Cite as
29 I&N Dec. 72 (BIA 2025) Interim Decision #4096
Matter of Gilton BAIN, Respondent
Decided by Board February 6, 2025 1
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Considering the recency and repeated nature of the respondent’s criminal history and the
lack of a showing of rehabilitation, we conclude, upon consideration of the totality of the
record and a balancing of the factors present in this case, that he has not established that he
warrants cancellation of removal as a matter of discretion.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ashley Waldrop, Assistant
Chief Counsel
BEFORE: Board Panel: MULLANE, O’CONNOR, NAHAS, Appellate Immigration
Judges.
MULLANE, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) appeals the decision of
the Immigration Judge, dated July 12, 2024, granting the respondent’s
application for 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, a citizen of the Bahamas, opposes the
appeal. The appeal will be sustained, the Immigration Judge’s grant of
cancellation of removal will be vacated, and the respondent will be ordered
removed to the Bahamas.
The respondent bears the burden of establishing his eligibility for relief
from removal. 2 8 C.F.R. § 1240.8(d) (2025). Even where a respondent
has established statutory eligibility for relief, he also bears the burden
to establish that he merits such relief as a matter of discretion. See
1
Pursuant to Order No. 6272-2025, dated May 23, 2025, the Attorney General designated
the Board’s decision in Matter of Bain (BIA February 6, 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
The record shows that the respondent conceded removability and admitted the
allegations in the notice to appear at a hearing on March 5, 2024.
Page
72
Cite as 29 I&N Dec. 72 (BIA 2025) Interim Decision #4096
Matter of Arai,
13 I&N Dec. 494, 495 (BIA 1970). As negative discretionary
factors grow more serious, the respondent must show “offsetting favorable
factors, which in some cases may have to involve unusual or outstanding
equities.” Matter of C-V-T-,
22 I&N Dec. 7, 11–12 (BIA 1998) (citing
Matter of Edwards,
20 I&N Dec. 191, 195–96 (BIA 1990)). A respondent’s
criminal history can be a substantial adverse factor. See Matter of C-A-S-D-,
27 I&N Dec. 692, 699 (BIA 2019).
Although we review Immigration Judge’s factual findings for clear error,
the ultimate determination of whether the respondent merits a favorable
exercise of discretion is a legal determination we review de novo. 8 C.F.R.
§ 1003.1(d)(3)(i), (ii) (2025). While the Immigration Judge’s factual
findings are not clearly erroneous, we disagree with the Immigration Judge’s
discretionary decision to grant the respondent’s application for cancellation
of removal as a matter of discretion. 3 See Matter of Sotelo,
23 I&N Dec. 201,
203 (BIA 2001) (discussing the balancing of positive and negative factors
for a discretionary determination); Matter of C-V-T-,
22 I&N Dec. at 11
(same); Matter of Marin,
16 I&N Dec. 581, 585 (BIA 1978) (same). For the
reasons set forth below, the respondent does not warrant cancellation of
removal as a matter of discretion.
The Immigration Judge found that the respondent presented numerous
equities in the United States. The 35-year-old respondent has resided in the
United States since 1998 and as a lawful permanent resident since 2011. He
has significant family ties, including multiple United States citizen family
members residing in the United States. The respondent attended elementary,
middle, and high school in the United States, but dropped out and was still
working toward his GED. He previously worked as a carpenter with his
uncle and worked odd jobs at McDonald’s and at a car wash.
The respondent became homeless in 2018 or 2019 and would panhandle
during periods of unemployment to help pay for his child support. The
respondent only filed taxes once and was unemployed during parts of the
COVID pandemic. While the respondent claims that he can live with his
brother, the Immigration Judge noted the brother did not file a statement
3
The respondent argues that Exh. 6 does not relate to him and that the interviewer making
the gang affiliation determination found in that document was biased against him. While
DHS admits that Exh. 6’s last page references a woman with a similar prison identification
number to that of the respondent, it notes that pages 1–21 of Exh. 6 refer to the respondent,
including pictures of his face, body, and tattoos. DHS argues that the Immigration Judge
further erred in not giving this evidence of the respondent’s gang affiliation much weight.
In light of the significant adverse factors presented on this record, we need not consider,
and have not considered or relied on this document, in adjudicating this matter.
page
73
Cite as 29 I&N Dec. 72 (BIA 2025) Interim Decision #4096
reflecting this. The respondent did not take any rehabilitative classes while
incarcerated. The respondent did not present any other evidence of
rehabilitative efforts and denied that he had taken any drug classes.
The Immigration Judge also noted several significant adverse factors,
including the respondent’s extensive criminal history, which ranges from
2013 to 2021 in Florida. 4 The respondent’s first arrest was in 2013 for
possession of the drug MDMA. The case was dismissed and the charge
ultimately expunged after participation in a drug court program. In 2018, he
was convicted for driving without a valid license. The record establishes that
the respondent’s drug-related criminal history included six counts of selling
or delivering controlled substances. The information in his criminal case
reflects that the respondent, on four separate occasions (November 1, 2019,
November 12, 2019, January 10, 2020, and January 17, 2020) sold or
delivered cocaine, fentanyl, and heroin.
Upon de novo review, we agree with DHS’ appellate arguments and
conclude that the respondent’s equities are insufficient to outweigh his
extensive criminal history. We recognize that the respondent expressed a
desire to better himself and misses his family and children. However, the
record does not support that the respondent has sufficiently demonstrated
rehabilitation, particularly in light of his past drug-related criminal activity.
See Matter of C-V-T-, 22 I&N Dec. at 12 (“[A] respondent who has a criminal
record will ordinarily be required to present evidence of rehabilitation before
relief is granted as a matter of discretion.”).
We recognize that the respondent’s removal may result in a significant
level of hardship to himself and his family. The equities and the
humanitarian factors present in this case are not insignificant. The
respondent’s criminal record is, however, recent, serious, and recidivist.
4
Insofar as the respondent alleges the drugs underlying his convictions were not tested,
a conviction remains valid for immigration purposes unless and until the conviction is
vacated or otherwise overturned by the criminal court. See Matter of Adetiba,
20 I&N Dec.
506, 508 (BIA 1992) (holding that once a conviction is final, it remains final unless it is
overturned); Matter of Roberts,
20 I&N Dec. 294, 301 (BIA 1991) (“While inquiry may be
had into the circumstances surrounding the commission of the crime in order to determine
whether a favorable exercise of discretion is warranted, it is impermissible to go behind a
record of conviction to reassess the alien’s ultimate guilt or innocence.”); see also Matter
of Ponce De Leon,
21 I&N Dec. 154 (A.G. 1997; BIA 1997, 1996). Here, the respondent
has not shown that the convictions have been vacated and are no longer viable for
immigration purposes. See generally Matter of Pickering,
23 I&N Dec. 621, 624
(BIA 2003) (discussing the circumstances under which a vacated conviction is no longer a
conviction for immigration purposes), rev’d Pickering v. Gonzales,
465 F.3d 263
(6th Cir. 2006).
page
74
Cite as 29 I&N Dec. 72 (BIA 2025) Interim Decision #4096
Considering the recency and repeated nature of his criminal history and the
lack of a showing of rehabilitation, we conclude, upon consideration of the
totality of the record and a balancing of factors present in this case, that he
has not established that he warrants cancellation of removal as a matter of
discretion. As such, upon de novo review, we disagree with the Immigration
Judge’s favorable exercise of discretion in this case and reverse the
Immigration Judge’s grant of cancellation of removal. Accordingly, the
following orders will be entered.
ORDER: The appeal filed by the Department of Homeland Security is
sustained.
FURTHER ORDER: The Immigration Judge’s July 12, 2024,
decision granting the respondent’s application for cancellation of removal is
vacated.
FURTHER ORDER: The respondent is ordered removed from the
United States to the Bahamas.
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).
page
75
