Submitted: September 26, 2018
Petition for Review of an Order of the Board of Immigration
Appeals
Before
WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, Circuit Judge.
Pedro
Olea Camacho petitions for review of the Board of Immigration
Appeals's ("BIA") denial of his motion to
reconsider the BIA's previous order denying him a
discretionary adjustment of status. We deny the petition.
I.
Background
Pedro
Olea Camacho is a Mexican citizen who first entered the
United States without inspection in 1987. He has been married
twice since entering the country. He adjusted his status to
lawful permanent resident on December 7, 2000, on the basis
of his first marriage. During his application process for
adjustment of status, Camacho failed to disclose that he was
convicted of fifth-degree theft in Iowa on September 17,
1993.
In
March of 2015, Camacho was convicted in Iowa of two counts of
indecent contact with a child. The charges related to alleged
sexual misconduct between 1999 and 2002. The victims were the
grandchildren of his first wife. Camacho pled guilty to both
counts. Following Camacho's conviction, the Department of
Homeland Security ("DHS") served Camacho a Notice
to Appear charging him with removability under: 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien convicted of an
aggravated felony (his sexual abuse of a child conviction);
§ 1227(a)(2)(E)(i), as an alien convicted of a crime of
domestic violence; § 1227(a)(2)(A)(ii), as an alien
convicted of two crimes involving moral turpitude; and §
1227(a)(1)(A), as an alien who obtained admission via fraud
in 2000 by failing to disclose his 1993 theft conviction.
Camacho responded by disputing his prior conviction for theft
and denying all grounds for removability. On May 26, 2015,
the Immigration Judge ("IJ") issued a decision
finding Camacho removable as an alien convicted of an
aggravated felony. Camacho then applied to adjust status
through his second wife (a U.S. citizen), and sought a waiver
of his inadmissibility.
At the
hearing to evaluate Camacho's application, Camacho
testified that he was innocent of the underlying conduct of
indecent contact with a child. Camacho explained that he pled
guilty to the charges in order to avoid the possibility of a
lengthy mandatory minimum sentence if convicted at trial, but
that he had not actually engaged in the alleged activity. He
said the charges were the result of a plot by his ex-wife to
frame him. Other members of his community testified to his
good character.
The IJ
granted Camacho's application, finding that Camacho
merited a favorable exercise of discretion. The IJ
acknowledged that ordinarily a conviction for sexual abuse of
a minor would weigh heavily against granting discretionary
relief. However, the IJ found that Camacho's testimony
and that of his witnesses "render[ed] the conduct
underlying the [sexual contact] conviction dubious." As
a result, the IJ announced he would not afford the conviction
its ordinary "full adverse weight."
Neither
would the IJ ignore the conviction. Testimony elicited by the
government suggested that one of Camacho's victims had
attempted suicide following the alleged sexual misconduct. In
particular, Camacho's wife acknowledged the attempted
suicide during her testimony:
Q: What happened was one of the victims tried to kill
herself, right?
A: Uh-huh.
The IJ
did not directly quote Ms. Camacho's testimony. The IJ
explained, however, that testimony mentioning an
"apparent suicide attempt by one of the victims in
concert with the accusations" led him to consider the
conviction (while still giving it less weight to account for
the possibility that Camacho was innocent). The IJ found that
the other equities, including Camacho's long ties to his
community and family, merited relief. The IJ also considered
the possibility that Camacho's wife could commit suicide
if the ...