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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 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

                                                                                    



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