Judge’s conclusion that the respondent is inadmissible under section 

212(a)(2)(A)(i)(I) of the Act. 

II. CANCELLATION OF REMOVAL 

 Having determined the respondent is removable, we now turn to the 

respondent’s application for relief from removal. It is the respondent’s 

burden to establish eligibility for relief from removal in all respects, 

including that he merits such relief in the exercise of discretion. Sections 

240(c)(4)(A)(i), (ii) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i), (ii) (2018). In 

our de novo review of discretion, our consideration of the respondent’s 

criminal activity is not limited by the categorical or modified analyses of the 

criminal statute. We may consider all record evidence, including but not 

limited to, records of convictions, police reports, and the respondent’s 

testimony. See Matter of Thomas, 21 I&N Dec. 20, 23–24 (BIA 1995) 

(holding that for discretionary relief the evidence of unfavorable conduct 

may be considered). 

 The respondent argues his application for cancellation of removal should 

be granted.7

 Presuming the respondent credible, without deciding the issue, 

we would nonetheless deny his application for cancellation of removal as a 

matter of discretion. In exercising discretion under our de novo authority, 

we “must balance the adverse factors evidencing the alien’s undesirability as 

 

5

 We need not reach, and leave open the question whether the 1982 version of the statute 

was divisible. 

6

 We need not address whether phrases one, two, and three may themselves be further 

divisible. 

7

 The Immigration Judge concluded the respondent was ineligible for cancellation of 

removal because he had obtained his lawful permanent resident status through fraud, and 

therefore pretermitted the respondent’s application under Matter of Koloamatangi, 23 I&N 

Dec. 548, 552 (BIA 2003). Despite the Immigration Judge’s pretermission determination, 

he reviewed the claim in its entirety, alternatively denying the application as a matter of 

discretion. Since our decision rests on the alternative discretionary denial under section 

240A(a) of the Act, we need not reach the issue of the respondent’s possible fraudulent 

acquisition of status. 
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260 

a permanent resident with the social and humane considerations presented in 

his [or her] behalf to determine whether the granting of . . . relief appears in 

the best interest of this country.” Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 

1998) (alteration in original) (quoting Matter of Marin, 16 I&N Dec. 581, 

584–85 (BIA 1978)) (holding that the general standards developed for the 

exercise of discretion under former section 212(c) of the Act, 8 U.S.C. 

§ 1182(c) (1994), are applicable to the exercise of discretion under section 

240A(a) of the Act). 

 Favorable considerations include family ties within the United States, 

residence of long duration in this country (particularly when the inception of 

residence occurred at a young age), evidence of hardship to the respondent 

and his family if removal occurs, service in this country’s armed forces, a 

history of employment, the existence of property or business ties, evidence 

of value and service to the community, proof of genuine rehabilitation if a 

criminal record exists, and other evidence attesting to a respondent’s good 

character. Id. Adverse factors include the nature and underlying 

circumstances of the grounds of removal that are at issue, the presence of 

additional significant violations of this country’s immigration laws, the 

existence of a criminal record and, if so, its nature, recency, and seriousness, 

and the presence of other evidence indicative of a respondent’s bad character 

or undesirability as a permanent resident of this country. Id.

 The Immigration Judge appropriately considered the respondent’s 

significant positive factors, placing emphasis on his difficult family situation. 

We have considered the factors raised by the respondent on appeal, including: 

a lengthy residence in the United States, significant family ties in the United 

States, the hardship his family would suffer upon his removal, employment, 

contributions to the community, and the respondent’s remorse for his 

criminal conduct. The respondent argues on appeal that the Immigration 

Judge did not consider his rehabilitation. We disagree. Though the 

Immigration Judge did not specifically employ the term “rehabilitation,” the 

Immigration Judge’s decision reflects consideration of the evidence 

presented, including the respondent’s efforts to rehabilitate. Regardless, 

under our de novo authority to review discretionary findings, we have 

considered the respondent’s rehabilitation argument. 8 C.F.R. 

§ 1003.1(d)(3)(ii). 

 The Immigration Judge further considered the respondent’s negative 

factors, namely, the events that led to his conviction of conspiracy to commit 

visa fraud. As noted by the Immigration Judge, the respondent conspired to 

commit fraud by submitting immigration documents that he knew were false 

and misleading. He also coached an individual on how to pass the consular 

interview. The respondent committed these acts over a period of several 
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261 

years. The respondent’s repeated efforts to knowingly violate immigration 

laws reflect a lack of contrition and accountability for misconduct that 

undermines the integrity of our nation’s laws. The respondent’s many 

equities and later attempts at rehabilitation do not overcome his ongoing 

fraudulent scheme. See generally INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 

(1996) (“It is assuredly rational, and therefore lawful, for [the Attorney 

General] to distinguish aliens such as the respondent who engage in a pattern 

of immigration fraud from aliens who commit a single, isolated act of 

misrepresentation.”). 

 Upon consideration of the equities before us on de novo review, we agree 

with the Immigration Judge’s conclusion that the weight to be attributed to 

the respondent’s positive equities is undercut by his criminal record in this 

country. As such, we affirm the Immigration Judge’s discretionary denial of 

the respondent’s application for cancellation of removal under section 

240A(a) of the Act. The appeal is dismissed. 

ORDER: The respondent’s appeal is dismissed. 

NOTICE: If a respondent is subject to a final order of removal and 

willfully fails or refuses to depart from the United States pursuant to the order, 

to make timely application in good faith for travel or other documents 

necessary to depart the United States, or to present himself or herself at the 

time and place required for removal by the DHS, or conspires to or takes any 

action designed to prevent or hamper the respondent’s departure pursuant to 

the order of removal, the respondent shall be subject to a civil monetary 

penalty of up to $813 for each day the respondent is in violation. See section 

274D of the Act, 8 U.S.C. § 1324d; 8 C.F.R. § 280.53(b)(14).