Cancellation of Removal BIA Decisions

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CANCELLATION OF REMOVAL
(NON-LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000)

Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an alien may not accrue the requisite 7 years of continuous physical presence for suspension of deportation after the service of the Order to Show Cause and Notice of Hearing (Form I-221), as service of the Order to Show Cause ends continuous physical presence.

Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), 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.

Matter of Romalez, 23 I&N Dec. 423 (BIA 2002)

For purposes of determining eligibility for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of the institution of deportation or removal proceedings. 

Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004)

Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.

Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation of removal filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.

Matter of Avilez, 23 I&N Dec. 799 (BIA 2005)

(1) Where an alien departed the United States for a period less than that specified in section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229b(d)(2)(2000), and unsuccessfully attempted reentry at a land border port of entry before actually reentering, physical presence continued to accrue for purposes of cancellation of removal under section 240A(b)(1)(A) unless, during that attempted reentry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.

(2) The respondent’s 2-week absence from the United States did not break her continuous physical presence where she was refused admission by an immigration official at a port of entry, returned to Mexico without any threat of the institution of exclusion proceedings, and subsequently reentered without inspection.

Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006)

The provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), must demonstrate statutory eligibility for that relief prior to the service of a notice to appear applies only to the continuous physical presence requirement and has no bearing on the issues of qualifying relatives, hardship, or good moral character.

 

Criminal Convictions

Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2002)

(1) An alien who has been convicted of a crime involving moral turpitude that falls withinthe “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration andNationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation ofremoval under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV1998), because he “has not been convicted of an offense under section 212(a)(2)” of theAct.

(2) An alien who has committed a crime involving moral turpitude that falls within the“petty offense” exception is not ineligible for cancellation of removal under section240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offenderfrom establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C.§ 1101(f)(3) (Supp. IV 1998).

(3) An alien who has committed more than one petty offense is not ineligible for the“petty offense” exception if “only one crime” is a crime involving moral turpitude.

(4) The respondent, who was convicted of a crime involving moral turpitude that qualifiesas a petty offense, was not rendered ineligible for cancellation of removal under section240A(b)(1) of Act by either his conviction or his commission of another offense that is nota crime involving moral turpitude.

Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007)

An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E) (2000), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2000).

 

Exceptional and Extremely Unusual Hardship

Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)

(1) To establish “exceptional and extremely unusual hardship,” an applicant for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. V 1999), must demonstrate that his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be “unconscionable.”

(2) Although many of the factors that were considered in assessing “extreme hardship” for suspension of deportation should also be considered in evaluating “exceptional and extremely unusual hardship,” an applicant for cancellation of removal must demonstrate hardship beyond that which has historically been required in suspension of deportation cases involving the “extreme hardship” standard.

(3) In establishing eligibility for cancellation of removal, only hardship to qualifying relatives, not to the applicant himself or herself, may be considered, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative.

Matter of Andazola, 23 I&N Dec. 319 (BIA 2002)

(1) The respondent, an unmarried mother, did not establish eligibility for cancellation of removal under

section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to demonstrate that her 6- and 11-year-old United States citizen children will suffer exceptional and extremely unusual hardship upon her removal to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s children include the poor economic conditions and diminished educational opportunities in Mexico and the fact that the respondent is unmarried and has no family in that country to assist in their adjustment upon her return.

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)

(1) The respondent, a single mother who has no immediate family remaining in Mexico, provides the sole support for her six children, and has limited financial resources, established eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated that her United States citizen children, who are 12, 11, 8, and 5 years old, will suffer exceptional and extremely unusual hardship upon her removal to her native country.

(2) The factors considered in assessing the hardship to the respondent's children include the heavy burden imposed on the respondent to provide the sole financial and familial support for her six children if she is deported to Mexico, the lack of any family in her native country, the children's unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.

 

Good Moral Character

Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005)

(1) Because an application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229b(b)(1) (2000), is a continuing one for purposes of evaluating an alien’s moral character, the period during which good moral character must be established ends with the entry of a final administrative decision by the Immigration Judge or the Board of Immigration Appeals.

(2) To establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, an alien must show good moral character for a period of 10 years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board.

 

CANCELLATION OF REMOVAL (SPECIAL RULE)

 

Continuous Physical Presence

Matter of Garcia, 24 I&N Dec. 179 (BIA 2007)

An application for special rule cancellation of removal is a continuing one, so an applicant can continue to accrue physical presence until the issuance of a final administrative decision. Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), reaffirmed; Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), followed in jurisdiction only.

 

 

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