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Cancellation of Removal under INA Section 240A(b)(1)


Statutory Eligibility.

 

            To be eligible for cancellation of removal under INA § 240A(b), Respondent must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense under section § 212(a)(2), 237(a)(2), or 237(a)(3) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States an alien admitted for lawful permanent residence. See INA § 240A(b)(1).

 

1. Continuous physical presence


            Pursuant to INA § 240A(d)(1), continuous physical presence ends either when the alien is served with a Notice to Appear (“NTA”) (Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004)), or when Respondent has committed (Matter of Perez, 22 I&N Dec. 689 (BIA 1999)) an offense referred to in INA § 212(a)(2) (Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)) that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)(4).


            Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Instead, continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.


            An immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected

to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).

 

2. Good Moral Character and No Disqualifying Criminal Convictions


            The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-798 (BIA 2005).


            An alien need not be charged and found inadmissible or removable on a ground specified in INA § 240A(d)(1)(B), in order for the alleged criminal conduct to terminate the alien’s continuous physical presence in this country. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). Footnote

 


            An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under INA § 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude. Id.


            Similarly, an alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act. Id. An alien whose conviction precedes the effective date of INA § 237(a)(2)(E), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).

 

3. Exceptionally and Extremely unusual Hardship

               

            To establish “exceptional and extremely unusual hardship,” the applicant must show

that his or her qualifying relative would suffer hardship substantially beyond that which would ordinarily result from an alien's removal. See Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001) (finding that the qualifying relatives were healthy and would suffer hardship that was not substantially different from that expected from the removal of any alien with close family members in the United States). Yet, the alien need not show that such hardship would be unconscionable. Id. at 61. Only hardship to the alien’s qualifying relative is considered. INA Section 240A(b)(1)(D). However, hardship to the alien may be evaluated insofar as it affects his or her qualifying spouse, parent, or child. Matter of Monreal, 23 I&N Dec. at 63.


            Factors to be considered in determining the level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. Matter of Monreal, 23 I&N Dec. at 63. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal are also relevant factors, but will generally be insufficient, in and of themselves, to support a finding of exceptional and extremely unusual hardship. Matter of Andazola-Rivas, 23 I&N Dec. 319, 323-324 (BIA 2002); Matter of Monreal, 23 I&N Dec. at 63;. However, all hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that is exceptional and extremely unusual. Matter of Monreal, 23 I&N Dec. at 64. See generally Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001) (evaluating the hardship standard under the former suspension of deportation statute). For example, the Board has determined that diminished educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.” Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002). 


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