LEMA MIZHIRUMBAY

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Cite as 29 I&N Dec. 351 (BIA 2025) 	Interim Decision #4148
Matter of Jose Antonio LEMA MIZHIRUMBAY, Respondent
Decided by Board October 28, 20251
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The respondent’s repeated violations of workplace safety regulations, resulting in the
death of two employees, are significant adverse factors and weigh against a favorable
exercise of discretion for purposes of cancellation of removal.
FOR THE RESPONDENT: Yok-Seung Chiu, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Pablo Forray, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; VOLKERT,
Appellate Immigration Judge; MCCLOSKEY, Temporary Appellate Immigration Judge.
VOLKERT, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) appeals the Immigration
Judge’s May 13, 2025, decision granting the respondent’s application for
cancellation 	of 	removal 	for 	certain 	nonpermanent 	residents 	under
section 	240A(b)(1) 	of 	the 	Immigration 	and 	Nationality 	Act 	(“INA”),
8 U.S.C. § 1229b(b)(1) (2024). 	The respondent, a native and citizen of
Ecuador, opposes the appeal. 	We will sustain DHS’ appeal, vacate the
Immigration 	Judge’s 	grant 	of 	cancellation 	of 	removal, 	and 	order 	the
respondent removed to Ecuador.
DHS 	challenges 	the 	Immigration 	Judge’s 	determination 	that 	the
respondent 	established 	that 	his 	United 	States 	citizen 	children 	would
experience exceptional and extremely unusual hardship upon his removal.
DHS also argues the Immigration Judge erred in determining that the
respondent merited a favorable exercise of discretion and by not addressing
the issue of good moral character.
1 	Pursuant to Order No. 6524-2025, dated December 8, 2025, the Attorney General
designated the Board’s decision in Matter of Lema Mizhirumbay (BIA Oct. 28, 2025), as
precedent in all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3)
(2025). Editorial changes have been made consistent with the designation of the case as a
precedent.

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Upon our de novo review, we agree with DHS that the respondent does
not warrant a grant of cancellation of removal as a matter of discretion. See
8 C.F.R. § 1003.1(d)(3)(ii) (2025). Cancellation of removal is a discretionary
form of relief. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1); see also Matter
of Gonzalez Jimenez, 29 I&N Dec. 129, 130 (BIA 2025). 	“In exercising
discretion, we ‘must balance the adverse factors evidencing the alien’s
undesirability 	as 	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
Gonzalez Jimenez, 29 I&N Dec. at 130 (quoting Matter of C-V-T-, 22 I&N
Dec. 7, 11 (BIA 1998)). 	Relevant factors “include family ties within the
United States, length of residence in this country, evidence of hardship to the
respondent’s 	family 	if 	deportation 	occurs, 	military 	service, 	history 	of
employment, property or business ties, service to the community, and, where
a criminal record exists, proof of rehabilitation.” Id. “Where adverse factors
are present, the respondent should present offsetting favorable evidence,
which may require unusual or even outstanding equities, to outweigh the
negative factors.” Id.
Like the Immigration Judge, we acknowledge the respondent’s equities.
He has been in the United States for many years and has significant family
ties to the country as the father of five United States citizen children. He is
also active in his church community and serves as his church’s music
director. 	We also recognize that the respondent’s removal will result in
hardship to the respondent and his family.
However, these equities are insufficient to outweigh significant adverse
factors, 	including 	the 	respondent’s 	recent 	criminal 	conviction 	after 	a
prolonged refusal to address or accept responsibility for worksite safety that
resulted in the death of two individuals. The Immigration Judge found that
the respondent’s violation of regulations from the Occupational Safety and
Health 	Administration 	(“OSHA”) 	“contributed 	to 	the 	deaths 	of 	two
individuals who were working on roofs for his company.” The Immigration
Judge 	found 	that 	OSHA 	investigated 	the 	respondent 	“on 	numerous
occasions” and noticed violations regarding safety equipment the respondent
was required to provide his workers on roofs. 	In 2019, one of the
respondent’s workers fell to his death from a roof when a safety harness was
not properly tethered to the structure. 	Following the incident, OSHA
investigated the respondent, found him to be in violation, and fined him
approximately $10,000. 	The Immigration Judge found that the respondent
“willfully failed to pay” this fine until after his later arrest. The respondent
was cited for several additional safety violations after this incident. In 2022,
another employee fell to his death from a roof. The respondent received more

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citations for violations related to this death. Further, in 2024, the respondent
was 	convicted 	of 	the 	criminal 	offense 	of 	willful 	violation 	of 	OSHA
regulations causing death to employee under 29 U.S.C. § 666(e) (2024) and
sentenced to 4 months of incarceration. 	The Immigration Judge found that
“the respondent was aware of the dangers posed to his roofing crew by his
failure to comply with directives by public officials to provide safety
equipment.”
We discern no clear error with these findings, and we agree with the
Immigration Judge that the violations of OSHA regulations under these
circumstances are “a serious adverse discretionary factor.” 	However, we
disagree that they are outweighed by the respondent’s equities. These facts
illustrate that the respondent’s repeated disregard of policies designed to
keep his employees safe contributed to the death of one employee in 2019
and that he continued to amass violations and fines for failure to provide
necessary safety equipment to his employees. 	The respondent’s willful
failure to initially pay his fines exhibits a failure to accept the consequences
of his actions. He eventually made payments towards satisfying his past due
fines 	only 	when 	his 	inaction 	to 	provide 	required 	safety 	equipment
contributed to another employee’s death in 2022, and he was charged
criminally. The fact that the respondent was convicted of a crime related to
the 	willful 	violation 	of 	OSHA 	regulations 	further 	demonstrates 	the
seriousness of his conduct, as conviction necessarily requires a culpable
mental state. See 29 U.S.C. § 666(e).
Ultimately, the respondent’s serious and repeated blatant disregard for the
safety of his employees that culminated in a recent criminal conviction is a
major factor weighing against a favorable exercise in discretion. See Matter
of Castillo-Perez, 27 I&N Dec. 664, 671 (A.G. 2019) (explaining that “[a]n
alien’s criminal record—including its ‘nature, recency, and seriousness’—is
a key factor” in assessing discretion (quoting Matter of C-V-T-, 22 I&N Dec.
at 11)). 	The respondent’s equities are not the type of “unusual or even
outstanding equities” that would outweigh such significant adverse factors.
Matter of Gonzalez Jimenez, 29 I&N Dec. at 130. Weighing all factors, the
respondent has not shown that a favorable exercise of discretion would “be
in the best interests of the United States.” Id. at 134. We therefore disagree
with the Immigration Judge’s favorable exercise of discretion and reverse the
Immigration Judge’s grant of cancellation of removal.2
2 	Because the respondent is not eligible for cancellation of removal as a matter of
discretion, it is not necessary to address the issues of exceptional and extremely unusual
hardship or good moral character. 	See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

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ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The Immigration Judge’s May 13, 2025,
decision granting the respondent’s application for cancellation of removal is
vacated.
FURTHER ORDER: 	The respondent is ordered removed from the
United States to Ecuador.
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 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 $998 for each day the respondent is in violation. 	See INA
§ 274D, 8 U.S.C. § 1324d (2024); 8 C.F.R. § 280.53(b)(14) (2025).
(explaining that as a general rule, “courts and agencies are not required to make findings
on issues the decision of which is unnecessary to the results they reach”).