Suspension
of Deportation
The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”)
eliminated the relief of suspension of deportation and substituted
a similar remedy, cancellation of removal, at INA 240A.
See IIRIRA 304,
110 Stat. 3009. Nonetheless, an alien who was placed in deportation
proceedings prior to the enactment of IIRIRA (April 1, 1997) may apply
for suspension of deportation as it existed under former INA 244(a)(1)
(1995).
IIRIRA
309(c)(1).
A
deportable
alien may be granted suspension of deportation if he has been physically
present in the United States for a continuous period of not less than
seven years immediately preceding the
date of his application, proves that he has been a person of good
moral character during that period, and can demonstrate
that his deportation would result in extreme hardship to himself or
to his U.S. citizen or lawful permanent resident spouse, parent, or
child. Id. Finally,
the applicant must prove that his application should be granted in
the exercise of discretion. See,
e.g., Matter
of Pilch, 21 I&N Dec. 627, 629 (BIA 1996).
The
seven-year period of continuous presence is not broken by a brief,
casual and innocent departure from the United States that is not “meaningfully
interruptive.” Former INA 244(b)(2). However, continuous physical
presence in the United States shall be deemed to end when the alien
is served with an Order to Show Cause or a Notice to Appear. INA 240A(d)(1);
see
also Matter
of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000). Pursuant
to IIRIRA’s transitional rule with regard to suspension of deportation,
this “stop-time rule” applies regardless whether the charging
document was filed before, on, or after IIRIRA’s effective date.
Matter
of Nolasco,
22 I&N Dec. 632 (BIA 1999).
Furthermore, the “stop-time rule,” as defined in INA 240A(d)(1),
which cuts off an alien’s continual physical presence upon commission
of certain criminal offenses, retroactively applies to an alien if
his or her deportation proceedings were pending on the date of the
enactment of IIRIRA. Tablie
v. Gonzales, 2006 WL 3512954 *3-4 (2d Cir. Dec. 6, 2006). The
relevant criminal offenses are those referred to in INA 212(a)(2),
237(a)(2), or 237(a)(4). See
INA 240A(d)(1).
A finding of good moral character is both a statutory
and discretionary matter. An applicant may be unable to demonstrate
that he is a person of good moral character based on his status or
commission of certain acts enumerated in the Act, or the Court may
find, as a matter of discretion, that for other reasons, an applicant
is or was not a person of good moral character. INA 101(f).
To evaluate whether the applicant or his qualifying
family member would suffer “extreme hardship,” the following
factors should be considered: length of residence in the United States;
family ties in the United States and abroad; the health of the alien
and his family members; the economic and political situation in the
country of deportation; financial status, business, or occupation;
other means for adjustment of status; immigration history; whether
the alien is of special assistance to the United States; and the alien’s
position in his community. Matter
of Anderson, 16 I&N Dec. 596, 597 (BIA 1978). “While
political and economic conditions in an alien's homeland are relevant
factors in determining extreme hardship under Section 244(a)(1), they
do not justify a grant of relief unless other factors such as advanced
age, severe illness, family ties, etc. combine with economic detriment
to make deportation extremely hard on the alien or the citizen or
permanent resident members of his family.” Id.
In evaluating an application for suspension of deportation,
the hardship to the applicant’s
United States citizen child must be given careful
consideration, as the applicant’s eligibility
for relief may be established by demonstrating that
his or her deportation would result in
extreme hardship to the child. Matter
of Kao & Lin, 23 I&N Dec. 45 (BIA 2001).
Finally, a discretionary determination may be based
on criminal behavior that does not render the alien ineligible for
relief. Matter of Seda,
17 I&N Dec. 550 (BIA 1980).
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