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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

_____________________ (Court)

____________________ (City, State)


File No.: A_____________________

 

In the Matter of                                   )

                                                            )

___________________________ )                       IN REMOVAL PROCEEDINGS

                                                            )

            Respondent                             )


CHARGE(S):


APPLICATION(S): Cancellation of removal for lawful permanent residents

 

ON BEHALF OF RESPONDENT:                           ON BEHALF OF DHS:

__________________, Attorney at Law                    ___________________

                                                                                    Assistant Chief Counsel

 


DECISION AND ORDER OF THE IMMIGRATION JUDGE


            The Respondent is a ___ year old, single/married, male/female, native and citizen of ___________. The United States Department of Homeland Security brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act. Proceedings were commenced with the filing of a Notice to Appear with the Immigration Court. See Exhibit 1.


Removability


            The Respondent admits the allegations contained in the NTA and concedes he is removable as charged. The Court therefore finds that removability has been established by clear and convincing evidence. See 8 C.F.R. § 1240.8(a); 1240.10(c).


OR


The Respondent admits:



The Respondent denies:


 

Evidence offered:



The Court finds:


AND


            The Respondent designated ____________ as the country of removal should that become necessary. The Respondent applied for relief from removal in the form of cancellation of removal for a lawful permanent resident. The Respondent’s application for cancellation of removal is contained in the record at Exhibit ___. Prior to the admission of the application, the Respondent was given the opportunity to make any necessary corrections to the application, and then swore or affirmed before this court that the application as corrected was all true and correct to the best of his knowledge.


STATEMENT OF THE LAW


            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.


            In addition to satisfying these three statutory eligibility requirements, an applicant for relief under Section 240A(a) of the Act must establish that he warrants such relief as a matter of discretion. The Board has held that the general standards developed for the exercise of discretion under INA § 212(c), which was repealed by section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), are also applicable to the exercise of discretion under INA § 240A(a). Matter of C-V-T-, 22 I. & N. Dec. 7, 10 (BIA 1998); 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”) (quoting Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978). In keeping with the standards developed under former § 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 behalf 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 (quoting Matter of Marin, 16 I. & N. Dec. at 585); Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990). 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 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. Matter of Sotelo-Sotelo, 23 I. & N. Dec. at 203; see also Matter of Marin, 16 I. & N. Dec. at 585.

                                                


ANALYSIS AND FINDINGS

 

1.         Statutory Eligibility Factors

 

            a.          lawfully admitted for permanent residence for not less than five years

 

                                  date accorded LPR status: _____________

                                                       Cuban Refugee Adjustment Act of 1966: aliens are credited with 30 months of retroactive residency, or the date of the citizen’s last arrival in the United States, whichever is later. Pub. L. No. 89-732.

                                  was the respondent actually entitled to LPR status, i.e. no fraud or misrepresentation?

                                                       An alien who acquired permanent resident status through fraud or misrepresentation has never been lawfully admitted for permanent residence and is therefore ineligible to apply for cancellation of removal under INA § 240A(a). Matter of Koloamatangi, 23 I. & N. Dec. 548, 552 (BIA 2003).

                                  any absences that would signal that the respondent abandoned status or reverted to commuter status?

                                                       BIA: Matter of Huang, 19 I. & N. Dec. 749 (BIA 1998); Matter of Zamora 17 I. & N. Dec. 395 (BIA 1980)

                                                      2nd Circuit: Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002) (Abandonment upheld based where LPR was out of U.S. for 9 years and lacked requisite intent to return )

                                                       5th Circuit: Moin v. Ashcroft, 335 F.3d 415, 421 (5th Cir. 2003) (upholding abandonment on substantial evidence standard where LPR spent 6 months in U.S. over 54 months)

                                                       9th Circuit: Khodagholian v. Ashcroft, 335 F.3d 1003, 1007-1009 (9th Cir. 2003) (LPR did not abandon residency where he made 3 trips out of the U.S. and the last trip exceeded one year)

                                        minors:

                                                       A parent’s lawful permanent resident status cannot be imputed to a child for purposes of calculating the 5 years of lawful permanent residence required to establish eligibility for cancellation of removal under INA § 240A(a)(1). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007)

                                                       9th Circuit: parent’s admission for lawful permanent residence is imputed to minor children Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005)

                                                       Minor child eligible for § 212(c) relief because parent had 7 year domicile in US, even though child did not.

                                                                     2nd Circuit: Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) 

                                                                     3rd Circuit: Morel v. INS, 90 F.3d 833, 841 (3d Cir. 1996), vacated on other grounds, 144 F.3d 248 (3rd Cir. 1998)

 

              b.         has resided in the United States continuously for 7 seven years “after having been

                        admitted in any status” INA §240A(a)(2).

                                  dates:

                                                       date of first Entry: __________

                                                       date of first lawful admission: ________

                                                       date of NTA: __________

                                  stop-time rule: under INA § 240A(d)(1), any period of continuous residence in the United States shall be deemed to end when the alien:

                                              (a) commits an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or

                                                       (b) commits an offense referred to in section 212(a)(2) that renders the alien removable from the United States under Section 237(a)(2) or 237(a)(4) or

                                                                     An alien’s alleged criminal conduct will terminate his continuous residence in the U.S. even if he is not charged and/or found inadmissible or removable on a ground specified in Section 240A(d)(1)(B). Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA 2006).

                                                                     Stop-time rule does not apply to the commission of an offense that is not “referred to in 212(a)(2).” Matter of Campos-Torres, 22 I. & N. Dec. 1289, 1294 (BIA 2000) [firearms offense].

                                              (c) is served with an NTA

                                                                     Re-starting continuous residence after the issuance of an NTA or OSC:

                                                                                    Alien may not accrue the requisite continuous presence for suspension of deportation after the service of OSC because service of the OSC ends continuous physical presence. Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000); McBride v. INS, 238 F.3d 371 (5th Cir. 2001); Iyamba v. INS, 244 F.3d 606, 608 (8th Cir. 2001); Ram v. INS, 243 F.3d 510 (9th Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262, 1299-1300 (11th Cir. 2001).

                                                                                    However, “an alien who departed the United States after being served with a valid charging document can seek relief in a subsequent removal proceeding, based on a new period of continuous physical presence measured from the date of his return.” Matter of Cisneros-Gonzales, 23 I. & N. Dec. 668, 670 (BIA 2004) [illegal reentry]; see also Okeke v. Gonzales, 407 F.3d 585, 590 (3d Cir. 2005) [legal reentry].

                                      retroactivity of the stop-time rule

                                                       (1) An Order to Show Cause ends continuous residence even if it was issued prior to IIRIRA’s enactment.

                                                                     Exception: for certain Nicaraguan, Salvadorian, Guatemalan, and former Soviet Block country nationals. See IIRIRA 309(c)(5).

                                                                     BIA: Matter of Nolasco-Tofino, 22 I. & N. Dec. 632, 637 (BIA 1999); Matter of N-J-B-, 21 I. & N. Dec. 812 (BIA 1997); but see Matter of Cisneros-Gonzales, 23 I. & N. Dec. at 672.

                                                                     1st Circuit: Afful v. Ashcroft, 380 F.3d 1, 7 (1st Cir. 2004)

                                                                     2nd Circuit: Rojas-Reyes v. INS, 235 F.3d 115, 123-24 (2d Cir. 2000); see also Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006) (holding that 240A(d)(1) and (2) apply to proceedings pending on the date of IIRIRA’s enactment).

                                                                     3rd Circuit: Pinho v. US, 249 F.3d 183 (3d Cir. 2001)

                                                                     4th Circuit: Appiah v. US INS, 202 F.3d 704, 708-709 (4th Cir. 2000)

                                                                     5th Circuit: Ayoub v. INS, 222 F.3d 214 (5th Cir. 2000)          

                                                                     6th Circuit: Suassuna v. INS, 342 F.3d 578 (6th Cir. 2003)

                                                                     7th Circuit: Angel-Ramos v. Reno, 227 F.3d 942 (7th Cir. 2000); see also Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir. 2003)

                                                                     8th Circuit: Afolayan v. INS, 219 F.3d 784 (8th Cir. 2000)

                                                                     9th Circuit: Ram v. INS, 243 F.3d 510 (9th Cir. 2001)             

                                                                     10th Circuit: Sibanda v. INS, 282 F.3d 1330 (10th Cir. 2002)

                                                                     11th Circuit: Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999)

 

                                                       (2a) The “stop-time” rule is triggered by the commission of an offense described in INA § 240A(d)(1) even if it was committed before the passage of INA § 240A

                                                                     BIA: Matter of Jurado, 24 I. & N. Dec. 29, 32 (BIA 2006); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006); Matter of Nolasco, 22 I. & N. Dec. 632 (BIA 1999); Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999)

                                                                     1st Circuit: Peralta v. Gonzales, 441 F.3d 23, 30 (1st Cir. 2006)

                                                                     2nd Circuit: Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006) (holding that 240A(d)(1) and (2) apply to proceedings pending on the date of IIRIRA’s enactment).

                                                                     3rd Circuit: Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2005) (without discussion), remanded on other grounds

                                                       (2b) The stop-time rule does not apply to crimes committed before IIRIRA’s enactment

                                                                     2nd Circuit: Stop-time rule does not apply to respondents whose crimes were committed before IIRIRA but whose removal proceedings were commenced after April 1, 1997, IIRIRA's effective date. Henry v. Ashcroft, 175 F. Supp. 2d 688, 693 (S.D.N.Y. 2001)   

                                                                     9th Circuit: stop-time rule does not apply to aliens who pled guilty before the enactment of IIRIRA and were eligible for discretionary relief at the time of IIRIRA’s enactment. Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1202-1203 (9th Cir. 2006)

 

              c.         has not been convicted of an aggravated felony

                                    where a respondent was, prior to IIRIRA, convicted of a crime which constitutes an aggravated felony, he is ineligible to apply for cancellation of removal even if he can waive the conviction under 212(c) because 212(c) only waives the finding of deportability, not the basis of the deportability. Becker v. Gonzales, __ F.3d __, 2007 WL 60840 (9th Cir. 2007); see also Chan v. Gantner, 464 F.3d 289, 294 (2d Cir. 2006) (holding that where an alien was convicted of an aggravated felony and then received a 212(c) waiver, the conviction could still be considered during naturalization proceedings) however, respondent who was convicted of a crime post-

                                        IIRIRA, but before that crime was included in the definition of aggravated felonies, is eligible for cancellation of removal. Lopez-Castellanos v. Gonzales, 437 F.3d 848, 853-54 (9th Cir. 2006)

 

            d.         bars to cancellation of removal under INA § 240A(c):

                                      An alien who entered the United States as a crewman subsequent to June 30, 1964.

                                        An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of this title, or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212.

                                        An alien who–

                                                       (A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training,

                                                       (B) is subject to the two-year foreign residence requirement of section 212, and

                                                       (C) has not fulfilled that requirement or received a waiver thereof.

                                        (4) An alien who is inadmissible under section 212 or deportable under section 237

                                        (5) An alien who is described in section 241 of this title.

                                        (6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244 or who has been granted relief under section 212, as such sections were in effect before September 30, 1996

                                                       even if that waiver was granted in the same proceeding in which cancellation was sought. Garcia-Jimenez v. Gonzales, 2007 WL 9029 (9th Cir. 2007)

            


SUMMARY OF STATUTORY ELIGIBILITY FACTORS


If no issue as to statutory eligibility, sum up as follows:

 

                      The respondent has been a lawful permanent resident for more than five years, and he has also resided in the United States continuously for seven years after having been admitted in any status.

                       The Respondent has not been convicted of an aggravated nor is he/she subject to any others statutory bars to cancellation of removal or although he has been convicted as alleged, his conviction is not for an aggravated felony.

             •          Therefore, this case centers on the discretionary balance of factors within the framework of Matter of C-V-T-, 22 I. & N. Dec. 7 (BIA 1998).


 

4.         Discretionary Factors

 

          Negative Factors

                      Arrest/Conviction Record





 

                      How many arrests over what period of time?


 

                      Evidence of gang membership?

 

 

                      Failure to pay child support?  


 

                      Misuse of Government Benefits?


 

                      Probation Violations/failure to complete classes (failure to learn from mistakes, failure to respect the law, prone to repeating adverse behavior)?


 

                      Was the respondent honest with this court? Or did he attempt to discount or hide his criminal history?


 

                      Were any of the offenses violent?


 

                      Injury to victim?


 

                      Did any involve the trafficking of drugs?



 

          Positive Factors


 

                      Current age: ______

                      Age when first came to the US: ______

                      Total number of years in the US: ______

                      Number of years as LPR: ______

                      Immediate family ties in the US:


 

                      Extended family ties in the US:                      

 

 

                      Family ties in home country:


 

                      Specific Hardship to respondent or any family members?                 


 

                      Employment


 

                      Pay taxes/file tax returns        


 

                      Medical concerns


 

                      Register for selective service/service in armed forces


 

                      Assets


 

                      Volunteer Activities


 

                      Letters of Support in the record


 

                      Reason for criminal conduct (any mitigating circumstances)?


 

                      Is there anything in particular that shows a change in the respondent?

                                  See, e.g., Akinyemi v. INS, 969 F.2d 285, 288 (7th Cir. 1992) (holding that the BIA must consider rehabilitation in balancing the equities)

 

                                  appreciates seriousness of conduct     

 

                                  appreciates consequences of actions

 

                                  impact of time spent in Immigration Custody

 

                                  demeanor of respondent

 

                                  acceptance of responsibility for his own action

 

                                  attendance at classes (domestic violence, anger management, AA, NA)

 

                                  time between last conviction and the NTA (recency of criminal conduct)

 

                                  realization that this would be a last chance

 




SUMMARY OF DISCRETIONARY FACTORS

 

In sum, after weighing the favorable and adverse factors, the Court finds that the totality of the evidence indicates that the Respondent has/has not demonstrated that he/she merits a favorable exercise of discretion. See Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990) (holding that the Immigration Judge and the BIA must conduct a “a complete review of the favorable factors in his case”). Accordingly, the Court finds that the Respondent merits/does not merit cancellation of removal pursuant to Section 240A(a) of the Act.

 


ORDER


IT IS HEREBY ORDERED that the respondent's application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act be GRANTED.


OR


IT IS HEREBY ORDERED that the respondent's application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act be DENIED.


IT IS HEREBY ORDERED that the respondent be deported from the United States to ________ [country of designation] based on the charges contained in the NTA.



 

_________________                                                 

Date                                                                            _______________ (Immigration Judge)

                                                                                    Immigration Judge


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