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REAL ID - 240A(a)
UNITED
STATES DEPARTMENT OF JUSTICE
EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
(LOCATION)
File
No: A___________
In
the Matter of )
)
______________________________ )
IN REMOVAL PROCEEDINGS
)
Respondent
)
CHARGE(S):
APPLICATION(S):
Cancellation of removal for lawful permanent resident
ON
BEHALF OF RESPONDENT: ON
BEHALF OF DHS:
__________________,
Attorney at Law ________________
Assistant
Chief Counsel
ORAL
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
Option 1: 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.
OR
Option 2: The respondent
admits:
The respondent denies:
Evidence offered in
support of removability:
The Court finds:
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 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
To be eligible for cancellation
of removal under Section 240A(a) of the Immigration and Nationality
Act, an alien must demonstrate that he has been lawfully admitted
for permanent residence for not less than five years, has resided
in the United States continuously for seven years after having been
admitted in any status, and 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 general standards developed
in Matter of Marin,
16 I&N Dec. 581 (BIA 1978) for the exercise of discretion under
Section 212(c) of the Act are applicable to the exercise of the discretion
under Section 240A(a). See Matter
of C-V-T-, 22 I&N Dec. 7 (BIA 1998). An Immigration Judge,
upon review of the record as a whole, must balance the adverse factors
evidencing the alien’s undesirability as a permanent resident
with the social and humane considerations presented in his or her
behalf to determine whether the granting of relief appears in the
best interest of this country. The applicant for cancellation, however,
need not first meet a threshold test of showing unusual or outstanding
equities. See Matter
of Sotelo, 23 I&N Dec. 201 (BIA 2001).
As was explained in
Matter of C-V-T-,
supra, factors pertinent
to the exercise of discretion under section 212(c) are equally relevant
to the exercise of discretion under section 240A(a) of the Act. For
example, favorable considerations include such factors as family ties
within the United States, residence of long duration in this country
(particularly when the inception of residence occurred at a young
age), evidence of hardship to the respondent and his family if deportation
occurs, service in this country’s armed forces, a history of
employment, the existence of property or business ties, evidence of
value and service to the community, proof of genuine rehabilitation
if a criminal record exists, and other evidence attesting to a respondent’s
good character. Among the factors deemed adverse to an alien are the
nature and underlying circumstances of the grounds of exclusion or
deportation (now removal) that are at issue, the presence of additional
significant violations of this country’s immigration laws, the
existence of a criminal record and, if so, its nature, recency, and
seriousness, and the presence of other evidence indicative of a respondent’s
bad character or undesirability as a permanent resident of this country.
Id.
In some cases, the minimum equities required to
establish eligibility for relief under section 240A(a) (i.e., residence
of at least 7 years and status as a lawful permanent resident for
not less than 5 years) may be sufficient in and of themselves to warrant
favorable discretionary action. However, as the negative factors grow
more serious, it becomes incumbent upon the alien to introduce additional
offsetting favorable evidence.
With respect to the
issue of rehabilitation, a respondent who has a criminal record will
ordinarily be required to present evidence of rehabilitation before
relief is granted as a matter of discretion. However, applications
involving convicted aliens must be evaluated on a case-by-case basis,
with rehabilitation a factor to be considered in the exercise of discretion.
A showing of rehabilitation is not an absolute prerequisite in every
case involving an alien with a criminal record. Matter
of C-V-T-, supra.
SUSTAINING
BURDEN AND CREDIBILITY
The provisions of the
“REAL ID Act of 2005" apply to the respondent’s application
as it was filed on or after May 11, 2005.
Section
240(c)(4)(B) and (C) of the Act state as follows:
(B)
SUSTAINING BURDEN- The applicant must comply with the applicable requirements
to submit information or documentation in support of the applicant's
application for relief or protection as provided by law or by regulation
or in the instructions for the application form. In evaluating the
testimony of the applicant or other witness in support of the application,
the immigration judge will determine whether or not the testimony
is credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant has satisfied the applicant's burden
of proof. In determining whether the applicant has met such burden,
the immigration judge shall weigh the credible testimony along with
other evidence of record. Where the immigration judge determines that
the applicant should provide evidence which corroborates otherwise
credible testimony, such evidence must be provided unless the applicant
demonstrates that the applicant does not have the evidence and cannot
reasonably obtain the evidence.
(C) CREDIBILITY DETERMINATION- Considering the totality of the circumstances,
and all relevant factors, the immigration judge may base a credibility
determination on the demeanor, candor, or responsiveness of the applicant
or witness, the inherent plausibility of the applicant's or witness's
account, the consistency between the applicant's or witness's written
and oral statements (whenever made and whether or not under oath,
and considering the circumstances under which the statements were
made), the internal consistency of each such statement, the consistency
of such statements with other evidence of record (including the reports
of the Department of State on country conditions), and any inaccuracies
or falsehoods in such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant's claim,
or any other relevant factor. There is no presumption of credibility,
however, if no adverse credibility determination is explicitly made,
the applicant or witness shall have a rebuttable presumption of credibility
on appeal.
ANALYSIS
AND FINDINGS
Statutory
Eligibility questions:
1. Has
the respondent been convicted of an aggravated felony?
a. An
alien convicted of an aggravated felony at any time is not eligible
for cancellation for lawful permanent residents
b. An
aggravated felony conviction which was waived for purposes of inadmissibility
or removability still bars an alien from receiving cancellation. Becker
v. Gonzales, ___ F.3d ___, 2007 WL 60840 (9th
Cir. Jan. 10, 2007) (finding
that even if alien were able to waive his 1978 aggravated felony conviction
for possession of marijuana for sale under § 212(c), it would
nonetheless remain an aggravated felony for purposes of precluding
his application for cancellation of removal based on 2004 conviction);
see Matter
of Balderas, 20 I&N Dec. 389, 391 (BIA 1991) (the grant
of a 212(c) waiver does not eliminate or erase the underlying conviction).
2. Is
the respondent a Lawful Permanent Resident (LPR)?
a. The
phrase “lawfully admitted for permanent residence” means
“the status of having been lawfully accorded the privilege of
residence permanently in the United States as an immigrant in accordance
with the immigration laws, such status not having changed.”
Section 101(a)(20) of the Act.
b. How
did the respondent obtain LPR status?
c. Was
the respondent actually entitled to receive LPR status? Lawful
permanent residence must have been obtained lawfully. Monet
v. INS, 791 F.2d 752 (9th Cir. 1986) (citing Longstaff
v. INS, 716 F.2d 1439 (5th Cir. 1983); Matter
of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) (fraud); Lai
Haw Wong v. INS, 474 F.2d 739 (9th Cir. 1973) (no
fraud).
3. Has
the respondent been a LPR for 5 years?
a. Date
acquired LPR status:
b. The
5 years is not cut off by service of the NTA or conviction. Section
240A(d)(1) of the Act.
c. Section
240A(d)(2) regarding treatment of breaks in excess of 90 days or 180
days in the aggregate does not apply to cancellation of removal for
LPRs under section 240A(a). It specifically refers to subsections
(b)(1) and (b)(2) which involve cancellation for non-LPRs.
d. 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 section 240A(a)(1) of the Immigration and Nationality Act. Matter
of Escobar, 24 I&N Dec. 231 (BIA 2007).
4. Are
there any absences from the United States that would signal the respondent
may have abandoned LPR status or reverted to commuter status?
a. The
DHS bears the ultimate burden of showing abandonment of lawful permanent
resident status. Matter of
Huang, 19 I&N Dec. 749 (BIA 1988); Matter
of Kane, 15 I&N Dec. 258 (BIA 1975).
5. Has
the respondent been granted suspension of deportation, 212(c) relief,
or cancellation of removal previously?
a. Section
240A(c)(6) of the Act states that: “An alien whose removal has
previously been cancelled under this section or whose deportation
was suspended under section 244(a) or who has been granted relief
under section 212(c), as such sections were in effect before the date
of the enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996.”
b. In
Garcia-Jimenez v. Gonzales,
472 F.3d 679 (9th Cir. 2007), the Court of Appeals for the Ninth Circuit
held that INA § 240A(c)(6) makes clear that an alien who has
received 212(c) relief at any time bars 240A(a) cancellation of removal
and rejects the argument that these two forms of relief may be afforded
simultaneously.
6. Has
the respondent resided in the United States continuously for 7 years
after having been admitted in any status?
a. What
terminates continuous residence/presence?
i. See
section 240A(d)(1). Service of the Notice to Appear or commission
of a criminal offense referred to in section 212(a)(2) of the Act,
whichever is earliest. See
Matter of Campos-Torres,
22 I&N Dec. 1289 (BIA 2001).
ii. The
full section reads: 240A(d)(1): “For purposes of this section,
any period of continuous residence or continuous physical presence
in the United States shall be deemed to end (A) except in the case
of an alien who applies for cancellation of removal under subsection
(b)(2), when the alien is served a notice to appear under section
239(a), or (B) when the alien has committed an offense referred to
in section 212(a)(2) that renders the alien inadmissible under section
212(a)(2) or removable from the United States under section 237(a)(2)
or 237(a)(4), whichever is earliest.”
b. What
was the date of respondent’s
first lawful admission
into the United States?
i. Matter
of Robles, 24 I&N Dec. 22 (BIA 2006) (continuous residence
stops on the date offense committed, not date of conviction; continuous
residence stops on date offense is committed even if committed prior
to Illegal Immigration Reform and Immigrant Responsibility Act of
1996 - April 1, 1997), Matter
of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.
ii. Matter
of Blancas, 23 I&N Dec. 458 (BIA 2002): The Board stated
that INA 240A(a)(2) requires only seven years continuous residence
after being admitted in any
status. Here the respondent was admitted in 1986 as a visitor with
a border crossing card and the NTA was served more than seven years
later.
c. In
certain circuits, the time the respondent lived in the household of
a LPR parent while the respondent was an un-emancipated minor (under
18) may be imputed to the respondent for purposes of the 7 years.
See Cuevas-Gaspar
v. Gonzales,
430 F.3d 1013 (9th Cir. 2005).
7. Was
respondent’s 7 years cut off by service of the NTA?
a. The
date the Notice to Appear is served counts toward the period of continuous
presence. See Lagandaon
v. Ashcroft, 383 F.3d 983, 988 (9th Cir. 2004) (rejecting
the government’s contention that the period ends the day preceding
the date the Notice to Appear is served; The time of day is irrelevant).
8. Did
the respondent have 7 years of continuous residence since his first
lawful admission before he committed an offense referred to in section
212(a)(2) that renders the alien inadmissible to the United States
under section 212(a)(2) or removable from the United States under
section 237(a)(2) or 237(a)(4)?
i. Dates
offenses committed:
ii. Matter
of Robles, 24 I&N Dec. 22 (BIA 2006) (continuous residence
stops on the date offense committed, not date of conviction; continuous
residence stops on date offense is committed even if committed prior
to Illegal Immigration Reform and Immigrant Responsibility Act of
1996 - April 1, 1997). Matter
of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.
iii. Matter
of Jurado, 24 I&N
Dec. 29 (BIA 2006) (An alien need not be charged and found inadmissible
or removable on a ground specified in section 240A(d)(1)(B) of the
Immigration and Nationality Act in order for the alleged criminal
conduct to terminate the alien’s continuous residence in this
country).
iv. Are
the offenses “referred to” in section 212(a)(2)?
(1) Matter
of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (pursuant
to section 240A(d)(1) of the Act an offense must be one “referred
to in section 212(a)(2)” of the Act to terminate the period
of continuous residence or continuous physical presence required for
cancellation of removal; A firearms offense that renders an alien
removable under section 237(a)(2)(C) of the Act is not one “referred
to in section 212(a)(2)” and thus does not stop the further
accrual of continuous residence or continuous physical presence for
purposes of establishing eligibility for cancellation of removal).
(2) Matter
of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003) (respondent,
who was convicted of two misdemeanor crimes involving moral turpitude,
was not precluded by the provisions of section 240A(d)(1)(B) from
establishing the requisite 7 years of continuous residence for cancellation
of removal under section 240A(a)(2), because his first crime, which
qualifies as a petty offense, did not render him inadmissible, and
he had accrued the requisite 7 years of continuous residence before
the second offense was committed).
v. Be
aware of Circuit peculiarities:
(1) In
Sinotes-Cruz v. Gonzales,
468 F.3d 1190 (9th Cir. 2006) (the Court found that the 240A(d)(1)(B)
stop-time rule should not be applied to a conviction obtained pursuant
to a guilty plea for a crime that did not render an alien deportable
at the time of the plea. The Court notes that the Third Circuit has
reached a contrary result on the retroactivity of the criminal offense
cutoff, but without analysis, in Hernandez
v. Gonzales, 437 F.3d 341 (3d Cir. 2006)).
9. Did
the respondent serve in active duty?
a. The
requirement of continuous residence shall not apply to an alien who
has served for a minimum period of 24 months in an active-duty status
in the Armed Forces of the United States and, if separated from such
service, was separated under honorable conditions, and at the time
of the alien’s enlistment or induction was in the United States.
Section 240A(d)(3) of the Act.
10. If
there is no issue as to statutory eligibility you could simply sum
up as follows: “The respondent has been a lawful permanent resident
for more than 5 years, and he/she also has resided in the United States
continuously for seven years after having been admitted in any status.
Although the respondent has been convicted, his/her conviction is
not for an aggravated felony. The issue in the discretionary balance
of factors within the framework of Matter
of C-V-T-, supra.
The
balance of factors:
The
following categories may help you organize your notes and thoughts
regarding the positive and negative factors in the case in order to
for you to clearly articulate in your oral decision the weight you
accord the factors and the reasons why you reach your conclusion under
the Matter of C-V-T-
balance.
NEGATIVE
FACTORS
Arrest/
conviction record:
How
many arrests over what period of time?:
How
old was the respondent was he/she committed the offenses?:
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 the adverse behavior)?:
Was
respondent honest with this court? Did he/she attempt to discount
or hide his/her criminal history? Can she simply not remember? Why
can she not remember? What does the respondent’s testimony signify?:
Were
any of the offenses violent?:
Injury
to victim?:
Did
any involve the trafficking of drugs?:
POSITIVE
FACTORS
Current
age:
Age
first came to US:
Number
of years total in 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:
Pays
taxes / files tax returns:
Medical
Concerns:
Register
for selective service / service in armed forces:
Assets:
Volunteer
activities:
Letters
of support in the record:
Reasons
for the criminal conduct?: (Any mitigating circumstances)
Is
there anything in particular which would show a change?:
-
evidence respondent appreciates seriousness of conduct
-
evidence respondent appreciates consequences of actions
-
impact of time spent in Immigration Custody
-
demeanor of respondent
-
evidence respondent accepts responsibility for his own actions
-
attendance at classes (domestic violence, anger management, drug program,
AA, NA)
-
time between last conviction and the NTA (recency of criminal conduct):
-
evidence respondent realizes that this would be last chance
The
key to a successful decision is taking the information you have gathered
and then clearly explaining why you reach the conclusion you do. How
do the relevant facts you have gathered combine within the confines
of the law to lead you to the conclusion that the respondent does
or does not deserve a second chance to remain in the United States?
It is essential to give a clear finding on the credibility of the
witness. Articulate why you do or do not believe the testimony of
the witness and what weight you believe the testimony should be given.
Each case will be different. While there are sample decisions you
can follow, any sample will become effective for you only when you
work with it to make it your own. There is no universal standard language
you can recite when balancing the factors, and your decision will
be wooden and less effective if you try to recite standard language
in explaining your conclusion. With experience you will see recurring
themes, and at times you will see unusual facts and circumstances
you will never see again. It is best to know your record, listen closely
to the testimony, take good notes, and then articulate to the best
of your ability why you reach the decision you do.
ORDERS
ORDER:
The respondent’s application for cancellation of removal under
section 240A(a) of the Act is granted / denied.
(If
denied): FURTHER ORDER: It is ordered that the respondent be removed
from the United States to ________ on the charge(s) contained in the
Notice to Appear.
APPEAL
RIGHTS: Both parties have the right to appeal the decision in this
case. Any appeal is due in the hands of the Board of Immigration Appeals
on or before 30 calendar days from the date of service of this decision.
_____________________________
Immigration Judge
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