These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
non-LPR cancellation of removal
The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication that removal of the applicant would increase the likelihood that her daughter would engage in self harm.
The full text of Garcia Cortes v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221930.p.pdf
The Fifth Circuit has determined that it lacks jurisdiction to review the denial of a motion to remand to consider additional hardship evidence in a non-LPR cancellation of removal application.
The full text of Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/22/22-60074-CV0.pdf
The Ninth Circuit has determined that a petitioner convicted of multiple criminal offenses, for which the aggregate sentences were 5 years or more, is ineligible for cancellation of removal for nonlawful permanent residents.
The full text of Ramirez-Medina v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/16-73325.pdf
The Fifth Circuit has determined that whether an applicant for cancellation of removal can demonstrate exceptional and extremely unusual hardship to qualifying relatives is a mixed question of fact and law that the court has jurisdiction to review.
The full text of Guerrero Trejo v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60353-CV0.pdf
The Supreme Court has determined that the time and place of a removal hearing must be included in a Notice to Appear - and not a subsequent notice of hearing - to trigger the stop-time rule for cancellation of removal. In so doing, the court overturns any circuit precedent permitting a so-called “two-step stop-time rule.”
The full text of Niz-Chavez v. Garland can be found here: https://www.supremecourt.gov/opinions/20pdf/19-863_new_5426.pdf
The Board of Immigration Appeals (Board) has denied a cancellation of removal for non-lawful permanent residents case for an applicant who had six qualifying relatives (five U.S.-citizen children and one lawful permanent resident mother). The Board noted that three of the children and the mother had health issues. However, because the applicant and his partner gave conflicting testimony about where the children would live if he was deported, and his partner and mother gave conflicting testimony about the cost of his daughter’s medication in Guatemala, the Board agreed that he had not demonstrated the requisite hardship.
The full text of Matter of J-J-G- can be found here:
The Tenth Circuit has reaffirmed that a Notice to Appear missing the time and date of the first hearing is not jurisdictionally deficient, but rather, presents a claim-processing rule violation. A party may bring a timely request for dismissal based on a deficient Notice to Appear. The court remanded the case for the Board of Immigration Appeals to determine if it has the authority to freeze the age of a qualifying relative on the date an application for cancellation of removal is filed when there is undue delay on the part of the agency in adjudicating the application. In the instant case, the applicant’s daughter turned 21 after the court continued his case 5 times on its own motion, delaying adjudication of his adjudication for six years.
The full text of Martinez-Perez v. Barr can be found here:
https://www.ca10.uscourts.gov/opinions/18/18-9573.pdf
The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.
“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”
The full text of Matter of Castillo-Perez can be found here:
The Fifth Circuit has determined that 8 USC § 1227(a)(2)(C), which defines the firearms deportability ground, does not encompass offenses involving the transportation of firearms. As such, the petitioner, who had been convicted of transporting a firearm in Oklahoma, remained eligible for cancellation of removal for non-lawful permanent residents.
The full text of Flores Abarca v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60236-CV0.pdf
The petitioner had been convicted of several crimes involving moral turpitude and one controlled substance violation involving marijuana. He sought cancellation of removal for non-lawful permanent residents, arguing that he could waive the disqualifying effects of the convictions with a 212(h) waiver. The agency disagreed, and the Ninth Circuit affirmed, finding that the statute provided no basis for combining these two forms of relief.
The full text of Guerrero-Roque v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/09/14-72082.pdf
The Third Circuit has determined that a Notice to Appear which does not list the time and date of a non-citizen's immigration court hearing does not affect the non-citizen's accrual of physical presence for cancellation of removal. The court found that the Department of Homeland Security must comply with the regulations governing Notices to Appear - which require that the notices include the time, date, and location of a future hearing - in order to trigger the "stop time" rule, which holds that continuous physical presence ends with the service of a Notice to Appear.
The full text of Orozco-Velasquez v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/131685p.pdf
The Eighth Circuit has determined that in the context of an application for immigration relief, the applicant bears the burden of demonstrating that a criminal conviction was vacated due to a procedural defect, and not for rehabilitative reasons. In addition, the court deferred to the Board of Immigration Appeals' decision in Matter of Cortez, finding that a non-admitted non-citizen can still be convicted of an offense arising under section 273(a)(2) of the Immigration and Nationality Act, rendering the non-citizen ineligible for cancellation of removal for non-lawful permanent residents.
The full text of Andrade-Zamora v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf
In a published decision, the Ninth Circuit determined that a conviction under Nevada Rev. Stat. §§ 199.480 and 205.690(2) (conspiracy to possess a credit card without consent) is categorically a crime involving moral turpitude because it necessarily requires an intent to defraud. In addition, the court deferred to the Board of Immigration Appeals' interpretation of the statute governing cancellation of removal for non-lawful permanent residents, and found that a conviction for a crime involving moral turpitude which is punishable by at least one year imprisonment renders any non-citizen (including one who has never been admitted to the United States) ineligible for cancellation.
The full text of Mancilla-Delafuente v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/02/12-73469.pdf
In a pair of companion cases, the Board of Immigration Appeals (BIA) clarified when a voluntary departure or voluntary return breaks a non-citizen's continuous physical presence for the purpose of ascertaining eligibility for cancellation of removal for non-lawful permanent residents. The BIA stated that a voluntary departure or return will not break an applicant's continuous physical presence, if, at the time of the departure, the applicant had the right to seek relief from removal before an Immigration Judge and was not informed of this right. In other words, there must be some indication that the applicant, as part of a formal process, accepted voluntary return in lieu of being placed in removal proceedings.
Evidence that the applicant was photographed or fingerprinted at the time of the departure is not sufficient to demonstrate the requisite formality of the process. The BIA concluded "that where an alien has a right to a hearing before an Immigration Judge, there must be reliable testimonial and/or documentary evidence in the record to establish that the alien was informed of that right and waived it before a voluntary departure will be considered a sufficiently formal process to break his or her physical presence." Thus, when evaluating whether a departure breaks an applicant's continuous physical presence, the Immigration Judge should consider (1) the date and place of the encounter underlying the purported presence-breaking departure; (2) the possibility that the alien was alternatively subject to exclusion, deportation, or removal proceedings in which there was a right to a hearing before an Immigration Judge; and (3) the formality of the process used, including how the threat of proceedings was communicated to the alien, what advisals were given, and whether the alien had knowledge that the agreement to depart was in lieu of being placed in proceedings. Interestingly, the BIA noted that the Government attorney will typically be in a better position to offer documentary evidence regarding the formality of any departure.
The full text of Matter of Castrejon-Colino can be found here: http://www.justice.gov/eoir/file/788746/download
The full text of Matter of Garcia-Ramirez can be found here: http://www.justice.gov/eoir/file/788751/download
In a published decision, the First Circuit addressed whether a non-citizen could meet his burden of proof to establish eligibility for relief with an inconclusive record of conviction. Peralta Sauceda was convicted under an assault statute in Maine with two prongs. One of these prongs would qualify as a crime of domestic violence - rendering Peralta Sauceda ineligible for cancellation of removal for non-lawful permanent residents - while the other would not. However, the records available did not specify under which prong he had been convicted, and he was unable to obtain any additional records from the criminal court. As such, the First Circuit found that he had not met his burden to prove his eligibility for cancellation of removal for non-lawful permanent residents.
The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P-01A.pdf
In a published decision, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Camarillo. In so doing, it determined that service of a Notice to Appear, even if the Notice to Appear is missing the time and date of the first hearing, is sufficient to invoke the "stop-time" rule, and the non-citizen will cease to accrue continuous physical presence for the purpose of cancellation of removal.
The full text of Moscoso-Castellanos v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/13/12-72693.pdf
Deferring to the Board of Immigration Appeals' decision in Matter of Pina-Galindo, the Fifth Circuit held that a non-citizen who is inadmissible under section 212(a)(2)(B) of the Immigration and Nationality Act, for having been convicted of two or more offenses for which the aggregate sentences of confinement were 5 years or more, was not eligible for cancellation of removal for non-lawful permanent residents. In so doing, the Fifth Circuit confirmed that the convictions need be for crimes involving moral turpitude or controlled substance offenses to render the non-citizen ineligible.
The full text of Pina-Galindo v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60752-CV0.pdf
In a precedent decision, the Board of Immigration Appeals determined that the service of a Notice to Appear on a non-citizen does not stop his accumulation of continuous physical presence for the purpose of applying for cancellation of removal for non-lawful permanent residents if the Notice to Appear is never filed with an immigration court. Marcos Victor Ordaz-Gonzalez was originally served with a Notice to Appear in 1998, but the Notice to Appear was never filed with an immigration court, and thus, removal proceedings never commenced against Mr. Ordaz. In 2004, the Department of Homeland Security (DHS) served Mr. Ordaz with a second Notice to Appear, and when Mr. Ordaz sought cancellation of removal in court, the Immigration Judge denied his application, finding that service of the 1998 Notice to Appear ended his accumulation of the requisite ten years of continuous physical presence.
The Board of Immigration Appeals disagreed, noting that "[a]ffording 'stop-time' effect to 'any' notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued. And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear. In fact, if we were to adopt the DHS’s approach, even in situations where an alien was provided such an opportunity, a notice to appear that he or she has successfully defended against would nevertheless have “stop-time” effect in later proceedings. We are not persuaded that Congress intended such far-reaching consequences."
The full text of Matter of Ordaz can be found here: http://www.justice.gov/eoir/file/639876/download
In a reissued decision, the Fifth Circuit addressed whether confinement in a penal institution for more than 180 days for a conviction that does not qualify as a crime involving moral turpitude would still pose a statutory bar to establishing the requisite good moral character for cancellation of removal. The court also addressed whether the 10 years of good moral character required for cancellation of removal dates back from the adjudication of the application for cancellation or from the date of service of the Notice to Appear.
The court concluded that an applicant is precluded from establishing the requisite good moral character if they are incarcerated for more than 180 days, even if the incarceration is not related to a crime involving moral turpitude. The court further concluded that good moral character must be established in the 10 years preceding adjudication of the cancellation application.
The full text of Rodriguez-Avalos v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60736-CV1.pdf
My blog post about the original decision in Rodriguez-Avalos can be found here: http://www.sabrinadamast.com/journal/2015/3/8/no-good-moral-character-for-immigrant-who-serves-7-months-for-a-federal-conviction-for-falsely-claiming-to-be-a-us-citizen
For the third time this year, the Eighth Circuit has dismissed an appeal of a cancellation of removal application, finding that the agency's determination of whether a qualifying relative will suffer exceptional and extremely unusual hardship is not subject to federal court review.
The full (but brief) text of Salas-Caballero v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/142556P.pdf
