Written by attorney Brian David Lerner

Cancellation of Removal for Non-Permanent Residents in Removal or Deportation Hearings

An applicant for cancellation of removal must show that he has been a person of good moral character during the requisite period. The Act contains seven classes of persons who are precluded from showing that they are persons of good moral character if any of the specified acts occurred during the requisite period. Previously included was adultery, but that has been removed as an act that is preclusive of a showing of good moral character. The remaining preclusive acts include: (1) Habitual drunkards; (2) A member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (9)(A) of § 212(a) of the INA; or sub-paragraphs (A) and (B) of § 212(a)(2) and (C), except as it relates to a single offense of simple possession of 30 grams or less of marijuana, if the offense of which convicted or to which admitted was committed during the requisite period; (3) One whose income is derived principally from illegal gambling activities; (4) One who has been convicted of two or more gambling offenses; (5) One who has given false testimony for the purpose of obtaining benefits under the Immigration and Nationality Act; (6) One who has been confined as a result of a conviction to a penal institution for 180 days or more, regardless of whether the offense or offenses for which confined were committed within or without such period; (7) One who at any time has been convicted of an aggravated felony as defined in § 101(a)(43). One is not barred from establishing good moral character based on a false statement or claim of U.S. citizenship or unlawful or improper registering to vote if both natural parents (or, in the case of an adopted alien, each adoptive parent) is or was a citizen of the United States by birth or naturalization if the person permanently resided in the United States prior to attaining the age of 16 and reasonably believed at the time of such statement, claim or violation that he or she was a citizen of the United States. A finding of not being a person of good moral character cannot be based on a false statement or claim of citizenship, registering to vote or voting if the person's natural parents (or adoptive parents, if adopted) is or was a citizen of the United States, the person permanently resided in the United States prior to attaining the age of 16 and the person reasonably believed at the time of such statement, claim or violation that he or she was a citizen of the United States. These are only matters which preclude the finding of good moral character. These and any other factors can be considered to determine whether, in an individual case, a person is not of good moral character. For instance, refusal to answer questions may be a factor to be considered. Payment of taxes and providing support to spouse and children are also relevant factors. With respect to hardship, the suspension of deportation provision required only "exceptional hardship" in seven-year cases. Further, such hardship (or the "exceptional and extremely unusual hardship" in the old ten-year cases) could be to the subject of the proceeding, not just to qualifying family members. Under § 240A, such hardship to the subject of the proceeding is not a basis for cancellation. However, in appropriate cases, it may well be that hardship to the subject of the proceedings could result in hardship to close family members. For instance, if there were a serious threat that the person would die if he had to return to his home country that certainly would cause significant hardship to a spouse, child, or parent. There are numerous cases reviewing determinations concerning exceptional hardship but this standard has now been removed from the statute. There have been few recent cases interpreting what constitutes "exceptional and extremely unusual" hardship. Among the factors to be considered are family ties in the United States, the length of residency in the United States, financial burden, health and age of the alien, and ability to return to the United States. Section 240A creates a separate cancellation provision for battered spouse or children. The person must have been battered or subject to extreme cruelty in the United States by a spouse or parent who is a U.S. citizen or permanent resident (or is the parent of a child of a U.S. citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the U.S. by such citizen or permanent resident parent), the person must have been physically present in the U.S. for a continuous period of not less than three years prior to applying, must be a person of good moral character, must not be inadmissible under § 212(a)(2)(3) or removable under § 237(a)(1)(G), (2), (3) or (4), and must not have been convicted of an aggravated felony. The removal must result in extreme hardship to the person, the person's child, or, if the alien is a child, to the child's parent. The statute provides that what evidence is credible and the weight to be given to it is within the sole discretion of the Attorney General. The six bases of ineligibility specified above do not apply to this provision. Significantly, issuance of notices to appear does not terminate continuous presence. Also, absences "connected" to domestic violence do not count for continuous presence. Good moral character may be found despite § 101(f) if the bar was "connected" to the domestic violence. Provision is made for motions to reopen under certain circumstances. Even if all of the foregoing are met, whether or not to grant the application is within the discretion of the immigration judge. However, it would seem that since the hardship standard is so high, and the bases of ineligibility would preclude persons with serious violations from even being eligible, discretion is likely to be withheld very narrowly. Among the discretionary factors that were relevant under the old suspension of deportation provisions were improper receipt of public assistance, accumulating physical presence, hardship or equities while illegally in the United States, invoking the Fifth Amendment right of self-incrimination, possible burden on the government, fraud in entering or re-entering the United States, and the number and scope of immigration violations. Favorable factors included the person's age, length of residency in the United States, family and other ties in the United States, and reputation in the community. The BIA has stated that the weighing and balancing previously applied in § 212(c) cases applies to cancellation cases. With respect to the cancellation of proceedings under the ten-year rule including battered spouses and children, a total of 4,000 adjustments to permanent status may be granted in any fiscal year. The lawful admission for permanent status is recorded as of the date of the cancellation. This includes persons who had applied under the prior suspension of deportation provision.

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