Special Rule Cancellation under INA Section 240A(b)(2)


            Section 240A(b)(2) of the Immigration and Nationality Act (“INA” or “Act”) provides that an alien who is inadmissible or deportable from the United States is eligible for cancellation of removal and adjustment of status to that of a lawful permanent resident if he or she: 1) has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen or lawful permanent resident, or has a child who was subjected to such abuse; 2) has been physically present in the United States for a period of not less than three years immediately preceding the date of such application; 3) has been a person of good moral character during such period; 4) is not inadmissible under paragraph (2) or (3) of section 212(a), is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a), unless a domestic violence waiver is granted, and has not been convicted of an aggravated felony; and 5) establishes that removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent. If statutory eligibility is established, special rule cancellation may be granted in the exercise of discretion. INA Section 240A(b)(2).  


            For purposes of INA Section 240A(b)(2)(A)(i), battery or extreme cruelty “includes, but is not limited to . . . any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation . . . shall be considered acts of violence.” 8 C.F.R. Section 204.2(c)(1)(vi). Evidence of abuse may include “reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel . . . . Other forms of credible relevant evidence will also be considered.” 8 C.F.R. Section 204.2(c)(2)(iv).


            The issuance of the charging document does not stop the accural of physical presence in the United States for purposes of special rule cancellation of removal. INA Section 240A(b)(2)(B)(ii); see also Matter of Garcia, 24 I&N Dec. 179, 181 (BIA 2007). An alien is considered to have failed to maintain continuous physical presence in the United States under INA Section 240A(b)(2) if he or she has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. INA Section 240A(d)(2). Nonetheless, an alien is not considered to have failed to maintain continuous physical presence by reason of an absence if he or she demonstrates a connection between the absence and the battering or extreme cruelty perpetrated against the alien. INA Section 240A(b)(2)(B). No absence or portion of an absence connected to the battering or extreme cruelty may be counted toward the 90-day or 180-day limits established in INA Section 240A(d)(2). Id.


            In making a determination of extreme hardship, the Court considers the age of the applicant, both at the time of entry and at the time of his or her application for relief, his or her family ties in the United States and abroad, his or her length of residence in the United States, his or her own health, as well as that of his or her United States citizen children, political and economic conditions in the country of removal, the financial impact of departure from the United States, the possibility of other means of adjustment of status in the United States, his or her involvement and position in her local community, and his or her immigration history. Matter of Anderson, 16 I&N Dec. 596, 597 (BIA 1978). Evidence of extreme hardship may include “affidavits, birth certificates of children, medical reports, protection orders and other court documents, police reports, and other relevant credible evidence.” 8 C.F.R. Section 204.2(c)(2)(vi).

 

            

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