An aggravated felony conviction disqualifies a noncitizen from eligibility for both forms of cancellation of removal.

 

Cancellation of removal is a form of discretionary relief that applies to removal proceedings initiated after April 1, 1997 (replacing former suspension of deportation and section 212(c) relief).[30]  There are several forms of “cancellation of removal” available under the immigration laws.

            A long-term lawful permanent resident in removal proceedings may be eligible to apply for “cancellation of removal” to waive most grounds of inadmissibility and deportability.  See § 2.4, infra.  A different form of “cancellation of removal” is available for non-lawful permanent residents.[31]  See § 2.5, infra.  Yet another form of cancellation of removal is available to abused spouses and children of U.S. citizens or permanent residents under provisions of the Violence Against Women Act.  See § 2.38, infra.  An additional form of cancellation of removal, employing the old, more liberal suspension of deportation rules, is available to certain Salvadorans and Guatemalans under NACARA.  See § 2.23, infra.

 

Cancellation of removal is only available as a defense to removal proceedings; it is not possible affirmatively to apply for this form of relief.[32]  A noncitizen is ineligible to apply for this form of relief if s/he entered as a crewman before June 30, 1964, was a J-visa immigrant under certain conditions, or was previously granted suspension of deportation, cancellation of removal, or relief under former INA § 212(c), 8 U.S.C. § 1182(c).[33]  While it is generally possible to apply for both an application for cancellation and a waiver under INA § 212(c), 8 U.S.C. § 1182 during the same immigration proceeding, it is not possible to do so if the noncitizen has been convicted of an aggravated felony.[34]

 

A “stop-time rule” ending any period of continuous presence or physical residence upon service of a Notice to Appear or commission of certain crimes applies to all forms of cancellation of removal.  The continuous presence requirement and stop-time rule are discussed in § 2.6, infra.

[30] Noncitizens who were placed into proceedings prior to April 1, 1997 may still be eligible for suspension of deportation, discussed at § 2.36, infra, or a waiver under former INA § 212(c), 8 U.S.C. § 1182(c), discussed at § 2.44, infra.  If the conviction itself occurred prior to April 1, 1997, the noncitizen may also be eligible for a waiver under INA § 212(c), 8 U.S.C. § 1182(c).  Ibid.

[31] INA § 240A(b), 8 U.S.C. § 1229b(b).

[32] 8 C.F.R. § 1240.20.

[33] INA § 240A(c), 8 U.S.C. § 1229b(c).

[34] See Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (3d Cir. Aug. 16, 2005) (noncitizen convicted of aggravated felony cannot make simultaneous application for cancellation of removal and 212(c)).

RELIEF - CANCELLATION OF REMOVAL - ELIGIBILITY - AGGRAVATED FELONY CONVICTION DISQUALIFIES NONCITIZEN
Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir. Jan. 10, 2007) (removal of noncitizen does not violate 5th Amendment rights of noncitizens 3 United States Citizen children), following Gallanosa v. United States, 785 F.2d 116, 120 (4th Cir.1986); Gonzalez-Cuevas v. INS, 515 F.2d 1222, 1224 (5th Cir.1975); Ayala-Flores v. INS, 662 F.2d 444, 445 (6th Cir.1981); Cervantes v. INS, 510 F.2d 89, 92 (10th Cir.1975); Delgado v. INS, 637 F.2d 762, 764 (10th Cir.1980).

BIA

RELIEF - CANCELLATION OF REMOVAL - BURDEN
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009) (noncitizen 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, has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under INA 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to INA 240(c)(4)(B), unless it cannot be reasonably obtained; The REAL ID Act applies to all applications for relief filed on or after May 11, 2005. "[I]t is the date the application for relief was filed that governs, rather than the date the Notice to Appear was filed."), distinguishing Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).

Note: Counsel should argue here that the only difference between this case and Sandoval-Lua, is the additional requirement that the respondent must provide corroborating evidence (record of conviction) to establish that the record is, in fact, ambiguous. Thus, this is a burden of production issue, and the burden of proof remains the same as described in Sandoval-Lua. Although Sandoval-Lua was examining a regulation, rather than statute, the essential language of both regarding the burden of proof is the same.

While the Ninth Circuit noted that the current 240(c)(4)(B) did not apply in Sandoval-Lua, the reasoning of the case was based on Taylor and Shepard, rather than a reading of the INA, and arguably still holds in a case where the noncitizen did comply with 240(c)(4)(B):

We are thus left to consider this question: Does an alien seeking to prove his eligibility for cancellation of removal under 8 U.S.C. 1229b(a) carry his burden of establishing by a preponderance of the evidence that he has not been convicted of an aggravated felony when the alien produces an inconclusive record of conviction? We conclude that he does. By submitting an inconclusive record of conviction, Lua has affirmatively proven under the modified categorical analysis that he was not necessarily "convicted of any aggravated felony." 8 U.S.C. 1229b(a)(3).

Under the modified categorical analysis, our concern is with the nature of Lua's 11379(a) conviction, not with the conduct underlying the conviction; FN9 consequently, *1131 we must determine whether the judicially noticeable documents establish that Lua's conviction necessarily was for all of the elements constituting an aggravated felony under 8 U.S.C. 1101(a)(43)(B). If the record of conviction does not so establish, Lua's 11379(a) conviction cannot amount to the generic offense, and Lua has carried his burden. This conclusion results from the Supreme Court's holdings in Taylor, 495 U.S. at 599-602, 110 S.Ct. 2143, and Shepard, 544 U.S. at 19-21, 125 S.Ct. 1254, which both stress that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury "necessarily" found all of the generic elements, or the defendant "necessarily" admitted all of the generic elements in a plea.

Moreover, there is nothing no reason to believe that INA 240(c)(4)(A)(i) requires any heavier a burden of proof than did 8 C.F.R. 1240.8(d), at issue in Sandoval-Lua. Thus counsel should argue that Sandoval-Lua survives post-REAL-ID as long as the respondent complied with INA 240(c)(4)(B).

Counsel can also argue that this BIA decision is incorrect, since the statutory language of INA 240(c)(4)(B) concerns determinations of credibility, and does not come into play in the separate question of the existence/nature of the conviction that allegedly triggers removability.

RELIEF - CANCELLATION OF REMOVAL

First Circuit

RELIEF - CANCELLATION OF REMOVAL
Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. Sept. 6, 2007) (noncitizen who obtained lawful permanent resident status by fraud has not been lawfully admitted to the United States and is therefore ineligible for LPR cancellation of removal).

Fifth Circuit

RELIEF - CANCELLATION OF REMOVAL - AGGRAVATED FELONY BAR - BURDEN OF PROOF ON NONCITIZEN
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (burden of production of evidence of aggravated-felony bar to cancellation of removal lies on noncitizen: "Second, neither Cisneros-Perez nor any case in this Circuit establishes the proposition that the initial burden of production of evidence that the alien is ineligible for discretionary relief lies with the government. Such a conclusion does not flow from the language of the statute or the concomitant regulation."), citing 8 U.S.C. 1229a(c)(4)(A)(i); 8 C.F.R. 1240.8(d).

RELIEF - CANCELLATION OF REMOVAL - PRIOR GRANT OF CANCELLATION FOR CONVICTION DID NOT PRECLUDE LATER USE OF THAT CONVICTION IN REMOVAL PROCEEDINGS
De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir. Dec. 8, 2008) (prior grant of cancellation for conviction following drug conviction did not preclude later use of that conviction in subsequent removal proceedings; cancellation of removal only works to avoid removal under the proceeding in which it has been granted).

Sixth Circuit

RELIEF " CANCELLATION OF REMOVAL FOR NON-LAWFUL PERMANENT RESIDENTS " RETROACTIVITY
Velasco-Tijero v. Lynch, 796 F.3d 617 (6th Cir. Aug. 6, 2015) (non-LPR cancellation of removal criminal bars, under 8 U.S.C. 1229b(b)(1)(C), INA 240A(b)(1)(C), apply retroactively to noncitizens who were convicted prior to IIRAIRA, but placed into removal proceedings after IIRAIRA). NOTE: This case found the noncitizen barred because his crime would have made him deportable under 8 U.S.C. 1227(a)(2)(A)(i), for a single CMT conviction punishable by at least one year in jail. The court did not address the issues decided in Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) (noncitizen barred from cancellation if the offense falls under 8 U.S.C. 1227(a)(2)(A)(i), even if the offense qualifies for the petty offense exception to inadmissibility).

RELIEF " WAIVERS " CANCELLATION OF REMOVAL " WEIGHT OF HARDSHIP FACTORS NONREVIEWABLE
Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. Oct. 5, 2011) (court lacks jurisdiction to review weight attached by Immigration Judge to hardship evidence relating to cancellation of removal; this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions).

Ninth Circuit

RELIEF - CANCELLATION OF REMOVAL - QUALIFYING RELATIVE
Moreno-Morante v. Gonzales, 490 F.3d 1172 (9th Cir. 2007)(United States citizen grandchild, in the lawful custody of non-citizen grandparents, does not meet the statutory definition of "qualifying relative" for the purpose of cancellation of removal).

RELIEF - CANCELLATION OF REMOVAL - AGGRAVATED FELONY CONVICTION DISQUALIFIES NONCITIZEN FROM ELIGIBILITY FOR CANCELLATION OF REMOVAL EVEN THOUGH NONCITIZEN IS NOT CHARGED WITH OR FOUND REMOVABLE ON ACCOUNT OF THE CONVICTION
Becker v. Gonzales, 473 F.3d 1000 (9th Cir. Jan. 10, 2007) ("A conviction for an aggravated felony precludes eligibility even absent a charge and finding of removability on that ground. Compare INA 240A(a)(3)(an alien "convicted of any felony" is not eligible) with Matter of Fortiz-Zelaya, 21 I & N Dec. 1199 (BIA 1998) (holding that "is deportable" for the purposes of 212(c) eligibility requires a charge and finding of deportability under the relevant deportation ground) and Matter of Ching 12 I & N Dec. 710 (BIA 1968) (same for suspension of deportation).").

RELIEF - CANCELLATION OF REMOVAL - INA 212(c) - RETROACTIVITY
Maldonado-Galindo v. Gonzalez, 456 F.3d 1064 (9th Cir. Aug. 3, 2006) (INA 240A(c)(6) bar to cancellation of removal to those who have already received waivers under INA 212(c) is not impermissibly retroactive).

RELIEF - FAMILY UNITY PROGRAM - CANCELLATION OF REMOVAL - CONTINUOUS PRESENCE - FAMILY UNITY PROGRAM STATUS CONSTITUTES BEING ADMITTED IN ANY STATUS
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. Jul. 24, 2006) (BIA's determination that noncitizen's beneficiary status under family unity program does not render him "admitted in any status" for purposes of cancellation of removal was not entitled to Chevron deference, and was in error). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

Tenth Circuit

ADJUSTMENT OF STATUS " RE-ENTRY INADMISSIBILITY BAR
Padilla-Caldera v. Holder, __ F.3d __ (10th Cir. Mar. 14, 2011) (noncitizen who is inadmissible for reentering the country illegally after a year of unlawful presence, under INA 212(a)(9)(C)(i) is ineligible for an adjustment of status under INA 245(i)), following Matter of Birones, 24 I. & N. Dec. 355 (BIA 2007).

Eleventh Circuit

RELIEF - CANCELLATION OF REMOVAL
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (respondent was initially convicted of robbery and sentenced to less than 365 days, he was charged with deportability based on two crimes of moral turpitude, but was granted cancellation of removal, respondent then violated probation and was sentenced to 6 years imprisonment, the DHS brought new proceedings charging the same robbery conviction was an aggravated felon; this was not barred by res judicata, because the probation violation made the offense an aggravated felony, and cancellation of removal only works to avoid being removed on the basis of the current charges, but not any subsequent proceeding).

Other

RELIEF - CANCELLATION OF REMOVAL NIP-NLG PRACTICE ADVISORY: BURDEN OF PROOF TO OVERCOME THE AGGRAVATED FELONY BAR TO CANCELLATION OF REMOVAL
"This practice advisory provides strategies to overcome the aggravated felony bar to cancellation of removal. This issue is relevant for clients who were not subject to removal for an aggravated felony conviction, but may be ineligible for relief based on the aggravated felony bar. The advisory also provides guidance for noncitizens applying for discretionary relief, who may be subject to mandatory grounds of denial." Mar. 22, 2007, by Julie Dahlstrom, Legal Intern at the National Immigration Project, with helpful guidance from Dan Kesselbrenner, Director of the National Immigration Project.

RELIEF - CANCELLATION OF REMOVAL
Cancellation of removal for LPRs is available to noncitizens who obtained their LPR status by fraud as long as the fraud is waived (for example under INA 237(a)(1)(H), 8 USC 1227(a)(1)(H)), before the application for cancellation of removal is made (though both may occur in a single removal proceeding). Matter of Sosa-Hernandez, 20 I. N. Dec. 758 (1993) (where immigration judge grants the permanent resident fraud waiver, permanent residency becomes valid as of the day that it was originally granted); Matter of Kolomatangi, 23 I&N 548 (BIA 2003). But see Matter of Ayala, 22 I&N 398 (BIA 1998) (permanent resident who asserted he obtained that status by fraud because of undisclosed criminal activity was held permanent resident for purposes of the bars to 212(h) relief).