Statutory Eligibility.
To be eligible for cancellation of removal under INA § 240A(b), the applicant must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during the 10-year period immediately preceding the date of application for relief; (3) has not been convicted of an offense under section § 212(a)(2) (criminal and related grounds), 237(a)(2)(criminal offenses), or 237(a)(3) (failure to register or falsification of documents) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States an alien admitted for lawful permanent residence. A stepchild who meets the definition of a “child” under INA § 101(b)(1)(B) [8 U.S.C.A. § 1101(b)(1)(B)] is a qualifying relative for purposes of demonstrating the hardship requirement. See Matter of Portillo-Gutierrez, 25 I. & N. Dec. 148, 2009 WL 4281390 (B.I.A. 2009) See INA § 240A(b)(1); and (5) he merits a favorable exercise of discretion.
There is a 4,000 annual cap on the determination of most cancellation of removal cases. INA § 240A(e), 8 U.S.C. § 1229b(e); 8 C.F.R. §§ 240.21(a) and 1240.21(a).
Cancellation is not available:
- To anyone whose removal was previously cancelled or whose deportation was suspended under INA § 244(a), or who was granted § 212(c) relief.
- For 10 years to a person who was ordered removed after failing to appear at a removal hearing, unless there were exceptional circumstances for the failure to appear.
- For 10 years to someone who failed to depart under a grant of voluntary departure under INA § 240B.
- To aliens who are inadmissible under INA § 212(a)(3) or deportable under INA § 237(a)(4) (security, terrorism, and related grounds of inadmissibility and deportability).
- To aliens who entered as crewmen.
- To some exchange visitors.
- To aliens who have persecuted others on the basis of race, religion, nationality, membership in a particular social group, or political opinion. INA § 240A(c), 8 U.S.C. § 1229b(c).
1. Continuous physical presence
Pursuant to INA § 240A(d)(1), continuous physical presence ends either when the alien is served with a Notice to Appear (“NTA”) (Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004)), or when Respondent has committed (Matter of Perez, 22 I&N Dec. 689 (BIA 1999)) an offense referred to in INA § 212(a)(2) (Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)) that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)
Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Instead, continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.
An immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).
An applicant must show that he has been continuously physically present in the United States for a period of 10 years immediately preceding the issuance of the notice to appear or the commission of an offense that terminates the accrual of the 10-year period. Where a noncitizen is outside of the United States for any one period of 90 days or has departed the United States for any periods in total exceeding 180 days, he cannot establish the required continuous presence. Where noncitizen has been out of the United States for any period of time, counsel should carefully count each period in order to ensure that they do not result in a finding of insufficient continuous physical presence either independently or cumulatively.
Continued physical presence may continue to accrue even where a noncitizen departs the United States and returns without inspection. However, the departure must not have been as a result of a threat of deportation or removal proceedings. The Board has held that continued physical presence may be interrupted with the detention and departure of a noncitizen from the U.S. made under the “threat of deportation.” In another case, however, the Board has held that a two-week absence from the United States did not break the noncitizen’s continuous presence in the United States where she was refused admission by an immigration official, returned to Mexico with no threat of exclusion proceedings, and subsequently reentered the United States without inspection.
- In re Romalez-Alcaide, 23 I. & N. Dec. 423, 2002 WL 1189034 (B.I.A. 2002) (noncitizen’s two brief departures under threat of deportation terminated continuous presence).
- In re Avilez-Nava, 23 I. & N. Dec. 799, 2005 WL 1926631 (B.I.A. 2005). See also Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) (several attempts to reenter the United States without inspection and subsequent conviction for illegal entry did not terminate continuous presence); Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005) (noncitizen’s voluntary return by the Border Patrol after two attempts to reenter did not break continuous presence); Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005), opinion modified, (May 25, 2005) (noncitizen who returned to Mexico for two weeks to visit sick relative did not break continuous presence by being turned around at border upon attempted reentry); Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005) (noncitizen who returned to Mexico after brother’s death and later held for short periods of time at border and returned on four separate occasions did not break continuous presence).
2. Good Moral Character and No Disqualifying Criminal Convictions
The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-798 (BIA 2005).
An alien need not be charged and found inadmissible or removable on a ground specified in INA § 240A(d)(1)(B), in order for the alleged criminal conduct to terminate the alien’s continuous physical presence in this country. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006).
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 INA § 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). 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. Id.
Similarly, an alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act. Id. An alien whose conviction precedes the effective date of INA § 237(a)(2)(E), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). In Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776, 2009 WL 995578 (B.I.A. 2009), the Board held that the conviction for an offense which would fall within the petty-offense exception under INA § 212(a)(2)(A)(ii)(II) [8 U.S.C.A. § 1182(a)(2)(A)(ii)(II)] still rendered the noncitizen ineligible for 10-year cancellation of removal as it was an offense listed under an enumerated ground of deportability at INA § 237(a)(2) [8 U.S.C.A. § 1227(a)(2)]. The Board failed to consider its prior precedent under In re Deanda-Romo, 23 I. & N. Dec. 597, 2003 WL 21043272 (B.I.A. 2003), and Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549, 2008 WL 2540609 (B.I.A. 2008).
3. Exceptionally and Extremely unusual Hardship
To establish “exceptional and extremely unusual hardship,” the applicant must show that his or her qualifying relative would suffer hardship substantially beyond that which would ordinarily result from an alien’s removal. See Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001) (finding that the qualifying relatives were healthy and would suffer hardship that was not substantially different from that expected from the removal of any alien with close family members in the United States). Yet, the alien need not show that such hardship would be unconscionable. Id. at 61. Only hardship to the alien’s qualifying relative is considered. INA Section 240A(b)(1)(D). However, hardship to the alien may be evaluated insofar as it affects his or her qualifying spouse, parent, or child. Matter of Monreal, 23 I&N Dec. at 63.
Factors to be considered in determining the level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. Matter of Monreal, 23 I&N Dec. at 63. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal are also relevant factors, but will generally be insufficient, in and of themselves, to support a finding of exceptional and extremely unusual hardship. Matter of Andazola-Rivas, 23 I&N Dec. 319, 323-324 (BIA 2002); Matter of Monreal, 23 I&N Dec. at 63;. However, all hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that is exceptional and extremely unusual. Matter of Monreal, 23 I&N Dec. at 64. See generally Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001) (evaluating the hardship standard under the former suspension of deportation statute). For example, the Board has determined that diminished educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.” Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002).
The Board has issued several decisions addressing the issue of
exceptional and extremely unusual hardship. In In re Monreal-Aguinaga,
the Board identified factors to address and consider in determining
whether exceptional and extremely unusual hardship has been established
for purposes of cancellation of removal. These factors are:
• age of noncitizen at the time of entry and when the application for
relief is filed;
• family ties in the U.S. and abroad;
• length of U.S. residence;
• health of applicant and qualifying relatives;
• political and economic conditions in the home country;
• possibility of other means of adjustment;
• community ties; and
• immigration history.
In preparing a client’s case, counsel should carefully review the
Monreal decision along with two other published decisions on this
issue—In re Andazola-Rivas and In re Recinas. In Monreal, the Board
held that the noncitizen’s 20 years of U.S. residence after entering at
age 14, two school-aged U.S. citizen children, and lawful permanent
resident parents did not qualify him for cancellation of removal as he
failed to prove that his children and parents would suffer exceptional
and extremely unusual hardship. The Board did note that the hardship
standard should not be interpreted as an unconscionable standard.
This form of cancellation of removal is extremely fact specific and can
be quite time-intensive for case preparation due to the 10 years of
physical presence and level of hardship that must be shown. It is
important to note that in In re Monreal-Aguinaga, the noncitizen did not
provide evidence showing his parents’ and children’s special needs, if
any, that would arise as a result of his removal. Counsel should
anticipate the amount of time required to prepare the application,
supporting documentation, and oral testimony of the noncitizen and
witnesses.
In Andazola and Recinas, the noncitizen applicants were both single
mothers with children. Despite similarities in the cases, the Board
found that the noncitizen in Recinas met the hardship standard, while
the noncitizen in Andazola did not. In both decisions, the Board cited
to the appropriateness of the hardship standard that it had established
in In re Monreal-Aguinaga. Some of the criteria that the Board
considered in reaching a decision to grant relief in Recinas included
the following:
• the U.S. citizen children only knew life in America and could not
speak Spanish well;
• the U.S. citizen children were completely dependent emotionally and
economically on their mother because their parents were divorced and
they had no contact with their father;
• the applicant’s ability to care for her six children if she was
removed would be substantially hindered because her LPR mother helped
her to care for her children and she had no family in Mexico;
• the applicant had a strong family support system in the U.S., which
provided both financial and emotional support; and
• the applicant’s possibilities of immigrating back to the U.S. were
unrealistic due to the backlog of visa availability for Mexican
citizens.
In light of the Board decisions, the following considerations are a starting point for preparing evidence related to exceptional and extremely unusual hardship:
• Physical and mental health of qualifying relatives:
• availability of medical care, including access to physicians, specialists (if needed), and medications;
• ability to access government-funded medical care, particularly if the noncitizen has not paid into the sys-tem (having worked outside of the country designated for removal) and the children are U.S. citizens or citizens of a third country;
• Cost of medical care and medications in the home country; and
• if the noncitizen or his qualifying relatives have received mental health counseling in the U.S.:
• the current treatment being provided and the prognosis; and
• the availability and cost of the same or similar mental health care in the country designated for removal.
• Marital status of the noncitizen.
• If the noncitizen has any children:
• financial support by the non-custodial parent(s) of the children;
• exercise of visitation rights by the non-custodial parent(s) of the children;
• whether any court order has been entered that restricts the applicant from taking the children abroad to live with him (i.e., joint legal custody, joint physical custody, visitation schedule for non-custodial parent);
• history of the relationship between the noncitizen and the non-custodial parent(s) and whether it would be realistic that the children could travel back and forth between the U.S. and the country designated for removal to visit each parent.
• Ownership of property in the U.S.
• Family ties in the U.S. and abroad:
• If the noncitizen has children, what is the relationship between the children and other family members in the U.S.?
• How often do the children see their other family members? (i.e., grandparents, aunts, uncles, and cousins)
• Do the other family members help to provide child care or other assistance related to the children?
• If the noncitizen has family members abroad:
• Who are the family members?
• When was the last time that the noncitizen saw them or spoke with them?
• Would they be willing to assist the noncitizen and his qualifying family members in the country designated for removal? Why or why not?
• Community ties of the noncitizen and the qualifying family members in the U.S.
• Conditions in the country of removal and how they will affect the qualifying relative(s):
• Language:
• Does the noncitizen speak the language of the country designated for removal?
• Do any of his qualifying family members speak the language?
• Education:
• Does a qualifying relative child have special educational needs that cannot be addressed in the country of removal?
• What level of education is available to children in the area to which the noncitizen would return?
• Is the education for children publicly funded or private?
• If publicly funded:
• In what language(s) are children taught? Are there any programs for students who do not speak the language in which students are taught?
• Are there any religious, nationality, or citizenship restrictions or requirements to access education?
• Would the noncitizen able to afford any books, uniforms, or other expenses required?
• If private education is the only option for the noncitizen’s child, where is the educational facility located?
• What are the costs of a private education?
• Would the noncitizen able to afford the tuition and any books, uniforms, or other expenses required?
• If the noncitizen’s family member is involved in extracurricular activities (i.e., competitive male or female sports, band, orchestra, choir, chess team, etc.), are the same or similar extracurricular activities available in the country designated for removal?
• What is the highest level of education available?
• Economic:
• Does the noncitizen own property in the country designated for removal?
• If not, where would the noncitizen and any qualifying family members live?
• Are there any residency requirements (i.e., propiska system in Russia)? If so, would the noncitizen and any qualifying family members be able to obtain the necessary documentation to obtain a place to live?
• What is the noncitizen’s history of employment and what are his job skills?
• Could the noncitizen obtain employment in the country designated for removal?
• Could the noncitizen earn sufficient money to support himself and his family in the country designated for removal?
• Does the noncitizen have the resources and ability to start a business in the country designated for removal?
• What is the qualifying family member’s history of employment and what are his job skills?
• Could the qualifying family member obtain employment in the country designated for removal?
• Political:
• How will the “Americanization” of the qualifying relatives affect their ability to integrate into the local community of the country of removal?
• If the qualifying family members are U.S. citizens, are there any risks particular to U.S. citizens?
• Identify the risks to the U.S.-citizen family members, including risk of kidnapping or abduction, extortion, denial of medical and legal services, and homicide of U.S. citizens.
• Review the most recent Department of State travel advisories for U.S. citizens as well as Department of State country reports on human rights practices for the particular country.
• Ascertain what services the Department of State can actually provide to a U.S. citizen who relocates to the foreign country. For example, where a Department of State travel advisory states that U.S. citizens have been kidnapped and killed and the U.S. government has been unable to intercede for their protection, a strong showing of harm to the U.S.-citizen family member can be made.
• Arguments can be successfully made that neither the foreign government nor the Department of State will be able to provide basic protections or assure fundamental human rights to U.S. citizens who may relocate to the foreign country with their noncitizen family member.
• If the qualifying family members are of a different ethnic background or were born in a country other than the U.S., will they face any particular risks if they were to attempt to relocate with the noncitizen to the country designated for removal?
• If any of the qualifying family members are female, would they run the risk of physical and mental harm based on their gender (i.e., female genital mutilation, arrests, or other harm due to noncompliance with customary dress or occupation)?
• If the noncitizen left the country originally due to fear of persecution or torture, have conditions changed such that he would no longer fear returning?
• If not, counsel should also consider filing an application for asylum, withholding and relief under the Convention Against Torture for the noncitizen.
• Would the qualifying family members face any risk of harm based on their religious beliefs or practices?
In preparing the hardship portion of his case, counsel should present
testimony—either live testimony during the hearing or detailed
affidavits—of therapists, psychologists, and treating physicians to
confirm the hardship which may be faced by qualifying relative(s) if the
applicant is ordered removed. Noncitizens and their families with
limited resources may be able to obtain a low-cost evaluation or work
out a payment plan with the evaluator.
- In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 2001 WL 534295 (B.I.A. 2001).
- In re Andazola-Rivas, 23 I. & N. Dec. 319, 2002 WL 1001048 (B.I.A. 2002);
- In re Gonzalez Recinas, 23 I. & N. Dec. 467, 2002 WL 31173154 (B.I.A. 2002)
________________________________________
REAL ID – 240A(b)(1)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
(LOCATION)
______________________________________________________________
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
[Address]
IN THE REMOVAL CASE OF
CASE NO.
[LAST NAME, First Name]
Respondent.
____________________________
CHARGE(s): Section 212(a)(6)(A)(i) of the Immigration and Nationality Act – entry without inspection.
APPLICATIONS: Cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act; voluntary departure under section 240B(b) of the Immigration and Nationality Act.
FOR THE RESPONDENT:
FOR THE UNITED STATES:
FINDINGS, DECISION, AND ORDERS
I. Introduction and Procedural Summary
The respondent, [Name] (“Respondent”), is a ____ -year-old [single/married/separated/ widowed] [male/female], who is a native [and/or] citizen of ___________. The Department of Homeland Security (“DHS”), commenced these Removal Proceedings against Respondent on ____________, charging [him/her] with being removable pursuant to the above-captioned section of the Immigration and Nationality Act (hereinafter “INA”). Respondent has conceded removability on the grounds that [he/she] entered the United States without inspection through or near _______________ on or around the date of _________________ . Removability is therefore established by clear and convincing evidence pursuant to INA § 240(c)(3).
Respondent seeks relief from removal in the form of cancellation of removal under INA § 240A(b) and, in the alternative, voluntary departure under INA § 240B(b). I [grant/deny] this application. In addition, I [grant/deny] Respondent’s application for voluntary departure.
II. Application for Cancellation of Removal Under INA § 240A(b)
A. Statutory Eligibility.
To be eligible for cancellation of removal under INA § 240A(b), Respondent must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense under section § 212(a)(2), 237(a)(2), or 237(a)(3) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States an alien admitted for lawful permanent residence. See INA § 240A(b)(1).
1. Continuous physical presence
Rule
Pursuant to INA § 240A(d)(1), continuous physical presence ends either when the alien is served with a Notice to Appear (“NTA”) (Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004)), or when Respondent has committed (Matter of Perez, 22 I&N Dec. 689 (BIA 1999)) an offense referred to in INA § 212(a)(2) (Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)) that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)(4).
Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Instead, continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.
An immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjectedto any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).
Evidence Presented
In support of [his/her] application, Respondent submitted the following to corroborate [his/her] continuous physical presence in the United States.
[Personal documents]
[Testimony]
[Affidavits]
[Marriage/birth certificates]
[Employment records]
Credibility and Findings
[SAMPLES]
The Court finds that Respondent has failed to establish continuous physical presence for the 10 years immediately before the service of the charging document. Respondent’s continuous physical presence was cut off by. . . .
The Court is satisfied that Respondent’s evidence establishes his continuous physical presence for the 10 years immediately before the service of the charging document.
2. Good Moral Character and No Disqualifying Criminal Convictions
Rule
The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 797-798 (BIA 2005).
An alien need not be charged and found inadmissible or removable on a ground specified in INA § 240A(d)(1)(B), in order for the alleged criminal conduct to terminate the alien’s continuous physical presence in this country. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006)
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 INA § 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). 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. Id.
Similarly, an alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act. Id. An alien whose conviction precedes the effective date of INA § 237(a)(2)(E), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA § 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).
Evidence Presented
Evidence of Respondent’s criminal history was presented through [record of judgment and conviction/rap sheet/other credible and relevant evidence]. It was shown that Respondent [was convicted of ___________ / has no convictions]. In addition, Respondent presented other evidence of his good moral character through [affidavits/testimony].
[CONSIDERATIONS]
1. Respondent’s Convictions
a. INA § 101(f) bar
i. Expungements or vacated sentences
ii. Time served (if more than 180 days)
iii. Petty offense exception. See Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003).
b. INA § 240A(b)(1)(C) bar: convicted of an offense under 212(a)(2); 237(a)(2); or 237(a)(3)
i. Crime involving moral turpitude
ii. Violating law relating to a controlled substance defined by CSA
iii. Aggravated felony
iv. Multiple convictions and aggregate sentences are more than 5 years
v. Illicit trafficker in any controlled substance defined by CSA
vi. Prostitution
vii. High speed flight (18 U.S.C. § 758)
viii. Domestic violence; stalking; treason and sedition, etc.
ix. Espionage; sabotage; treason and sedition, etc.
x. Document fraud
xi. Falsely claiming citizenship
2. Income tax fraud (claimed non-existent exemption)
3. False testimony (oral and under oath)
4. Immigration history
a. Prior Deport/Voluntary Departure/Voluntary Return
b. Use of a smuggler
c. Entered without inspection
d. Abused non-immigrant visas
5. Driving without a valid license or car insurance
6. Use of welfare or government benefits (food stamps/AFDC/WIC/MediCal etc.)
Credibility and Findings
[SAMPLE]
While I would in no way condone or diminish the seriousness of Respondent’s 2002 arrest for driving under the influence of alcohol, I nonetheless observe that this arrest is the only criminal matter in Respondent’s history and that he received a suspended sentence for it. I observe further that Respondent submitted a number of letters from previous employers and neighbors who testified to Respondent’s dependability in the work place, respectful attitude towards others, and his commitment to his wife and children. I will therefore accept Respondent’s representation that this arrest was an isolated incident and find that he possesses good moral character for purposes of this application for relief. Relatedly, there is nothing in the record to suggest that Respondent has been convicted of a crime that would statutorily bar him from this relief.
3. Exceptional and Extremely Unusual Hardship
Rule
As in cases involving suspension of deportation, the elements required to establish “exceptional and extremely unusual hardship” are dependent upon the facts and circumstances peculiar to each case. Matter of Monreal, 23 I&N Dec. 56, 63 (BIA 2001); Matter of Kao, 23 I&N Dec. 45 (BIA 2001). All relevant factors, though not “exceptional or extremely unusual” when considered alone, must be considered in the aggregate in determining whether “exceptional and extremely unusual hardship” exists. Matter of Monreal, supra at 64. However, the hardship exists in cancellation of removal cases must relate to the qualified relative. Therefore, any hardship identified which relates to the Respondent will not be considered unless it also relates to or affects the hardship of the qualified relative. Matter of Monreal, supra at 63.
The proper hardship standard is a heightened, more restrictive, and significantly more burdensome standard than that of the “extreme hardship” standard in suspension of deportation cases. See Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, supra at 62. The hardship presented must be something “substantially beyond” the hardships ordinarily associated with a person’s ordered departure from the United States. See Matter of Monreal, supra at 60. By design, the hardship standard is a high threshold. See Matter of Andazola, supra at 324. Nonetheless, the hardship standard is not so restrictive that only a handful of applicants will ever qualify for relief. See Matter of Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002). It stands to reason, then, that relevant factors, though neither exceptional nor extremely unusual in isolation, may be considered in the aggregate insofar as their impact upon the qualifying relative(s). See id. at 472.
Evidence Presented
In support of Respondent’s argument that [his/her] [U.S. citizen/lawful permanent resident] [spouse/parent(s)/child(ren)] would suffer exceptional and extremely unusual hardship if [he/she] is removed, Respondent has presented [testimony/affidavits/other credible and relevant evidence] as follows:___________________________________________________.
[CONSIDERATIONS]
1. Qualified Relative(s) (“QR”)
a. Immigration statue/where residing
b. Age and marital status
c. Financial status and closeness to QR(s)
d. Work/business
e. Ages of QR(s)
f. Health/illnesses of QR
i. Medical reports – diagnosis and prognosis
ii. Treatment received/anticipating
iii. Mediation
iv. Cost of medical treatment
v. Medical treatment available in home country?
2. Family in home country
a. Relationship and financial status
b. Ability and willingness to assist in readjustment
c. Employment/education
d. Age and marital status
3. Employment
a. In United States
i. Retired?
ii. Line of work – skills acquired; skills transferable?
iii. Earnings and benefits (insurance/bonus/retirement)
b. In home country
i. Length of employment
ii. Line of work
iii. Job opportunities
iv. Political conditions
4. How many years of residence in the United States?
5. Effect on QR if Respondent deported
a. If QR remains in the U.S.–
i. Affidavit required if the QR who remains is a child. Matter of Ige, 20 I. & N. Dec. 880, 885 (BIA 1994).
ii. Emotional
iii. Opportunities to visit with Respondent
iv. Financial burdens if QR dependent on Respondent
ii Degree of dependence (e.g., other supporting family members, public assistance, ability/possibility to become self-sufficient)
ii Loss of insurance covering QR.
b. If QR leaves the country with Respondent–
i. Home country conditions for the QR (e.g., political, economical, medical, educational)
ii. Family in home country (financial and emotional support during the period of readjustment)
iii. Assets and business (possible loss)
iv. Possibility of QR losing LPR status
v. Community Services/Ties
ii What community services
ii How much of these services will suffer without QR’s services?
ii Documentary evidenc
Credibility and Findings
(Analysis of balancing the favorable and adverse factors for a finding of exceptional and extremely unusual hardship.)
[SAMPLE]
I have weighed all the evidence of record both individually and cumulatively on the issue of “exceptional and extremely unusual” hardship and I do not find that the hardship to any one of Respondent’s qualifying relatives would rise above the natural consequence of removal to sufficiently satisfy the high standard of hardship required. See Matter of Monreal, 23 I. & N. Dec. 56; cf. Dulane v. INS, 46 F 3d 988, 995 (10th Cir. 1995)
B. Discretionary Consideratio
Once statutory eligibility is established, cancellation may be granted by the Court as an exercise of discretion. See INA § 240A(b)(1).
[SAMPLE]
Because Respondent has not established “exceptional and extremely unusual hardship” to his/her Qualified Relative, it is unnecessary for this court to give any discretionary consideration in this application
III. Voluntary Departure
To establish eligibility, Respondent must prove that [he/she] (1) has been physically present in the United States for at least one year immediately preceding service of the NTA; (2) is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) is not removable under INA § 237(a)(2)(A)(iii) (aggravated felony) or INA § 237(a)(4) (security and related grounds); and (4) has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. See INA § 240B(b)(1).
[SAMPLES]
Respondent has requested voluntary departure as alternate relief. Because Respondent is denied cancellation of removal due to a lack of good moral character, this will also bar Respondent from voluntary departure. I will therefore deny Respondent’s application for voluntary departure.
Respondent has requested voluntary departure as alternate relief and has established eligibility for that relief. The Department of Homeland Security does not oppose the grant of this relief. I will therefore grant Respondent sixty days voluntary departure, the maximum amount of time permitted at the conclusion of removal proceedings. Footnote
See INA § 240B(b)(2). Respondents departure date is hereby set to be no later than ______________________.
IV. Orders
IT IS HEREBY ORDERED that Respondent’s application for cancellation of removal under INA § 240A(b) be [DENIED/GRANTED].
IT IS FURTHER ORDERED that Respondent’s request for voluntary departure under INA § 240B(b) be [DENIED/GRANTED and Respondent is permitted to voluntarily depart in lieu of removal, without expense to the government, on or before sixty (60) days from the date of this order, or any extension thereof as may be granted by the Department of Homeland Security and any under whatever conditions the Department of Homeland Security may direct as part of such extension].
IT IS FURTHER ORDERED that Respondent shall post a voluntary departure bond to the Department of Homeland Security in the amount of $500 within 5 business days.
IT IS FURTHER ORDERED If any of the above ordered conditions are not met, the above order granting voluntary departure shall be withdrawn without further notice or proceedings, and the following order shall become effective the following day: The Respondent shall be removed to _________________ on the charge specified by the NTA.
_____________________________
, Judge
__________________, 2014
Appeal Date: _______________
File No.: A_____________________
In the Matter of
____________________________
Respondent
IN REMOVAL PROCEEDINGS
CHARGE(S): Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality Act
APPLICATION(S): Cancellation of removal for non-permanent resident; voluntary departure
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 (DHS) brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act (the Act). Proceedings were commenced with the filing of the Notice to Appear (NTA) with the Immigration Court. See Exhibit 1.
The respondent admits as alleged in the Notice to Appear that (for example): S/He entered the United States on or about _____________ at or near _________. S/He further concedes that s/he is inadmissible as charged under section 212(a)(6)(A) of the Act as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.
On the basis of the respondent’s admissions (and the supporting I-213/other records admitted into evidence) I find that the respondent’s removability has been established –
(1) [for section 212 charges:] in that the respondent has not shown that he is clearly and beyond doubt entitled to be admitted and is not inadmissible, or in that the respondent has not shown by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. Section 240(c)(2) of the Act.
(2) [for section 237 charges:] by the INS by clear and convincing evidence. Section 240(c)(3) of the Act.
The respondent withdrew any request for asylum or withholding of removal of any form under the Act. She designated _______ as the country of deportation should that become necessary. The respondent applied for relief from removal in the form of cancellation of removal for certain non-permanent residents under section 240A(b)(1) of the Act, and in the alternative voluntary departure under section 240B(b) of the Act. She bears the burdens of proof and persuasion on her requests for relief.
The respondent’s Form EOIR-42B application for cancellation is contained in the record as Exhibit 2. Prior to admission of the application the respondent was given an opportunity to make any necessary corrections and then swore or affirmed before this Court that the contents of the application as corrected were all true and correct to the best of her knowledge.
STATUTORY ELIGIBILITY
To be eligible for cancellation of removal under section 240A(b)(1) an applicant must prove that she (the applicant):
1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding service of the charging document and up to the time of application;
2) has been a person of good moral character for the 10 years prior to a final administrative order (Matter of Ortega, 23 I&N Dec. 793 (BIA 2005);
3) has not been convicted of an offense under certain specified sections of the Act (sections 212(a)(2), 237(a)(2), or 237(a)(3) of the Act); and
4) establishes that removal would result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is a United States citizen or lawful permanent resident.
In this case the respondent has ___ (number) qualifying relatives. LIST QUALIFYING RELATIVES.
To establish exceptional and extremely unusual hardship an applicant must demonstrate that a qualifying relative would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be “unconscionable.” The hardship must be beyond that which was required in suspension of deportation cases. Hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative. Matter of Recinas, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).
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
A. Continuous Physical Presence: To meet the time requirement for cancellation the respondent must show entry into the United States at least by 10 years prior the service of the Notice to Appear, and that she maintained continuous physical presence since that time.
1. When did the respondent begin continuous physical presence?
i. This is a factual question: The REAL ID expects the applicant to present evidence that is reasonably obtainable.
ii. Review the documents, affidavits, and witness testimony. Enter credibility findings and determine what weight to give to the evidence.
2. Even if alien established entry by 10 years prior to service of NTA, is there proof of continuous physical presence since that time?
a. What terminates continuous physical 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. 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).
b. What breaks continuous physical presence?
i. See section 240A(d)(2). Absence from the United States for any single period in excess of 90 days or for any aggregate periods exceeding 180 days will break the respondent’s continuous physical presence.
(1) A departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of cancellation of removal. Matter of Romalez, 23 I&N Dec. 423 (BIA 2002); Vasquez-Lopez v. Ashcroft, 315 F.3d 1201 (9th Cir. 2003) (per curium), as amended upon denial of rehearing en banc, 343 F.3d 961 (9th Cir. 2003).
(2) Where the alien was turned around at the border without entering into a formal agreement with the government whereby the terms and conditions of his departure were clearly specified, and he was not statutorily barred from immediately reapplying for admission to the United States, his being turned away at the border did not have the same effect as an administrative voluntary departure and did not itself interrupt the accrual of an alien’s continuous physical presence. Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005).
(3) The record must contain substantial evidence that would support the conclusion that the respondent knowingly and voluntarily accepted administrative voluntary departure. For the voluntary departure to be under “threat” of deportation, the terms and conditions of the departure must be clearly specified. The respondent must be informed of and accept the terms. He should leave with the knowledge that he does so in lieu of being placed in proceedings and therefore has no legitimate expectation that he may reenter and resume continuous presence. Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006).
(4) 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, 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. Here, 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 Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).
(5) Before it may be found that a presence-breaking voluntary departure occurred, the record must contain some evidence that the alien was informed of and accepted its terms. Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005).
(6) Whereas service of the OSC or NTA, or commission of a qualifying offense stops time forever under 240A(d)(1), a break in time under 240A(d)(2) is just a break; you can begin counting anew after the break. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000). Thus, a voluntary departure that took place more than 10 years prior to the date “immediately preceding” the application for cancellation would not bar the respondent from establishing a new period of time.
c. An applicant who was in the United States at the time of enlistment and has served for a minimum period of 24 months in an active duty status in the armed forces does not need to fulfill the continuous physical presence requirement. Section 240A(d)(3) of the Act.
B. Good Moral Character:
1. Is the respondent a person of good moral character for the 10 years prior to a final administrative order entered by the Immigration Judge or BIA? Matter of Ortega, 23 I&N Dec. 793 (BIA 2005).
a. Good Moral Character is defined in Section 101(f) of the Act.
b. Common bars involve criminal convictions, engaging in alien smuggling, and false testimony under oath.
i. An alien, who was convicted of two misdemeanor crimes involving moral turpitude, is not precluded by the provisions of section 240A(d)(1)(B) of the Act from establishing the requisite 7 years of continuous residence for cancellation of removal under section 240A(a)(2), where 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. Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003).
ii. 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 section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3). However, 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. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).
C. Statutory Bars under 240A(b)(1)(C):
1. Has the respondent been convicted of an offense barring him from cancellation under section 240A(b)(1)(C) of the Act?
2. Section 240A(b)(1)(C) of the Act requires that an applicant for cancellation “has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3).”
3. There is no time limit.
4. In Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004), the Ninth Circuit affirmed a BIA decision interpreting this language to read “convicted of an offense described under.” Thus, alien convicted of crime of domestic violence described in 237(a)(2)(E)(i) of Act was ineligible for cancellation under section 240A(b)(1)(C) even though he could not be charged with removability under section 237. Petty offense has no application under section 237(a)(2)(E)(i) and is therefore not a defense.
5. An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the Act 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) (2000). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).
D. Exceptional and Extremely Unusual Hardship
No one questions the respondent’s motivation or desire to remain in the United States. However, the context for cancellation of removal cases includes the fact that many individuals are waiting in line for their legal opportunity to come to the United States through a family or employment-based visa. Many, particularly in countries like ______, where the respondent is from, have been waiting for years for their visa number to become available. They had and still have the same hopes and dreams of living in the United States as does the respondent. The respondent here however, and many others with cancellation requests, in effect did not wait in the line, but simply bypassed the line, and arguably have been living for years off the opportunities that rightfully belong to those waiting in line.
So, out of fairness and justice to all those persons waiting in line, but also out of sympathy for the truly exceptional case, Congress has fashioned the relief of cancellation which requires that those who came illegally or stayed illegally many years ago now return except in the rare case where return would cause an exceptional and extremely unusual hardship to a qualifying family member. Cancellation is not lawfully appropriate upon a showing of normal hardship, that is, hardship to family which would be expected upon return by most respondents after living many years in the United States. Cancellation is not even appropriate upon a showing of extreme hardship to a family member upon the respondent’s removal. It is only lawfully appropriate where the facts demonstrate an “exceptional and extremely unusual hardship” to a qualifying family member.
The Court has compared the facts of this case with the facts of Matter of Recinas, Matter of Andazola, and Matter of Monreal supra. The closest analogy to the case here is the case of _________.
Matter of Recinas, supra, involved a 39 year old single mother with 6 children to care for, 4 of whom were United States citizens aged 12, 11, 8, 5. All of her remaining immediate family members were in the United States legally including her lawful permanent resident parents and 5 United States citizen siblings. She had no family remaining in Mexico. The Board of Immigration Appeals granted the case finding it to be on the “outer limits” of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.
Matter of Monreal, supra, involved a 34 year old Mexican national who had been in the United States for 20 years. He had come to the United States at the young age of 14. He had 3 United States citizen children ages 12, 8, and an infant. His wife’s application for cancellation had been denied, and she had returned to Mexico with the infant. The respondent was gainfully employed, supporting his children here, and his wife and child in Mexico. His parents were lawful permanent residents of the United States. There was no question that the children had a close relationship with these grandparents and with other family members in the United States. The BIA found no exceptional or extremely unusual hardship to any of the respondent’s 5 qualifying relatives.
Matter of Andazola, supra involved a 30-year-old female, native and citizen of Mexico. She was not married, but she was living with the father of her children. She had entered in 1985, and so considering the date that the Board rendered its decision, she had entered approximately at age 14 and had been in the United States for 16 years. She had two United States children, ages 11 and 6. She was employed and she was receiving the benefits of a 401K plan as well as medical insurance, through her employment. She had purchased a home. She had two automobiles and $7,000 in cash. She claimed that she had no close relatives in Mexico. Her mother was in the United States as well as siblings, but they were not of a lawful status. The respondent had a sixth grade education, so she was concerned that she would not be able to obtain adequate employment were she to return to Mexico. The respondent had asthma, although her children’s health was fine. The Board of Immigration Appeals in the case noted that there would be reduced economic and educational opportunities for the children in Mexico, but the Board found that the respondent had failed to establish exceptional and extremely unusual hardship to either of her two children.
This Court has weighed all the evidence of record both individually and cumulatively on the issue of exceptional and extremely unusual hardship. [The key questions to be asked are: What hardship would ordinarily be expected to result from the alien’s deportation? And: Is the hardship here substantially different from or beyond that ordinarily expected? In defining the terms the BIA did say that they expected the “exception to the norm to be very uncommon,” see Monreal, supra, at 59 or “limited to ‘truly exceptional’ situations,” Id. at 62.]
Upon examination, the Court concludes that there are:
1. Insufficient facts to meaningfully distinguish this case from the result in [Matter of Monreal], [Matter of Andazola]. OR,
2. There are a number of distinguishing factors that warrant a favorable finding to the respondents.
a. Examples of a few potential distinguishing factors to watch for:
i. Parents from different countries
ii. The number of siblings – primarily as an economic factor
iii. Sibling separation – (if a natural outcome, not if manufactured separation)
iv. Respondent substantially older – fewer job possibilities
v. Teenager who spent formative years in the United States. See Matter of OJO, 21 I&N Dec. 381 (BIA 1996) where the BIA gave great weight to the alien’s having spent his formative years here in the US.
vi. If respondents have grandchildren
vii. The unavailability of 212(a)(9)(C)(v) waiver to reenter
CONSIDERATIONS:
1. Credibility of respondent and any witnesses:
2. Financial means: The respondent expressed concern that if deported his economic circumstances may result in exceptional and extremely unusual hardship to his qualifying relatives.
a. The respondent is ____ years old and in good health. Like in Monreal, there is “nothing to show that he would be unable to work and support his United States citizen children in Mexico.” This exact finding was made in Monreal even though the applicant had been here 20 years since the young age of 14, and even though only one of the two parents earned a wage through employment.
b. Came at early age: Like Monreal, the respondent has been in the United States for many years since a very early age. But this fact was found insufficient in Monreal to establish the requisite hardship to the children.
c. Came as adult: The respondent came as an adult. Thus, this is not a case where the respondent does not bear responsibility for the choice to enter the United States illegally, or stay in the United States illegally, or where she has spent her critical formative years in the United States. Contrast Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996). The respondent collected equities in this country knowing full well she may be required to leave at any time.
d. Also, economic detriment due to adverse conditions in the home country, loss of employment or employment benefits in the United States, even the loss of a business or the pursuit of a chosen profession in the United States, and projected difficulty in finding employment in the home country are normal occurrences of deportation and do not justify a grant of cancellation in the absence factors substantially different from or beyond that normally expected to result from the alien’s deportation. Compare Perez v. INS, 96 F.3d 390 (9th Cir. 1996); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986); Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981); Santana-Figueroa v. INS, 644 F.2d 1354 (9th Cir. 1981); Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). All suspension of deportation cases cited for comparison purposes only.
e. Moreover, as a matter of proof / evidence, the respondent:
i. Has not inquired as to possibility of employment in home country.
ii. Has employment skills which would transfer.
iii. Has not shown the ownership of a business or home that would have to be sold, much less sold at a loss.
iv. These are investments that she made (after service of NTA) or (with full knowledge that she had no status in this country).
v. Consider whether, if respondent sold his assets, he would be going returning with sufficient funds to aid in readjustment.
f. Burden from other financial obligations: Support payments / “particular or unusual psychological hardship” – Tukhowinich)
i. Financial obligations to other family members may impact ability to support qualifying family members. Cf. Ramirez-Gonzalez v. INS, 695 F.2d 1208 (9th Cir. 1983), and Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995)
3. Presence of children in home country: Here, like in Monreal and in Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), a suspension of deportation case, the respondent has a child or children in the home country and therefore already has immediate family member obligations in the home country that must be attended to.
4. Children in the United States: (If children are staying in United States):
i. The respondent testified that her children would not be going with her if she were required to leave the United States. Thus I do not consider societal or physical detriment to the child in the parent’s native country, such as fewer economic advantages or educational opportunities. I do however consider the hardship from emotional separation to both the parents and the children.
ii. If a young child were to be separated from his or her parents due to the parents’ deportation, hardship to the family members due to separation must be considered. Perez v. INS, 96 F.3d 390 (9th Cir. 1996). In Matter of Ige, 20 I&N Dec. 880 (BIA 1994), it was stated that “Where an alien alleges extreme hardship will be suffered by his United States Citizen child were the child to remain in the United States upon his parent’s deportation, the claim will not be given significant weight absent an affidavit from the parent stating that it is his intention that the child remain in this country, accompanied by evidence demonstrating that reasonable provisions will be made for the child’s care and support.” The court in Perez v. INS, supra, found this to be a valid evidentiary requirement. Here the respondent has not submitted the required Ige affidavit.
iii. [Following part of Ige was overruled by Perez v. INS: “Assuming a United States Citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parent’s deportation.” Attributing separation hardship to parental choice as was done in Ige was found in Perez v. INS to be a per se rule and therefore inappropriate.]
5. Children in the United States: (If children are going to parent’s homeland):
a. Economic and Educational Opportunities: The fact that economic and educational opportunities for the child might be better in the United States than in the parent’s homeland does not itself establish the requisite hardship. See Matter of Kim, 15 I&N Dec. 88 (BIA 1974); see also Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986) (all suspension of deportation cases cited for comparison purposes only).
i. In Monreal the oldest child, 12, had classes in both English and Spanish and could speak, read, and write in both languages. The BIA did not even mention facts relating to the 8 year old. In this case while English is the child’s (childrens’) primary language, the record does reflect that child speaks and understands Spanish and there is no reason to conclude that she could not progress sufficiently in her Spanish skills to maintain her level of school by the time she accompanied her parents once their appeal rights have been exhausted. Again, this situation is common in cancellation cases, not exceptional or extremely unusual.
ii. Precedent suggests that the readjustment of children to a new country may be easier when the children are still very young as in this case. Even so, while the children may face difficulties adjusting to life in the parent’s homeland, the problems in this case do not materially differ from those encountered by other children who relocate as a consequence of their parents’ deportation. Marquez-Medina v. INS, 765 F.2d 673 (7th Cir. 1985); Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (suspension of deportation cases cited for comparison purposes only).
iii. Special Education classes. It is not uncommon that a respondent points to special education classes for one or more of the qualifying relative children as a factor to be considered in assessing hardship. There are understandably many different variables in these cases including: the age of the child currently, the age and grade when the child entered special education, the reason for the classes, and the number of classes the child attends. There are many different reasons offered as to why a particular child is referred to special education classes. Some of the reasons appear to include environmental factors including the level of English language abilities the child possessed when the child entered public school. Sometimes the placement in special education classes is related to a child suffering from attention deficit disorder. Sometimes a child is referred to special education due to a learning disability such as a disability in auditory processing. Sometimes the reason for placing a child in special education is more severe such as mild mental retardation, or psychological or behavioral problems. The Board of Immigration Appeals would know better the percentage of cancellation cases in which special education is advanced as a hardship factor, and also the extent of the variables involved, as they receive all the appeals from all the Immigration Courts throughout the nation. I find that the facts concerning special education in this case should be weighed as follows:
b. Medical facilities: The fact that medical facilities in the alien’s homeland may not be as good as they are in this country does not itself establish exceptional and extremely unusual hardship to the child. See Matter of Correa, 19 I&N Dec. 130 (BIA 1984) (a suspension of deportation case cited for comparison purposes only).
i. Consider factors reflecting children in good health vs. health problems
6. Separation from family:
a. Family ties: Note and describe family ties / immigration status / degree of closeness / special emotional and financial concerns / emotional impact on respondent of taking children to native country or leaving them in the United States.
b. Monreal: The separation of the children from the grandparents and friends was not found to be sufficient.
c. Separation from friends and family members in the United States is a common result of deportation. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).
d. Respondent would be reunited with other family members in her native country. These family members may be able to provide financial base of support as they (own their own homes; have jobs; etc). If not more, these family members may be able to provide an emotional base of support during the respondent’s time of readjustment. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).
7. Parents as qualifying relatives: In Monreal the parents of the respondent had been LPRs for 3 years; they had no special health concerns; and the BIA noted that the respondent had siblings in Dallas who “presumably” could help parents if necessary.
8. Other factors:
a. Other Adjustment possibilities
i. The respondent did / did not investigate the possibility of her employer filing a visa petition on her behalf.
ii. The respondent is the beneficiary of an approved visa petition. Although not currently available, the respondent then does have the potential for returning to the United States as an immigrant in the not too distant future. (If waiver to 10 year bar is available)
b. Breakup of community ties causing emotional strain on parents or children:
i. The respondent’s ties to her church and community, and her volunteer activities are evidence of involvement and contribution to the community and there will be emotional hardship upon having to separate from these ties. Such ties, however, can be established in the respondent’s native country and the emotional hardship upon separation does not amount to an exceptional and extremely unusual hardship.
c. Factors mitigating weight of claim of immersion into United States society
i. The respondent claims she is fully integrated, immersed, or acculturated to this society but has not demonstrated a willingness or ability to follow certain of this society’s basic requirements such as (for example):
(1) obeying criminal code
(2) paying taxes owed
(3) filing non-fraudulent tax forms
(4) driving with a valid license and car insurance
(5) no welfare fraud
(6) obtaining the required licenses for doing business,
ii. These factors do undercut the respondent’s claim of acculturation and membership in this societ
Summary: The respondents here, like in Monreal, seem to be “really good people.” But that is not the standard for cancellation. The bottom line is that the types of hardships presented by the respondent, although without question significant to him, are the types of hardships expected by most aliens who now face the prospect of return after living in the United States for many years. Like in Monreal, the respondent “has not provided evidence to establish that his qualifying relatives would suffer hardship that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” Accordingly, on consideration of all the factors of record both individually and cumulatively, the application for cancellation of removal must be denied.
ORDER
IT IS HEREBY ORDERED that the respondent’s application for cancellation of removal be granted / denied.
IT IS FURTHER ORDERED that the respondent’s request for voluntary departure in lieu of removal be denied. (OR)
IT IS FURTHER ORDERED that the respondent be granted voluntary departure, in lieu of removal, and without expense to the United States Government on or before _____________ (maximum 60 calendar days from the date of this order).
IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in the amount of $_______________ with the Department of Homeland Security on or before ______________ (five business days from the date of this order).
IT IS FURTHER ORDERED that, if required by the DHS, the respondent shall present to the DHS all necessary travel documents for voluntary departure within 60 days
IT IS FURTHER ORDERED that, if the respondent fails to comply with any of the above orders, the voluntary departure order shall without further notice or proceedings vacate the next day, and the respondent shall be removed from the United States to __________ on the charge(s) contained in the Notice to Appear.
WARNING TO THE RESPONDENT: Failure to depart as required means you could be removed, you may have to pay a civil penalty of $1000 to $5000, and you would become ineligible for voluntary departure, cancellation of removal, and any change or adjustment of status for 10 years to come
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
__________________________________
Voluntary Departure At Conclusion of Proceedings
At the conclusion of removal proceedings, the Court may grant voluntary departure in lieu of removal. INA 240B(b). The alien bears the burden to establish both that he is eligible for relief and that he merits a favorable exercise of discretion. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972); see also Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). To establish eligibility, the alien must prove that he (1) has been physically present in the United States for at least one year immediately preceding service of the Notice to Appear; (2) is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure; (3) is not removable under INA 237(a)(2)(A)(iii) (aggravated felony) or INA 237(a)(4) (security and related grounds); and (4) has established by clear and convincing evidence that he has the means to depart the United States and intends to do so. Matter of Arguelles, supra; INA 240B(b)(1). The alien must be in possession of a valid travel document. 8 C.F.R. 1240.26(c)(2). He must also post a voluntary departure bond in an amount necessary to ensure that he will depart; the amount must be at least $500 and must be posted within five days of the voluntary departure order. INA 240B(b)(3); 8 U.S.C. 1240.26(c)(3).
An alien who was previously granted voluntary departure after having been found inadmissible for entering the United States without inspection is ineligible for voluntary departure. INA 240B(c).
Certain aliens described in INA 101(f) cannot be found to be persons of good moral character. Even if the alien is not barred by INA 101(f), the Immigration Judge retains discretion to evaluate the alien’s moral character by weighing the negative against the favorable factors.
To determine whether a favorable exercise of discretion is warranted as to a request for voluntary departure, the Court must weigh the relevant adverse and positive factors, including the alien’s prior immigration history; criminal history, if any; length of his residence in the United States; and extent of his family, business, and societal ties in the United States. Matter of Gamboa, 14 I&N Dec. at 248; see also Matter of Arguelles, supra. at 817; Matter of Thomas, 21 I&N Dec. 20, 22 (BIA 1995).
If the alien is statutorily eligible and has established that he warrants a favorable exercise of discretion, the Court may grant voluntary departure for a period of up to sixty days. INA § 240B(b)(2).
NOTE: Benchbook Alert
On December 18, 2008, the Department published the final rule amending the voluntary departure regulations. See 73 Fed. Reg. 76,927. This rule became effective January 20, 2009, and applies to any decision granting voluntary departure on or after the effective date. A Notice has been drafted that you may print and hand out to the parties. The Noticecontains the necessary advisals in a .pdf format that you may complete, deliver to the respondent and the DHS, and include in the record. (Voluntary Departure Advisals.pdf)
For more information, see the following alert: Alert – New Voluntary Departure Regulation.
RETURN TO GENERIC ORAL DECISION FORMAT
___________________
STATEMENT OF LAW ON ELIGIBILITY FOR RELIEF
Adjustment of Status – 245
1. Standard Language for Section 245(a)
2. Standard Language for Section 245(i) LIFE Act
3. Standard Language for Cuban Adjustment
4. Standard Language for NACARA Adjustment
Asylum/Withholding under 241(b)/Torture Convention:
Cancellation for Lawful Permanent Residents – 240A(a)
Cancellation for Non-Lawful Permanent Residents – 240A(b)
1. Template 1 for Section 240A(b)(1)
2. Template 2 for Section 240A(b)(1)
3. Template for Section 240A(b)(2)
4. Standard Language for Section 240A(b)(1)
5. Standard Language for Section 240A(b)(2)
8. NACARA Extreme Hardship Cases
Pre-Conclusion Voluntary Departure – 240B
Post Conclusion Voluntary Departure – 240B
Rescission of Adjustment of Status and Removal Proceedings
Registry – 249
Suspension of Deportation – Former 244(a)
209
211(b) Readmission Without Required Documents
216
Waivers
212(c)
212(d)(11)
212(h)
212(i)
212(k)
237(a)(1)(E)(iii) Alien Smuggling
237(a)(1)(H)
237(a)(7) Domestic Violence
SUMMARY OF EVIDENTIARY RECORD ON RELIEF
(including express credibility findings)
The evidentiary record on the issue of relief in lieu of removal consists of documentary exhibit(s) [Insert Exhibit Numbers], the testimony of [Insert Names of Witnesses], the following proffers of evidence [Insert Proffers of Evidence], the following stipulations [Insert Stipulations], and other evidence including [List Additional Evidence].
Documentary exhibits [Insert Numbers] have been admitted into evidence without objection.
Documentary exhibits [Insert Numbers] have been excluded from the evidentiary record for the following reasons [Insert Reasons/Rulings Why These Exhibits Were Not Admitted into the Record].
I find the witness(es) credible for the reasons that follow… [Insert Reasons to Support Your Credibility Finding].
I find the witness(es) not credible for the reasons that follow… [Insert Reasons to Support Your Credibility Finding].
All admitted evidence identified above has been considered in its entirety regardless of whether specifically mentioned in the text of this decision.
FINDINGS OF FACT ON ELIGIBILITY FOR RELIEF
Based upon the evidentiary record consisting of [List Evidence Admitted on Each Factual Issue Relating to the Relief Sought], I find that the respondent has successfully proven that [List Facts That You Find to be True]. I find that the evidentiary record is insufficient to establish that [List Facts that You Find to be Not Established or Supported by the Record].
[Give Reasoning/Legal Analysis to Support the Factual Findings Made Above.]
ANALYSIS AND CONCLUSIONS OF LAW ON ELIGIBILITY FOR RELIEF
(including balancing test on discretion)
Based upon the evidentiary record and the factual findings cited above, I conclude as a matter of law that the respondent has met his/her burden of establishing that he/she is eligible for the relief of [Insert Relief(s) Sought] in lieu of removal. Accordingly, the respondent’s application for [Insert Relief(s) Sought] in lieu of removal is granted.
OR
Based the evidentiary record and the factual findings cited above, I conclude as a matter of law that the respondent has failed to meet his/her burden of establishing that he/she is eligible for [Insert Relief(s) Sought] in lieu of removal. Accordingly, the respondent’s application for [Insert Relief(s) Sought] is accordingly denied.
[Give Reasoning/Legal Analysis to Support the Conclusion of Law Made Above for Each Relief Sought.]
RULINGS ON MOTIONS AND OTHER REQUESTS
[Insert here ruling on any motion or request that has not previously been ruled upon with an explanation of the reasons/legal analysis to support the grant or denial of each motion or request (e.g., motions to continue, motions to suppress, motions to terminate, motion to withdrawal as counsel of record, etc.).]
ORDER(S)
Based upon the above, the following order(s) will enter:
ORDER: IT IS ORDERED that the respondent’s application for [Enter Form of Relief] be and hereby is [granted/denied].
OR
ORDER: IT IS ORDERED that the respondent be removed to [Enter Name of Country] or in the alternative to [Enter Name of Country].
[IF POST-CONCLUSION VOLUNTARY DEPARTURE IS GRANTED]:
Upon the basis of Respondent’s admissions, I have determined that Respondent is subject to removal on the charge(s) in the Notice to Appear. Respondent has made application solely for voluntary departure in lieu of removal.
ORDER: It is HEREBY ORDERED that Respondent be GRANTED voluntary departure at the conclusion of proceedings under section 240B(b) of the Act, in lieu of removal, without expense to the Government, on or before ____________________, or any extensions as may be granted by the Field Office Director, Department of Homeland Security, and under any other conditions the Field Office Director may direct.
It is FURTHER ORDERED that Respondent post a voluntary departure bond in the amount of ____________________ with the Department of Homeland Security within 5 business days, or by ____________________.
It is FURTHER ORDERED:
[ ] that Respondent shall provide to the Department of Homeland Security his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing within 60 days of this order, or within any time extensions that may be granted by the Department of Homeland Security; and/or
[ ] Other ____________________.
It is FURTHER ORDERED that if any of the above ordered conditions are not met as required, or if Respondent fails to depart as required, the above grant of post-conclusion voluntary departure shall be withdrawn without further notice or proceedings and the following order, entered pursuant to 8 C.F.R. § 1240.26(d), shall become immediately effective: Respondent shall be removed to ____________________ on the charge(s) in the Notice to Appear, and in the alternative to ____________________.
Respondent is HEREBY ADVISED that if he or she fails to voluntarily depart the United States within the time specified, or within any extensions that may be granted by the Department of Homeland Security, Respondent will be subject to the following penalties:
1. Respondent will be subject to a civil monetary penalty of not less than $1,000 and not more than $5,000. INA § 240B(d). The Court has set the presumptive civil monetary penalty amount of $3,000 (or ____________________ instead of the presumptive amount). 8 C.F.R. § 1240.26(j).
2. Respondent will be ineligible, for a period of 10 years, to receive cancellation of removal, adjustment of status, registry, voluntary departure, or a change in nonimmigrant status. INA § 240B(d).
Respondent is FURTHER ADVISED that if he or she appeals this decision Respondent must provide to the Board of Immigration Appeals, within 30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond. The Board will not reinstate the voluntary departure period in its final order if Respondent does not submit timely proof to the Board that the voluntary departure bond has been posted. 8 C.F.R. § 1240.26(c)(3)(ii).
Respondent is FURTHER ADVISED that if he or she does not appeal this decision and instead files a motion to reopen or reconsider during the voluntary departure period, the period allowed for voluntary departure will not be stayed, tolled, or extended, the grant of voluntary departure will be terminated automatically, the alternate order of removal will take effect immediately, and the above penalties for failure to depart voluntarily under section 240B(d) of the Act, 8 U.S.C. § 1229c(d), will not apply. 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1).
_____________________________
[Name of Judge]
Immigration Judge
Cancellation of Removal for Non-Lawful Permanent Residents under INA Section 240A(b)(1)
_________________________________
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 endscontinuous 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, 8U.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 ofdeportation 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&NDec. 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 theUnited 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 withoutinspection.
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 goodmoral character.
Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008)
A parent’s period of residence in the United States cannot be imputed to a child for purposes of calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2)(2006).
Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010)
A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2006), for purposes of establishing that an alien has accrued the requisite 7-year period of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2006).
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 the Act.
(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 qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is notm acrime 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) ofthe Act, 8 U.S.C. § 1229b(b)(1)(C) (2000).
Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
(1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonablyobtained.
(2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007),distinguished.
(3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. §1182(a)(2)(A)(ii)(II) (2006).
Matter of Cortez, 25 I&N Dec. 301 (BIA 2010)
(1) An alien who has been convicted of a crime involving moral turpitude for which a sentence of a year or longer may be imposed has been convicted of an offense “described under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien’s eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003), explained.
(2) In determining which offenses are “described under” sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act for purposes of section 240A(b)(1)(C) of the Act, only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.
(3) The respondent’s misdemeanor conviction for welfare fraud in violation of section 10980(c)(2) of the California Welfare and Institutions Code rendered her ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, because it was for a crime involving moral turpitude for which she could have been sentenced to a year in county jail and was therefore for an offense “described under” section 237(a)(2) of the Act.
Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011)
The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration andNationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has beenconvicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006),from establishing eligibility for relief, may not be overcome by a waiver under section212(h) of the Act.
Matter of Pina-Galindo, 26 I&N Dec. 423 (BIA 2014)
An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as having been convicted of two or more offenses for which the aggregate sentences imposed were 5 years or more.
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 thehardship 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 toassist 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, 8U.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 thiscountry.
Matter of Calderon-Hernandez, 25 I&N Dec. 885 (BIA 2012)
An applicant for cancellation of removal seeking to establish exceptional and extremely unusual hardship to his or her child is not required to provide an affidavit and other documentary evidence regarding the child’s care and support upon the alien’s removal if the child will remain in the United States with another parent, even if the other parent is in this country unlawfully. Matter of Ige, 20 I&N Dec. 880 (BIA 1994), clarified.
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 ImmigrationAppeals.
(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 resolvedby the Immigration Judge or the Board.
Ineligible Aliens
Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009)
An alien who entered the United States pursuant to a crewman’s visa for the purpose of obtaining employment as a crewman is statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(1) (2006). Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963), followed.
Qualifying Relatives
Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009)
A stepchild who meets the definition of a “child” under section 101(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).
Matter of Morales, 25 I&N Dec. 186 (BIA 2010)
A stepparent who qualifies as a “parent” under section 101(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(2) (2006), at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).
Matter of Dorman, 25 I&N Dec. 485 (A.G. 2011)
The Attorney General vacated the decision of the Board of Immigration Appeals and remanded for the Board to make specific findings with regard to the respondent’s eligibility for cancellation of removal.
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.
Battered Spouse
Matter of A-M-, 25 I&N Dec. 66 (BIA 2009)
(1) Notwithstanding the heading of section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2006), which only refers to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may be eligible to apply for cancellation of removal under section 240A(b)(2) of the Act.
(2) Given the nature and purpose of the relief of cancellation of removal for battered spouses under section 240A(b)(2) of the Act, such factors as an alien’s divorce from an abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in determining whether an application for that relief should be granted in the exercise of discretion.
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REMOVAL PROCEEDINGS
Alienage and Identity
Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999)
The Immigration and Naturalization Service met its burden of establishing a minor respondent’s deportability for entry without inspection by clear, unequivocal, and convincing evidence, where (1)a Record of Deportable Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at his deportation hearing, made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.
Asylum/Witholding of Removal
Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)
In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.
Burden of Proof
Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
(1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonably obtained.
(2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), distinguished.
(3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).
Competency
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)
(1) Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
(2) The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
(5) Immigration Judges must articulate the rationale for their decisions regarding competency issues.
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)
(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.
(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.
(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.
Evidence
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situatedhad been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s accountwhere other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that willassist the Immigration Judge to understand the evidence or to determine a fact in issue.
Filing Deadlines
Matter of Interiano-Rosa, 25 I7N Dec. 264 (BIA 2010)
When an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned.
Immigration Judges
Matter of A-P-, 22 I&N Dec. 468 (BIA 1999)
(1) A summary decision pursuant to 8 C.F.R. § 240.12(b) (1998) may properly be issued by an Immigration Judge in removal proceedings in lieu of an oral or written decision only when the respondent has expressly admitted to both the factual allegations and the charges of removability; and, either the respondent’s ineligibility for any form of relief is clearly established on the pleadings; or, after appropriate advisement of and opportunity to apply for any form of relief for which it appears from the pleadings that he or she may be eligible, the respondent chooses not to apply for relief or applies only for, and is granted, the relief of voluntary departure.
(2) A summary decision should adequately link the respondent’s admissions to the factual allegations and the charges of removability to the applicable law.
(3) When an Immigration Judge issues an oral decision, the transcribed oral decision shall be included in the record in a manner that clearly separates it from the remainder of the transcript.
Matter of Rodriguez-Carrillo, 22 I&N Dec. 1031 (BIA 1999)
A remand of the record for issuance of a full and separate decision apprising the parties of the legal basis of the Immigration Judge’s decision is not required under Matter of A-P-, 22 I&N Dec. 468 (BIA 1999), where the respondent had notice of the factual and legal basis of the decision and had an adequate opportunity to contest them on appeal, the uncontested facts established at the hearing are dispositive of the issues raised on appeal, and the hearing was fundamentally fair.
Matter of Kelly, 24 I&N Dec. 446 (BIA 2008)
(1) If an Immigration Judge includes an attachment to a decision, particular care must betaken to insure that a complete record is preserved.
(2) An attachment to an Immigration Judge’s oral decision should be individualized with the respondent’s name, the alien registration number, and the date of the decision, and it should be appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment.
Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009)
Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.
Matter of Gamero, 25 I&N Dec. 164
(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.
(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.
Matter of Marcal Neto, et al., 25 I&N Dec. 169 (BIA 2010)
Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.
Matter of Interiano-Rosa, 25 I7N Dec. 264 (BIA 2010)
When an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned.
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)
(1) Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
(2) The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
(5) Immigration Judges must articulate the rationale for their decisions regarding competency issues.
Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)
(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).
(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.
Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011)
(1) When an alien in removal proceedings seeks “review” of the Department of Homeland Security’s (“DHS”) denial of a waiver under section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4) (2006), of the requirement to file a joint petition to remove the conditional basis of lawful permanent resident status, he or she may introduce, and the Immigration Judge should consider, any relevant evidence without regard to whether it was previously submitted or considered in proceedings before the DHS.
(2) The scope of the review authority provided in 8 C.F.R. § 1216.5(f) (2011) is coterminous with the Immigration Judge’s ordinary powers and duties in removal proceedings.
Matter of C-B-, 25 I&N Dec. 888 (BIA 2012)
(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a respondent, an Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel.
(2) If a respondent expresses a fear of persecution or harm in a country to which he or she might be removed, the regulations require the Immigration Judge to advise the respondent of the right to apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available.
(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible or a grant of voluntary departure prior to the completion of removal proceedings under section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1) (2006), the Immigration Judge should consider the respondent’s eligibility for voluntary departure at the
Matter of C-C-I-, 26 I&N Dec. 375 (BIA 2014)
(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.
(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).
Minors
Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999)
The Immigration and Naturalization Service met its burden of establishing a minor respondent’s deportability for entry without inspection by clear, unequivocal, and convincing evidence, where (1)a Record of Deportable Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at his deportation hearing, made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.
Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002)
(1) The Immigration and Naturalization Service met its burden, in an in absentia removal proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at her removal hearing, made no challenge to the admissibility of the Form I-213; (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the record supported the Immigration Judge’s conclusion that the respondent may not have been the child of the adult who claimed to be the respondent’s parent and who furnished the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), followed.
(2) The respondent, a minor who could not be expected to attend immigration proceedings on her own, was properly notified of her hearing, through proper mailing of a Notice to Appear (Form I-862) to the last address provided by her parent, with whom she was residing.
Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002)
Removal proceedings against a minor under 14 years of age were properly terminated because service of the notice to appear failed to meet the requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served only on a person identified as the respondent’s uncle, and no effort was made to serve the notice on the respondent’s parents, who apparently live in the United States.
Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011)
Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age or older at the time of service is effective, and the regulations do not require that notice also be served on an adult with responsibility for the minor.
Naturalization
Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007)
(1) Because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), reaffirmed.
(2) An adjudication by the Department of Homeland Security on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f).
Notice
Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011)
Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age or older at the time of service is effective, and the regulations do not require that notice also be served on an adult with responsibility for the minor.
Prosecutorial Discretion
Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998)
(1) A decision by the Immigration and Naturalization Service to institute removal or other proceedings, or to cancel a Notice to Appear or other charging document before jurisdiction vests with the Immigration Judge, involves the exercise of prosecutorial discretion and is not a decision that the Immigration Judge or this Board may review.
(2) Once the charging document is filed with the Immigration Court and jurisdiction is vested in the Immigration Judge, the Service may move to terminate the proceedings, but it may not simply cancel the charging document. The Immigration Judge is not required to terminate proceedings upon the Service’s invocation of prosecutorial discretion but rather must adjudicate the motion on the merits according to the regulations at 8 C.F.R. § 239.2 (1998).
(3) The Immigration Judge and the Board of Immigration Appeals lack jurisdiction to review a decision of the Immigration and Naturalization Service to reinstate a prior order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(5) (Supp. II 1996).
Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)
(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).
(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.
Refugees
Matter of Smriko, 23 I&N Dec. 836 (BIA 2005)
(1) Removal proceedings may be commenced against an alien who was admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior termination of the alien’s refugee status.
(2) The respondent, who was admitted to the Unites States as a refugee and adjusted his status to that of a lawful permanent resident, is subject to removal on the basis of his convictions for crimes involving moral turpitude, even though his refugee status was never terminated.
Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011)
An alien who has adjusted status to that of a lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, has been admitted to the United States and is subject to charges of removability under section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (2006).
Matter of D-K-, 25 I&N Dec. 761 (BIA 2012)
(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident may be placed in removal proceedings without a prior determination by the Department of Homeland Security that the alien is inadmissible to the United States. Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.
(2) When removal proceedings are initiated against an alien who has been “admitted” to the United States as a refugee, the charges of removability must be under section 237 of the Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).
Termination
Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012)
Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.
Witnesses
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situated had been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.
VOLUNTARY DEPARTURE
Matter of C-B-, 25 I&N Dec. 888 (BIA 2012)
(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a respondent, an Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel.
(2) If a respondent expresses a fear of persecution or harm in a country to which he or she might be removed, the regulations require the Immigration Judge to advise the respondent of the right to apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available.
(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible or a grant of voluntary departure prior to the completion of removal proceedings under section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1) (2006), the Immigration Judge should consider the respondent’s eligibility for voluntary departure at the
Appeal Waiver
Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000)
Voluntary departure may not be granted prior to the completion of removal proceedings without an express waiver of the right to appeal by the alien or the alien’s representative.
Bond
Matter of Diaz Ruacho, 24 I&N Dec. 47 (BIA 2006)
An alien who fails to post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure.
Conditions
Matter of M-A-S-, 24 I&N Dec. 762 (BIA 2009)
An Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure.
Matter of Velasco, 25 I&N Dec. 143 (BIA 2009)
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
Matter of Gamero, 25 I&N Dec. 164
(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.
(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.
Duty to Inform
Matter of Cordova, 22 I&N Dec. 966 (BIA 1999)
(1) If the evidence in the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under section 237(a)(4) of the Immigration and Nationality Act, 8 U.S.C. §1227(a)(4) (Supp. II 1996), the Immigration Judge has the duty to provide the alien with information about the availability and requirements of voluntary departure under section 240B(a) of the Act, 8 U.S.C. §1229c(a) (Supp. II 1996), and to provide the alien the opportunity to apply for this relief prior to taking the pleadings.
(2) An alien does not forfeit the right to apply for voluntary departure under section 240B(a) of the Act by appealing an erroneous denial of this relief.
Failure to Depart
Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007)
(1) The Board of Immigration Appeals lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under section 240B(d)(1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).
(2) An alien has not voluntarily failed to depart the United States under section 240B(d)(1) of the Act when the alien, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted.
In Absentia Proceedings
Matter of Singh, 21 I&N Dec. 998 (BIA 1997)
Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), is not applicable to an alien who was ordered deported at an in absentia hearing and has therefore not remained beyond a period of voluntary departure; consequently, the proceedings may be reopened upon the filing of a timely motion showing exceptional circumstances for failure to appear. Matter of Shaar, supra, distinguished.
Motions to Reopen
Matter of Shaar, 21 I&N Dec. 541 (BIA 1996)
(1) An alien who has filed a motion to reopen during the pendency of a voluntary departure period in order to apply for suspension of deportation and who subsequently remains in the United States after the scheduled date of departure is statutorily ineligible for suspension of deportation pursuant to section 242B(e)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the notice requirements of that section have been satisfied, absent a showing that the alien’s failure to timely depart the United States was due to “exceptional circumstances” under section 242B(f)(2) of the Act.
(2) Neither the filing of a motion to reopen to apply for suspension of deportation during the pendency of a period of voluntary departure, nor the Immigration Judge’s failure to adjudicate the motion to reopen prior to the expiration of the alien’s voluntary departure period constitutes an “exceptional circumstance.”
Standards
Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999)
(1) Effective April 1, 1997, an alien may apply for voluntary departure either in lieu of being subject to removal proceedings or before the conclusion of the proceedings under section 240B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a) (Supp. II 1990), or at the conclusion of the proceedings under section 240B(b) of the Act.
(2) An alien who applies for voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Act must demonstrate, inter alia, both good moral character for a period of 5 years preceding the application for relief and the financial means to depart the United States, but an alien who applies before the conclusion of the proceedings pursuant to section 240B(a) is not subject to those requirements.
(3) Although an alien who applies for voluntary departure under either section 240B(a) or 240B(b) of the Act must establish that a favorable exercise of discretion is warranted upon consideration of the factors set forth in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), which governed applications for voluntary departure under the former section 244(e) of the Act, 8 U.S.C. § 1254(e) (1970), the Immigration Judge has broader authority to grant voluntary departure in discretion before the conclusion of removal proceedings under section 240B(a) than under section 240B(b) or the former section 244(e). Matter of Gamboa, supra, followed.
(4) An alien who had been granted voluntary departure five times pursuant to former section 244(e) of the Act and had returned each time without inspection was eligible to apply for voluntary departure in removal proceedings under section 240B, because the restrictions on eligibility of section 240B(c), relating to aliens who return after having previously been granted voluntary departure, only apply if relief was granted under section 240B.
Matter of A-M-, 23 I&N Dec. 737 (BIA 2005)
(1) Absent specific reasons for reducing the period of voluntary departure initially granted by the Immigration Judge at the conclusion of removal proceedings, the Board of Immigration Appeals will reinstate the same period of time for voluntary departure afforded to the alien by the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), modified.
(2) The respondent, whose asylum application was not filed within a year of his arrival in the United States, failed to demonstrate his eligibility for an exception to the filing deadline or for any other relief based on his claim of persecution in Indonesia, but the 60-day period of voluntary departure granted to him by the Immigration Judge was reinstated.
