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.
RETURN
TO GENERIC ORAL DECISION FORMAT