Cancellation of Removal under INA Section 240A(a)


            Section 240A(a) of the Immigration and Nationality Act (“INA” or “Act”) provides that a lawful permanent resident is eligible for cancellation of removal if he or she: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of an aggravated felony. Pursuant to INA Section 240A(d)(1) (the “stop-time” rule), any period of continuous residence in the United States shall be deemed to end when the applicant is served with an NTA, or when the applicant commits an offense referred to in INA Section 212(a)(2) that renders the applicant inadmissible to the United States under INA Section 212(a)(2) or removable under INA Sections 237(a)(2) or INA Section 237(a)(4). See also Matter of Campos-Torres, 22 I&N Dec. 1289, 1294 (BIA 2000) (holding that a firearms offense that renders an alien removable under section 237(a)(2)(C) is not one “referred to in section 212(a)(2)” and thus does not stop the accrual of continuous residence for purposes of establishing eligibility for cancellation of removal).

 

            In addition to demonstrating statutory eligibility, an applicant for cancellation of removal bears the burden of showing that relief is warranted in the exercise of discretion. INA Section 240A(a); see also Matter of C-V-T-, 22 I&N Dec. 7, 8-9 (BIA 1998). The Board has held that the general standards developed for the exercise of discretion under INA Section 212(c) are also applicable to the exercise of discretion under INA Section 240A(a). Matter of C-V-T-, 22 I&N Dec. at 10; see also Matter of Sotelo-Sotelo, 23 I&N Dec. 201, 202 (BIA 2001) (affirming Matter of C-V-T- and emphasizing that the discretionary determination “will depend in each case on the nature and circumstances of the ground of [removability] sought waived”). In keeping with the standards developed under former Section 212(c) of the Act, the Court should consider the record as a whole and balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his favor to determine whether a grant of relief would be in the best interest of this country. Matter of C-V-T-, 22 I&N Dec. at 11; Matter of Edwards, 20 I&N Dec. 191, 195 (BIA 1990); Matter of Marin, 16 I&N Dec. 581, 584 (BIA 1978). There is no threshold requirement that the applicant show unusual or outstanding equities; rather the Court must weigh the favorable and adverse factors to balance the “totality of the evidence” before reaching a conclusion as to whether the applicant warrants a grant of cancellation of removal in the exercise of discretion. Matter of Sotelo-Sotelo, 23 I&N Dec. at 204 (quoting Matter of C-V-T-, 22 I&N Dec. at 10); Matter of Edwards, 20 I&N Dec. at 196. More serious misconduct necessarily weighs more heavily against the exercise of discretion than does less serious misconduct; therefore the applicant must present additional favorable evidence to counterbalance an adverse factor such as serious criminal activity. Id. at 203; see also Matter of Marin, 16 I&N Dec. at 585.


            When exercising discretion in a cancellation of removal case, positive factors to be considered include, but are not limited to, family ties in the United States, residence of long duration in this country, evidence of hardship to the applicant and his family if removal occurs, a history of employment, existence of property or business ties, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to the applicant’s good moral character. Matter of C-V-T-, 22 I&N Dec. at 11; Matter of Edwards, 20 I&N Dec. at 196; Matter of Marin, 16 I&N Dec. at 584-585. Adverse factors to be considered include the nature and underlying circumstances of the removal ground at issue and any other evidence that could be indicative of an applicant’s bad character or undesirability as a permanent resident of this country. Matter of C-V-T-, 22 I&N Dec. at 11; Matter of Marin, 16 I&N Dec. at 584.

 


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