GARCIA-FLORES

page
230
Cite as 29 I&N Dec. 230 (BIA 2025) 	Interim Decision #4126
Matter of GARCIA-FLORES, Respondent
Decided by Board August 8, 20251
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In assessing whether the respondent warranted a favorable exercise of discretion, the
Immigration 	Judge 	exceeded 	his 	authority to consider 	the 	circumstances 	of 	the
respondent’s 	conviction 	by 	making 	an 	adverse 	credibility 	finding 	regarding 	the
respondent’s two child victims and in effect finding the respondent factually innocent of
the crime.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Jennifer A. Cordova,
Assistant Chief Counsel
BEFORE: 	Board Panel: 	MULLANE and GOODWIN, Appellate Immigration Judges;
MCCLOSKEY, Temporary Appellate Immigration Judge.
GOODWIN, Appellate Immigration Judge:
The Department 	of 	Homeland 	Security (“DHS”) appeals 	from 	the
decision of the Immigration Judge dated March 10, 2025, granting the
respondent’s application for cancellation of removal for certain lawful
permanent 	residents 	under 	section 	240A(a) 	of 	the 	Immigration 	and
Nationality Act (“INA”), 8 U.S.C. § 1229b(a) (2018). 	The respondent, a
native and citizen of Mexico, opposes the appeal.2 	The appeal will be
sustained.
On May 13, 2019, the respondent was convicted by a jury in Harris
County, Texas, for indecency with a child, and sentenced to 5 years in the
Texas Department of Corrections and required to register as a sex offender.
Based on this, the Immigration Judge found him removable as charged by
1 	Pursuant to Order No. 6391-2025, dated September 8, 2025, the Attorney General
designated the Board’s decision in Matter of Garcia-Flores (BIA Aug. 8, 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.
2 	We reject the respondent’s argument that DHS’s alleged failure to mail the notice of
appeal to him violated his right to due process. The notice of appeal indicates that it was
mailed to him.

Cite as 29 I&N Dec. 230 (BIA 2025) 	Interim Decision #4126
page
231
DHS under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i)
(2018), as an alien who at any time after admission is convicted of a crime
of child abuse. The respondent designated Mexico as the country of removal
and disclaimed a fear of persecution, torture, or harm if removed. He applied
for cancellation of removal for certain lawful permanent residents, and the
parties agreed that he was statutorily eligible. After considering the equities,
the Immigration Judge granted the application in the exercise of discretion.
We agree with DHS that the Immigration Judge exceeded his authority to
consider the circumstances of the respondent’s conviction by making an
adverse credibility finding regarding the respondent’s two child victims. The
facts and circumstances of a criminal conviction may be considered in
assessing whether a respondent merits discretionary relief. 	See Matter of
D. Rodriguez, 28 I&N Dec. 815, 824 (BIA 2024). “However, in ascertaining
the effect of a criminal conviction, neither the Board nor the Immigration
Judge may go beyond the judicial record to determine the guilt or innocence
of an alien.” Matter of Mendez, 21 I&N Dec. 296, 304 (BIA 1996). An alien
convicted of a crime “must be considered guilty of the crime.” Id. While the
Immigration Judge cited Matter of Mendez and correctly recognized that he
lacked authority to re-adjudicate the respondent’s guilt or innocence, he then
exceeded his authority by determining based on the State trial record that the
two children who accused the respondent of the indecent acts were actually
not credible, in effect crediting the respondent’s claim of actual innocence
and substituting his judgment for the jury’s. 	The authority to consider the
facts and circumstances of a criminal conviction in a discretionary analysis
does not include the ability to acknowledge legal guilt but find factual
innocence. Id.
The 	Immigration 	Judge’s 	discretionary 	finding 	cannot 	be 	affirmed
because it does not appropriately “consider[] [the respondent] guilty of the
crime.” 	Id. 	On our de novo review, we will deny the respondent’s
application in the exercise of discretion. 	See 8 C.F.R. § 1003.1(d)(3)(i)
(2025). 	The respondent’s positive employment, educational, family, and
personal equities do not outweigh his jury conviction for indecency with a
child, where the jury found that while working as a middle school teacher,
he caused the buttocks of a child under 17 years of age to touch his genitals
with the intent to arouse and gratify his sexual desire. His victim was an 8- or
9-year-old third-grade girl at the school where he worked, who reported the
abuse 3 years later when she was around 12. 	At trial, the state introduced,
among other evidence, testimony from the victim and another child who had
previously reported similar abuse from the respondent when she was a

Cite as 29 I&N Dec. 230 (BIA 2025) 	Interim Decision #4126
page
232
similar age to the first victim. The respondent maintained his innocence but
was convicted by the jury.3
A respondent with a “criminal record will ordinarily be required to
present [some] evidence of rehabilitation before relief is granted as a matter
of discretion.” Matter of C-V-T-, 22 I&N Dec. 7, 12 (1998). The respondent
has not acknowledged his guilt or shown remorse, and his claim of innocence
is inconsistent with the jury verdict. See Matter of Mendez, 21 I&N Dec. at
304. 	Considering the totality of the circumstances, the respondent has not
presented sufficient evidence of rehabilitation or sufficient unusual or
outstanding positive equities to overcome the serious negative discretionary
factor of his conviction for a sexual offense involving a child. See Matter of
C-V-T-, 22 I&N Dec. at 11–12. Accordingly, we will deny the respondent’s
application for cancellation of removal as a matter of discretion. 	See
Matter of Sotelo, 23 I&N Dec. 201, 203 (BIA 2001). 	We have considered
the negative and positive equities in this case and determine that the
respondent has not established his positive equities outweigh his criminal
conviction.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The Immigration Judge’s March 10, 2025,
decision granting cancellation of removal under section 240A(a) of the INA,
8 U.S.C § 1229b(a), to the respondent is vacated, and the respondent is
ordered removed to Mexico. The respondent’s status as a lawful permanent
resident is revoked.
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 (2018); 8 C.F.R. § 280.53(b)(14) (2025).
3 	We note that the respondent has a pending collateral attack on his conviction in the
Texas courts arguing ineffective assistance of counsel. This does not affect the validity of
his conviction for immigration purposes. See Matter of Thomas and Thompson, 27 I&N
Dec. 674, 690 (A.G. 2019) (holding that State convictions remain valid for immigration
purposes unless vacated, amended, or modified by State-court order for procedural or
substantive defect).