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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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