RETURN
TO GENERIC ORAL DECISION FORMAT
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
RETURN
TO GENERIC ORAL DECISION FORMAT