LEMHAMMAD

OCR transcription for search; preserved printed pages are authoritative

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MATTER OF LEMHAMMAD
In Deportation Proceedings
A-27935756
Decided by Board May 22, 1991

(1) In a deportation proceeding where the alien is charged with deportability pursuant to
section 241(a)(9)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(9)(B)
(1988), as an alien whose status as a conditional permanent resident has been
terminated under section 216(b) of the Act, 8 U.S.C. § 1186a(b) (1988), the burden is
on the Immigration and Naturalization Service to show by a "preponderance of the
evidence" that one of the conditions for termination of status described in section
216(b)(1)(A) of the Act has been met.

(2) Original jurisdiction to rule on the merits of an Application for Waiver of
Requirement to File Joint Petition for Removal of Conditions (Form I-752) rests only
with the appropriate regional service center director, and not the immigration judge.

CHARGE:

Order: Act of 1952-Sec. 241(a)(9)(B) [8 U.S.C. § 1251(a)(9)(B)]-Conditional resident
status terminated

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Marilyn L. Wilde, Esquire

Elizabeth B. Richards

26 Garden Center, Suite 3

General Attorney

Broomfield. Colorado 80020

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated June 29, 1990, the immigration judge found the
respondent deportable under section 241(a)(9)(B) of the Immigration
and Nationality Act, 8 U.S.C. § 1251(a)(9)(B) (1988), denied his
Application for Waiver of Requirement to File Joint Petition for
Removal of Conditions (Form I-752) ("hardship waiver") on jurisdic-
tional grounds, and denied his application for voluntary departure in
lieu of deportation. The respondent has filed a timely appeal from that
decision. The appeal will be dismissed.

The respondent is a 26-year-old native and citizen of Jordan. He
entered the United States on October 29, 1983, as a nonimmigrant.
Subsequently, the respondent married a United States citizen. On June
3, 1988, based on this marriage, the respondent obtained permanent

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resident status on a conditional basis pursuant to section 216 of the
Act, 8 U.S.C. § 1186a (1988). However, on October 25, 1989, the
marriage was terminated by a divorce decree issued by the District
Court of Arapahoe County, Colorado.1

On May 10, 1990, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form I-221)
against the respondent, charging him with deportability under section
241(a)(9)(R) of the Act, as an alien whose conditional permanent
resident status under section 216 of the Act had been terminated.
More specifically, the Order to Show Cause charges that the respon-
dent's status had been properly terminated pursuant to section 216(b)
or (c) of the Act. Section 216(b)(1)(A)(i) and (ii) of the Act provide for
the termination of an alien's conditional permanent resident status
where the Attorney General determines, before the second anniversary
of the alien's obtaining his status, that the qualifying marriage was
either "entered into for the purpose of procuring [the] alien's entry as
an immigrant" or was "judicially annulled or terminated, other than
through the death of a spouse." Under section 216(c) of the Act,
termination of the alien's conditional permanent resident status is
based on his failure to properly file a petition to remove such
conditional basis in accordance with section 216(c)(1)(A) of the Act or
his failure to appear at the personal interview described in section
216(c)(1)(B) of the Act.

At the deportation hearing, the respondent admitted that he had
received notice from the Service that his conditional permanent
resident status had been terminated on April 17, 1990. In addition, the
respondent admitted that his marriage had been judicially terminated
by divorce on October 25, 1989. However, he denied that he had
entered into his marriage for the purpose of evading the immigration
laws. The Service introduced into evidence a certified copy of the
divorce decree and argued that deportability under section
241(a)(9)(B) of the Act had been established, since the respondent's
conditional permanent resident status had been properly terminated
pursuant to section 216(b)(1)(A)(ii), as an alien whose qualifying
marriage had been judicially terminated other than through the death
of a spouse. Ultimately, the Service opted not to go forward on the
alternate allegation under section 216(b)(1)(A)(i) that the respondent
had entered into the marriage for the purpose of procuring immigrant
status.

'On appeal. the respondent contends that the marriage was terminated by divorce
after he was a conditional permanent resident for more than 2 years. However, this
assertion is inaccurate. The respondent acquired his conditional permanent resident
status on June 3, 1988, and he was divorced 16 months later on October 25, 1989.

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The respondent also sought relief from deportation by applying for
a hardship waiver of the requirement to file a joint petition for
removal of conditions and for voluntary departure. Both the respon-
dent and his United States citizen brother testified in support of the
respondent's applications for relief. In rebuttal, the Service presented
two affidavits, one a transcription of a sworn statement taken from the
respondent's ex-wife, and the other an affidavit from a foreign student.
In the latter, the foreign student attested that he had paid the
respondent money to impersonate him at a local college by attending
his classes and taking his exams. In addition, the Service presented two
witnesses, the respondent's ex-wife and the Service investigator who
had prepared both affidavits.

The immigration judge concluded that the Service had, in fact, met
its burden of proof with respect to section 216(b)(1)(A)(ii) of the Act
and found the respondent deportable under section 241(a)(9)(B). The
immigration judge also found that the "bulk of the testimony"
presented at the deportation hearing did not demonstrate that the
respondent had entered into the marriage for the purpose of procuring
his immigrant status. With respect to the hardship waiver application,
the immigration judge determined that he had no jurisdiction to rule
on its merits. The immigration judge reasoned that the regulations
require that the hardship waiver be filed originally with the regional
service center director having jurisdiction over the alien's place of
residence. See 8 C.F.R. § 216.5(c) (1991). Since the respondent had
never filed a waiver application with the regional service center
director, the immigration judge concluded he lacked jurisdiction over
the matter.2 The immigration judge also denied the respondent's
application for voluntary departure because, for a fee, the respondent
had pused as other foreign students enrolled at a local college and
taken final examinations for them. In reaching this conclusion, the
immigration judge relied upon the student's affidavit and the testimo-
ny provided by the Service investigator.

On appeal, the respondent, through counsel, raises several argu-

2 In his decision, the immigration judge found that there was no evidence in the record
that the respondent had filed a Joint Petition to Remove the Conditional Basis of Alien's
Permanent Resident Status (Form I-751) ("joint petition"). The immigration judge also
concluded that the regulations require that the petition be filed with the Service within
the 90-day period immediately preceding the second anniversary of the date on which
the alien obtained his conditional permanent resident status. We agree with the
immigration judge's findings. However, we note that the regulations also provide that a
Form I-751 may be filed after the 90-day period "only if the alien establishes to the
satisfaction of the director, in writing, that there was good cause for the failure to file" it
within the prescribed time limit. 8 C.F.K. § 216.4(a)(6) (1991). In addition, after
jurisdiction vests with an immigration judge, the joint petition may "terminate the
matter upon joint motion by the alien and the Service." 8 C.F.R. § 216.4(a)(6) (1991).

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ments. First, the respondent opines that the mere dissolution of a
marriage should not be sufficient grounds for deportation under
section 216 of the Act. Instead, he believes that where the parties to the
qualifying marriage were granted a "no-fault" divorce, the Act should
require proof by clear, unequivocal, and convincing evidence that the
noncitizen spouse was "at fault" in the termination of the marriage.
Secondly, the respondent contends that he qualifies for the hardship
waiver. In support of this contention, the respondent discusses the
"factors [which he feels] taken together would certainly cry out for a
waiver of deportation." However, the respondent does not contest the
immigration judge's jurisdictional findings.

With respect to his voluntary departure application, the respondent
argues on appeal that the immigration judge abused his discretion in
denying it solely on the basis that the respondent had taken courses for
other students. The respondent contends that his "taking of several
courses" is not "so repugnant" as to constitute a lack of good moral
character. In addition, the respondent argues that the Service's use of
students' affidavits, rather than oral testimony, denied him his right to
due process. Finally, without further explanation, the respondent
states the following: "In Woodby v. INS, 385 U.S. 276, (1966), the
Supreme Court held that the grounds for deportation must be found to
be truc by clear, unequivocal, and convincing evidence."

The Service brief in opposition to the respondent's appeal basically
agrees with the immigration judge's decision. Regarding the denial of
voluntary departure, the Service alleges that fraud was inherent in the
respondent's money-making scheme on campus. In addition, it is
argued that the respondent's criminal conviction of domestic assault,
which was not discussed by the immigration judge in his decision,
provides further justification for the denial of voluntary departure.
With respect to the respondent's hardship waiver application, the
Service agrees with the immigration judge's jurisdictional findings. It
argues, however, in the alternative, that even if jurisdiction is found to
exist, the evidence submitted by the respondent does not rise to the
requisite level of extreme hardship.

Pursuant to the Order to Show Cause, the respondent was charged
with deportability under section 241(a)(9)(B) of the Act, as an alien
whose status as a conditional permanent resident under section 216 of
the Act has been terminated.3 Section 216(b)(1)(A) of the Act provides,
in pertinent part, that such termination may occur

3Specifically, the Order to Show Cause charged that the respondent's conditional
permanent resident status was terminated pursuant to section 2.16(h) or (c) of the Act.
Since we find that the respondent's status was properly terminated by the Service under
section 216(b) of the Act, we will not address whether termination of his status was also
appropriate under section 216(c) of the Act.

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# Interim Decision #3151

if the Attorney General determines, before the second anniversary of the alien's
obtaining the status of lawful admission for permanent residence [on a conditional
basis], that-

(A) the qualifying marriage-

(i) was entered into for the purpose of procuring an alien's entry as an immigrant,
or

(ii) has been judicially annulled or terminated other than through the death of a
spouse.

(Emphasis added).

The Attorney General is required to notify the parties involved that
the alien's conditional permanent resident status is being terminated.4
See 8 C.F.R. § 216.3(a) (1991). The alien must also have an
opportunity to request a review of such determination in a deportation
proceeding before an immigration judge. Section 216(b)(2) of the Act.
In such a proceeding, the burden of proof is on the Attorney General to
establish, by a preponderance of the evidence, that a condition in the
above-quoted paragraph (1) has been met. Id .; see also & C.F.R.
§ 216.3(a) (1991).

On appeal, the respondent questions whether his deportability was
established by clear, unequivocal, and convincing evidence in con-
formity with Woodby v. INS, 385 U.S. 276 (1966). Generally, that
standard would be applied in deportation proceedings. It is inapplica-
ble here, however, where the plain language of the statute provides for
a different burden of proof.

Section 216(b)(2) of the Act states, clearly and unambiguously, that
at the deportation hearing of an alien whose conditional permanent
resident status has been terminated pursuant to section 216(b)(1) of
the Act, the Service bears the burden of demonstrating "by a
preponderance of the evidence, that a condition described in [section
216(b)(1)(A)] is met."5 See also 8 C.F.R. § 216.3 (1991). It is well
established that if the statutory language is clear and unambiguous,
"that language must ordinarily be regarded as conclusive," North
Dakota v. United States, 460 U.S. 300, 312 (1983), for there is a
"strong presumption that Congress expresses its intent through the
language it chooses." INS v. Cardoza-Fonseca, 480 U.S. 412, 432 n.12
(1987). For that reason, when Congress defines a term in a statute, that
term is plain, and application of the plain meaning rule requires that

4The respondent conceded that the Service provided him with proper notice
concerning the termination of his conditional permanent resident status.

5 Preponderance of evidence is defined as "evidence which as a whole shows that the
fact sought to be proved is more probable than not." Black's Law Dictionary 1064 (5th
ed. 1979).

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the term be given its statutorily defined meaning.6 When the language
is plain, no further construction of a statute is required, for there is
nothing to construe. See id. at 445-46 n.29. We look to the legislative
history to determine only whether there is "clearly expressed legisla-
tive history" contrary to statutory language, which would require us to
question the strong presumption that Congress expresses its intent
through the language it chooses. See United States v. James, 478 U.S.
597. 606 (1986): Consumer Prod. Safety Com'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). In this case, there is no legislative history for
the Immigration Marriage Fraud Amendments of 1986 which indi-
cates a congressional intent contrary to our interpretation of the plain
meaning of the statutory language. See H.R. Rep. No. 906, 99th Cong.,
2d Sess. 1, reprinted in 1986 U.S.C.C.A.N. 5978.

We find, therefore, that the Service met its burden of proving that
the respondent's conditional permanent resident status was terminated
under section 216(b)(1)(A)(ii) of the Act. By introducing a certified
copy of the divorce decree, the Service established by a preponderance
of the evidence that, before the respondent's second anniversary of
obtaining his conditional permanent resident status, his qualifying
marriage had been "judicially terminated, other than through the
death of [his] spouse." Accordingly, we conclude that the respondent's
deportability under section 241(a)(9)(B) has been properly estab-
lished.7

6A fundamental canon of statutory construction is that, unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary common meaning.
Perrin v. United States, 444 U.S. 37, 42 (1979).

7On appeal, the respondent notes that his wife was granted a "no-fault" divorce by the
State of Colorado, i.c., the marriage was found to be "irretrievably broken" without fault
of either partner. He argues that a "no-fault" divorce should not be sufficient grounds
for deportation under section 216 of the Act since the marriage was terminated without
fault of either partner. He further opines that the Act should require proof that "the
termination of the marriage was the fault of the non-citizen spouse by clear,
unequivocal, and convincing [evidence]." Since counsel for the respondent does not
specify whether proof of fault should be demonstrated by the Service or by the alien, we
will assume that counsel intended that the requirement should be imposed upon the
Service. This argument is one that should be made to Congress. We are an
administrative tribunal empowered to interpret the law as set forth in the Immigration
and Nationality Act. The relevant provisions of the Act do not require a finding of fault,
and, accordingly, we will not impose one.

The respondent also argues that "a close reading [of section] 216(b) and (c) leaves the
definite impression" that had he, rather than his wife, applied for divorce, the outcome
of this case would have been different. We disagree. The requirement that the "marriage
be terminated by the alien spouse for good cause" bears only on the issue of the
respondent's eligibility for a hardship waiver under section 216(c)(4) of the Act, and not
on the issue of deportability under section 216(b)(1) of the Act. We note that during the
pendency of the respondent's appeal, Congress enacted section 701 of the Immigration

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The remaining issues concern the respondent's applications for
relief from deportation. Our initial consideration is with the hardship
waiver application because, if it is granted, the respondent would no
longer be deportable under section 241(a)(9)(B) of the Act and would
be eligible for removal of the conditions on his permanent resident
status. See sections 241(g) and 216(c)(4) of the Act. Upon review of the
record, we find that the respondent failed to properly file the hardship
waiver application, and, consequently, the immigration judge lacked
jurisdiction to rule on its merits.

The regulations provide that "Form I-752 [waiver applications].
shall be filed with the regional service center director having jurisdic-
tion over the alien's place of residence." 8 C.F.R. § 216.5(c) (1991).
They further state that "[n]o appeal shall lie from the decision of the
director; however, the alien may seek review of such decision in
deportation proceedings." 8 C.F.R. § 216.5(f) (1991). Read together,
these sections clearly require that original jurisdiction to rule on the
merits of the hardship waiver application rests only with the appropri-
ate regional service center director, and not the immigration judge.

Our interpretation of 8 C.F.R. §§ 216.5(c) and (f) (1991) takes into
account the use of varying language in the regulations governing other
waivers available under the Act. For example, an application for a
waiver under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988), may
be submitted to an immigration judge during the course of exclusion
or deportation proceedings "regardless of whether the applicant has
made such application previously to the district director."8 8 C.F.R.
§ 212.3(d) (1991). The regulations further provide that section 212(c)
applications "may be renewed during proceedings before an immigra-
tion judge." Id. In addition, an applicant for adjustment of status who
is excludable and seeks a waiver under section 212(h) or (i) of the Act
may file an application with either "the director or immigration judge
considering the application for adjustment of status."9 8 C.F.R.
§ 212.7(a)(ii) (1991).

Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, which amended section 216(c)(4) of
the Act by eliminating the requirement that the termination of the marriage be "by the
alien spouse for good cause." However, since the respondent here failed to properly file
his hardship waiver application, the amendment has no impact on the outcome of his
case.

8 An alien eligible for relief under section 212(c) can obtain a waiver of the grounds of
exclusion in sections 212(a)(1) through (25), and (30) and (31). Relief under section
212(c) is also available to an alien in deportation proceedings. See Matter of Silva, 16
I&N Dec. 26 (BIA 1976).

9 TInder section 212(h) of the Act. certain criminal conduct which would render an
alien excludable can be waived. According to section 212(i), aliens excludable under
section 212(a)(19) of the Act for committing fraud in obtaining a visa or entry into the
United States may be eligible for a waiver.

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Still another example may be found in the regulations which govern
the filing of an application for a waiver under section 212(k) of the
Act. Under 8 C.F.R. § 212.10 (1991), an applicant "may apply to the
district director at the port of entry for a waiver under section 212(k)
of the Act. If the application for waiver is denied by the district
director, the application may be renewed in exclusion proceedings
before an immigration judge .... ">10 In Matter of Aurelio, 19 I&N Dec.
458 (BIA 1987), we found that this language was directory and
concluded that it did not preclude the initial adjudication of an
application by the immigration jucige. In support of our conclusion, we
cited instances where similar language was used in the regulations
governing other waiver applications and immigration judges were
found to have original jurisdiction over the applications. See 8 C.F.R.
§§ 212.2, 235.7 (1987); Matter of Ng, 17 I&N Dec. 63 (BIA 1979);
Matter of Ducret, 15 I&N Dec. 620 (BIA 1976) (permission to reapply
for admission after deportation); 8 C.F.R. §§ 235.7, 242.7a (1987);
Matter of Delagadillo, 15 I&N Dec. 395 (BIA 1975); Matter of Salviejo,
13 I&N Dcc. 557 (BIA 1970) (waiver of documents under section
211(b) of the Act, 8 U.S.C. § 1181(b) (1982). In addition, we noted
that 8 C.F.R. § 242.8(a) (1987) gives the immigration judge authority
to address section 212(k) applications initially in deportation proceed-
ings.

By contrast, the language of the regulations governing the hardship
waiver is mandatory, requiring that Form I-752 be filed with the
regional service center director and that the immigration judge shall
only review the director's decision. See 8 C.F.R. §§ 216.5(c), (f)
(1991). Since the respondent failed to submit his waiver application to
the regional service center director as prescribed by the regulations. we
conclude that the immigration judge lacked jurisdiction to rule on his
application.

We note that counsel stated at the deportation hearing that if the
hardship waiver had to be referred to the regional service center
director, the respondent "would be inclined to withdraw it and just ask
for voluntary departure." On appeal, the respondent did not seek to
have his hardship waiver adjudicated by the appropriate service center
director. In fact, he ignored the jurisdictional issue altogether and
merely argued the merits of the application. Having concluded that the
immigration judge lacked jurisdiction to rule on the application, we
find the respondent's arguments on the merits inapposite.

The remaining issue on appeal concerns the denial of the respon-
dent's application for voluntary departure by the immigration judge.

10 Section 212(k) of the Act waives labor certification, immigrant visa, and quota
violations under sections 212(a)(14), (20), and (21) of the Act.

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# Interim Decision #3151

He concluded that since the respondent had assumed the identity of
other foreign students and, for money, had taken exams for them at a
local college, he did not merit voluntary departure as a matter of
discretion.

On appeal, the respondent raises two principal arguments. First, he
asserts that the immigration judge erred by admitting into evidence
affidavits of the students who had allegedly paid the respondent. He
claims that admission of these affidavits into evidence denied bim due
process by denying him his rights to investigate into their accuracy and
to confront or cross-examine the affiants. Secondly, the respondent
contends that his scheme on campus alone does not constitute a lack of
good moral character to warrant a denial of voluntary departure.

With respect to the respondent's first contention, we find that he
was not denied his right to due process. The respondent erroneously
asserted that there were several affidavits from students admitted into
evidence. After carefully reviewing the transcript of the proceedings,
we find that the Service proffered only one student's affidavit into
evidence, which was the only such affidavit admitted into evidence
and considered by the immigration judge in his decision to deny
voluntary departure. Therefore, we will review the immigration judge's
consideration of that one student's affidavit. The affidavit. if credited,
is probative. It indicates that the respondent assumed the identity of
other foreign students and attended classes for them in exchange for
money.

At the deportation hearing, the Service presented, as a witness, the
investigator who prepared the student's affidavit. The witness, Agent
Francis Andrew Lee, testified, in part, about the procedure followed in
producing the sworn statement, the manner in which he obtained his
information, and the circumstances of the respondent's scheme." In
regard to that scheme, the agent testified that, during the semester of
December 1989 through May 1990, the respondent attended classes,
did homework, and took exams for three students who were enrolled at
the Metropolitan State College. He further stated that the affiant was
one of the students who had paid the respondent money for this
purpose. Finally, he testified that, besides the information provided by
the affiant, he had conducted his own investigation of the respondent's
activities on campus, and on one occasion, with the assistance of the

1

11 The agent also testified that he had prepared the affidavit of the respondent's ex-
wife, Ms. Tanya Walters. However, when the Service sought to have the ex-wife's
affidavit admitted into evidence, counsel for the respondent properly objected on the
basis of inability to cross-examine her. The immigration judge continued the hearing to
allow the Service an opportunity to bring Ms. Walters to testify in court. Ms. Walters did
testify at the continued hearing. There is no evidence in the record that the immigration
judge placed any reliance on the ex-wife's affidavit.

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campus police, he arrested the respondent upon his completion of a
final exam.

At the deportation hearing, counsel for the respondent objected to
the admission of the student's affidavit solely because she did not
think it was valid. It was only on appeal that counsel first raised an
objection to the student's affidavit on the basis of inability to cross-
examine the affiant. Even overlooking counsel's failure to raise a
specific objection at the hearing, we cannot ignore the fact that counsel
waived the right to cross-examine the agent, who had testified that he
had conducted his own independent investigation of the respondent's
activities on campus. Having waived the opportunity to cross-examine
the agent, the respondent cannot now claim to have been prejudiced.12

The respon dent's failure to cross-examine the agent with respect to
his own investigation left the information provided by the agent
unchallenged. Consequently, there was sufficient evidence regarding
the respondent's scheme on campus, without the student's affidavit, to
support the immigration judge's findings. Therefore, we find that the
respondent was not denied due process.

The other argument raised by the respondent was that the immigra-
tion judge erred in concluding that his scheme on campus constituted a
lack of good moral character. In order to obtain voluntary departure,
an alien bears the burden of establishing both that he is statutorily
eligible for relief and that he merits a favorable exercise of discretion.
See 8 C.F.R. § 242.17(e) (1991); Matter of Seda, 17 I&N Dec. 550
(BIA 1980); Matter of Turcotte, 12 I&N Dec. 206 (BIA 1967); Matter
of Mariani, 11 I&N Dec. 210 (BIA 1965). One of the statutory
requirements for voluntary departure is that the alien must have been
a person of good moral character for at least 5 years prior to his
application. Section 244(e) of the Act, 8 U.S.C. § 1254(e) (1988);
Villanueva-Franco v. INS, 802 F.2d 327 (9th Cir. 1986); Delgado-
Chavez v. INS, 765 F.2d 868 (9th Cir. 1985); Cuevas-Ortega v. INS,
588 F.2d 1274 (9th Cir. 1979); Matter of Tsang, 14 I&N Dec. 294 (BIA
1973). In the instant case, the immigration judge found that the
respondent was statutorily eligible for voluntary departure, but he
denied it as a matter of discretion. Consequently, we need not consider
whether the respondent's behavior on campus constitutes a lack of
good moral character as prescribed under section 101(f) of the Act, 8

12 In Cunanan v. INS, 856 F.2d 1373 (9th Cir. 1988), a case relied on by the
respondent on appeal, the contested affidavit was not presented to the alien until the
date of the hearing, and the Service, despite the immigration judge's specific request, did
not make a reasonable effort to present the affiant as a witness. The instant case ie
distinguishable because, in Cunanan, the agent who prepared the affidavit did not testify
at the hearing and there was no supplemental testimony presented in support of the
contents of the affidavit.

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## Interim Decision #3151

U.S.C. § 1101(f) (1988). Instead, we must determine whether the
immigration judge erred in denying voluntary departure in the exercise
of his discretion. We find that he did not.

In exercising discretion on a voluntary departure application, an
immigration judge may consider such adverse factors as the alien's
prior immigration history, the nature of his entry or entries, and any
violations of the immigration and other laws of the United States.
Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972). Discretion may
nevertheless be favorably exercised in the face of adverse factors where
there are compensating elements such as long residence here, close
family ties in the United States, or humanitarian needs. Id.

The immigration judge noted as favorable factors that the respon-
dent has a United States citizen brother and that he desires to
complete his education in the United States. In balancing these factors
against the respondent's scheme of taking exams for foreign students at
a local college, the immigration judge concluded that the respondent
did not merit discretionary relief.

We note that there is an additional adverse factor in the record that
supports the denial of voluntary departure as a matter of discretion.
Although not noted by the immigration judge in his decision, the
record reflects that the respondent was convicted of assault in Denver,
Colorado, sentenced to 2 days in jail, and placed on probation.
Considering the factors discussed by the immigration judge, as well as
this additional adverse factor, we find that a favorable exercise of
discretion is not warranted in this case. Accordingly, the appeal will be
dismissed.

ORDER:
The appeal is dismissed.

1