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 children of battered aliens and parents of
battered
alien children
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.
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 special rule cancellation. 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(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 § 240A(b)(2).
For
purposes of INA § 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. § 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. § 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 §
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 §
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 §
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 §
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 §
240A(d)(2). INA §
240A(b)(2)(B)
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). Extreme
hardship factors related to the battery or extreme cruelty should
be considered in addition to, or in lieu of, the factors considered
for analysis of cancellation of removal under 240A(b). See
8 C.F.R. §§ 1240.58(c), 1240.20. 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. § 204.2(c)(2)(vi).
ANALYSIS
AND FINDINGS
2. Statutory
Eligibility Factors
a. the
respondent has been battered or subjected to extreme cruelty:
• by:
• a
spouse who is or was a USC or LPR or
• respondent
must show that he/she entered into the marriage with the USC or LPR
in good faith. 8 C.F.R. § 204.2(c)(1)(i)(H).
• a
parent who is or was a USC or LPR or
• a
USC or LPR whom the alien intended to marry but whose marriage is
not legitimate because of the USC or LPR’s bigamy or
• is
the parent of a child of a USC or LPR and the child has been battered
or subjected to extreme cruelty by the USC or LPR
• battery
or extreme cruelty:
• “includes,
but is not limited to . . . any act or threatened act of violence,
including any forcible detention, which results or threatens to result
in physical or mental injury.” 8 C.F.R. § 204.2(c)(2)(vi).
• “Psychological
or sexual abuse . . . shall be considered acts of violence.”
8 C.F.R. § 204.2(c)(2)(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 evidence will
be considered.” 8 C.F.R. § 204.2(c)(2)(iv).
b. has
been physically present in the United States for a period of not less
than three years immediately preceding the date of such application
• issuance
of a charging document does not end the period of continuous physical
presence in the United States. INA § 240A(b)(2)(A)(ii).
• battered
spouse or child is ineligible for relief if he/she was outside of
the U.S. for 90 days at one time or 180 days in the aggregate during
3-year period (§240A(d)(2)), unless the absence is related
to the battering/extreme cruelty. INA § 240A(b)(2)(B).
c. has
been a person of good moral character during this three-year period
• Bars
to being a person of good moral character, INA § 101(f)
• habitual
drunkard
• person
described in certain sections of § 212(a)
• income
derived principally from illegally gambling
• convicted
of two or more gambling offenses
• has
given false testimony for the purposes of obtaining any benefit under
this Act
• has
been confined, during the period in which moral character is relevant,
as a result of conviction, to a penal institution for an aggregate
period of 180 days or more, regardless of whether the offense was
committed during such period
• convicted
of an aggravated felony
• conduct
proscribed in § 212(a)(3)(E) or 212(a)(2)(G) and
• catch-all:
“the fact that any person is not within any of the foregoing
classes shall not preclude a finding that for other reasons is or
was not of good moral character.” INA § 101(f)
• however,
conduct/conviction listed under § 101(f) is not a bar if the
AG determines that the conduct/conviction was related to the battering/extreme
cruelty and a waiver is nonetheless warranted.
• Note:
8th Circuit
held that conduct outside the 3-year period may be considered in the
good moral character determination for the former suspension of deportation
statute for battered spouses. Ikenokwalu-White
v. INS, 316 F.3d 798, 804-806 (8th Cir. 2003).
d. 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
• violence
waiver:
• An
alien who would otherwise be ineligible for Special Rule Cancellation
due to inadmissibility under paragraph (2) or (3) of section
212(a), or deportability under paragraphs (1)(G) or (2) through (4)
of section 237(a), may
be granted a domestic violence waiver under INA §
240A(b)(5).
• That
waiver is contained in INA §
237(a)(7),
which states that certain crimes of domestic violence and stalking
may be waived in the case of
“an alien who has been battered or subjected to extreme cruelty
and who is not and was not the primary perpetrator of violence in
the relationship... upon a determination that (I) the
alien was acting [in] self-defense; (II) the alien was found to have
violated a protection order intended to protect the alien; or (III)
the alien committed, was arrested for, was convicted of,
or pled guilty to committing a crime... that did not result in serious
bodily injury; and... where there was a connection between the crime
and the alien’s having been battered or subjected to extreme
cruelty.”
e. the
removal would result in extreme hardship to the alien, the alien’s
child, or the alien’s parent.
• Matter
of Anderson, 16 I. & N. Dec. 596, 597 (BIA 1978).
• Considerations
for extreme hardship: the age of the applicant, both at the time of
entry and at the time of his application for relief, his family ties
in the United States and abroad, his length of residence in the United
States, his own health, as well as that of his 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 involvement
and position in his local community, and his immigration history.
• Extreme
hardship factors specific to domestic violence should be considered
in addition to, or in lieu of, the factors considered for analysis
of cancellation of removal under 240A(b). See
8 C.F.R. §§ 1240.58(c), 1240.20.
• nature
and extent of the physical or psychological consequences of abuse
• impact
of loss of access to the United States courts and criminal justice
system,
i.e. for orders of protection, child custody
• likelihood
that the batterer's family, friends, or others acting on behalf of
the batterer in the home country would physically or psychologically
harm the applicant or the applicant's child(ren)
• applicant's
needs and/or needs of the applicant's child(ren)
for services for victims of domestic violence that are unavailable
or not reasonably accessible in the home country
• laws
and social practices in the home country that punish the applicant
or the applicant's child(ren) because they have been victims of domestic
violence or have taken steps to leave an abusive household; and
• abuser's
ability to travel to the home country and the ability and willingness
of authorities in the home country to protect the applicant and/or
the applicant's children.
• Evidence
of extreme hardship may include:
• “affidavits,
birth certificates of children, medical reports, protection orders
and other court documents, police reports, and other credible evidence.”
8 C.F.R. §
204.2(c)(2)(iv).
SUMMARY
OF STATUTORY ELIGIBILITY FACTORS
If
no issue as to statutory eligibility, sum up as follows:
• The
respondent has demonstrated that he/she was battered or subject to
extreme cruelty as defined in 8 C.F.R. §
204.2(c)(2)(vi).
• The
respondent has been physically present in the U.S. for not less than
three years immediately preceding this application (unless absence
was due to battery or extreme cruelty).
• The
respondent is not inadmissible or deportable or although the
respondent is inadmissible or deportable, a domestic violence waiver
is granted.
• The
respondent has not been convicted of an aggravated felony.
• The
respondent has established that his/her removal would be an extreme
hardship to the respondent or the respondent’s child
or the respondent’s parent.
• Therefore,
the Court must determine if the respondent warrants special rule cancellation
in the exercise of its discretion.
3. Discretion
• If
the statutory eligibility factors are met, special rule cancellation
may be granted in the exercise
of discretion. INA § 240A(b)(2).
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.
Accordingly, the Court finds that the Respondent merits/does not
merit special rule cancellation pursuant to Section 240A(b)(2)
of the Act.
ORDER
IT
IS HEREBY ORDERED
that the respondent's application for cancellation of removal
under section 240A(b)(2) 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(b)(2)
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
RETURN
TO GENERIC ORAL DECISION FORMAT