Cite as
29 I&N Dec. 249 (BIA 2025) Interim Decision #4129
Matter of Samuel Michael McDONALD, Respondent
Decided by Board August 13, 2025 1
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The respondent’s convictions for endangering the welfare of a child, combined with the
respondent’s conduct as described in the charging document and the victim’s statement,
demonstrate that the respondent does not warrant a favorable exercise of discretion.
FOR THE RESPONDENT: Thomas M. Griffin, Esquire, Philadelphia, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey F. Boyles, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and GOODWIN, Appellate Immigration Judges;
MCCLOSKEY, Temporary Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) appeals from the
Immigration Judge’s January 15, 2025, decision granting the respondent, a
lawful permanent resident of the United States and native and citizen of
Canada, cancellation of removal under section 240A(a) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1229b(a) (2018), as a matter of
discretion. The respondent opposes the appeal. DHS’ appeal will be
sustained.
We review findings of fact determined by an Immigration Judge,
including credibility findings, under a “clearly erroneous” standard. 8 C.F.R.
§ 1003.1(d)(3)(i) (2025). We review questions of law, discretion, and
judgment, and all other issues in an appeal from the decision of an
Immigration Judge, under a de novo standard.
8 C.F.R. § 1003.l(d)(3)(ii).
The respondent has the burden of establishing that he meets all applicable
eligibility requirements for cancellation of removal and that he merits a grant
1
Pursuant to Order No. 6406-2025, dated September 22, 2025, the Attorney General
designated the Board’s decision in Matter of McDonald (BIA Aug. 13, 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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of relief in the exercise of discretion. See INA § 240(c)(4)(A), 8 U.S.C.
§ 1229a(c)(4)(A) (2018);
8 C.F.R. § 1240.8(d) (2025).
The respondent was admitted to the United States as a lawful permanent
resident on May 4, 1991, when he was approximately 24 years old, and has
remained in the United States since that time. The Immigration Judge
granted the respondent cancellation of removal based on a consideration of
the discretionary factors, and determined that the equities outweighed the
adverse factors, including the respondent’s long residence in the United
States, his family ties within the United States, his employment and health
history, and the hardship to his United States citizen daughter in the event of
the respondent’s removal. See Matter of C-V-T-, 22 I&N Dec. 7, 11
(BIA 1998).
In assessing whether the respondent merits a favorable exercise of
discretion on his cancellation application, 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.” Id. (citation omitted). “[F]avorable considerations include
such factors as 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 deportation 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 exclusion or deportation (now 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 found that the respondent was “convicted of two
counts of endangering the welfare of a child, pursuant to New York Penal
Law Section 260.10(1), a Class A misdemeanor that covers a broad range of
conduct and is not limited to any sexual abuse or contact.” 2 (Emphasis
2
Section 260.10(1) of the New York Penal Law states:
A person is guilty of endangering the welfare of a child when:
1. He or she knowingly acts in a manner likely to be injurious to the physical,
mental or moral welfare of a child less than seventeen years old or directs or
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added). On appeal, DHS argues that the Immigration Judge erred in
assuming that no sexual conduct occurred with the victim based on the lack
of a conviction for a sexual offense. We agree with DHS based on the text
of the statute, which does not exclude sexual activity, and the fact that the
2021 charging document included sexual conduct. See Matter of Thomas,
21 I&N Dec. 20, 23-26 (BIA 1995) (determining whether to exercise
discretion in the respondent’s favor based on consideration of evidence of
unfavorable conduct, including criminal conduct which has not culminated
in a final conviction for purposes of the INA). Thus, the Immigration Judge
clearly erred in finding the respondent did not engage in the sexual acts
alleged by the victim. See
8 C.F.R. § 1003.1 (d)(3)(i).
Upon de novo review of the discretionary determination, we consider the
victim’s statement that the respondent bought his 14-year-old victim sex toys
and drugs, including crack cocaine, that the respondent attempted to lure the
victim into a sexual relationship with him and another woman, that he prefers
girls with psychiatric health issues, and that the respondent arranged for his
victim to perform sexual acts with another adult male. We acknowledge the
respondent’s testimony that the victim was either dreaming or was coached
in making her statement and his claim that his relationship with the victim
was platonic. However, we also recognize the uncontested findings of the
Immigration Judge that the respondent traveled with the 14-year-old victim
to assist her in obtaining cocaine and subsequently accompanied this
14-year-old victim so that she could sell Xanax.
The respondent has a significant history of employment, although he is
currently reliant on public assistance for income, food, and health care. The
respondent’s adult daughter, who lives with her partner, has autism and
mental health issues, and the respondent also has health issues and long
residence in the U.S. However, even assuming the respondent’s relationship
with the 14-year-old victim was platonic, the seriousness and recency of the
respondent’s uncontested criminal acts are extremely significant negative
factors.
Upon de novo review, we conclude that the respondent’s serious and
recent criminal behavior outweighs the positive factors present in his case.
Therefore, we conclude that the respondent has not adequately demonstrated
that he warrants a favorable exercise of discretion, and we will reverse and
vacate the grant of cancellation of removal.
authorizes such child to engage in an occupation involving a substantial risk of
danger to his or her life or health.
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Finally, DHS alleges on appeal that the Immigration Judge erred in
finding the respondent generally credible, but not credible as to his testimony
regarding his sexuality. We note that the respondent’s claim to not have
sexual interest in his victim because she is “the wrong gender,” is premised
upon noncredible testimony. See INA § 240(c)(4)(C), 8 U.S.C.
§ 1229(c)(4)(C) (stating that credibility determinations are based on the
totality of the circumstances and all relevant factors, including the
responsiveness of the applicant, the inherent plausibility of the applicant’s
account, the consistency between the applicant’s written and oral statements,
and the internal consistency of each such statement). Although the
respondent’s lack of credibility in one area has affected the credibility of the
rest of his testimony, particularly related to the nature of the relationship with
the victim, we need not remand the case to the Immigration Judge for
additional findings because we reverse the discretionary grant of cancellation
of removal on other grounds.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: The Immigration Judge’s grant of cancellation
of removal is reversed and vacated.
FURTHER ORDER: The respondent is ordered removed to Canada.
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 Department of Homeland
Security, 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).
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