An aggravated felony conviction disqualifies a person from eligibility for cancellation of removal for lawful permanent residents.[35]

 

Cancellation of removal[36] is a rather broad form of relief, for which lawful permanent residents are eligible.  To be eligible for this form of relief, the applicant must:

 

(a)              have been a lawful permanent resident for at least five years,

(b)              have resided continuously[37] in the U.S. for seven years[38] after having been lawfully[39] “admitted in any status,” keeping in mind that the seven years stops upon commission of certain offenses or service of a notice to appear,[40]

(c)              not have been convicted of an aggravated felony,

(d)              not come within the terrorism grounds of inadmissibility or deportability,

(e)              not have persecuted others, and

(f)               not have had certain immigration status or previously been granted certain forms of relief.

 

Once the applicant is statutorily eligible, s/he still faces the critical task of persuading the Immigration Judge to grant relief as a matter of discretion.[41] 

 

An aggravated felony conviction, whether charged in the NTA or not, completely bars a noncitizen from eligibility for this form of relief from removal.[42]

If the aggravated felony conviction can be vacated on a ground of legal invalidity by means of post-conviction relief, or a sentence that creates an aggravated felony can be modified (see Chapter 6, infra), the noncitizen will no longer be barred from eligibility for this form of relief from removal.  If the noncitizen does not have an aggravated felony conviction, however, s/he may apply for cancellation if otherwise eligible.

[35] INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).

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

[37] See § 2.6, infra.

[38] For purposes of the cancellation of removal residence requirement, a seven-year period that starts on January 1, 2000, ends on December 31, 2007).  Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. Sept. 9, 2004).

[39] Matter of Koloamatangi, 23 I. & N. Dec. 548 (BIA Jan. 8, 2003) (noncitizen who acquired LPR status through fraud held not “lawfully admitted for permanent residence” and was therefore ineligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a)).

[40] See § 2.6, infra.

[41] Matter of CVT, 22 I. & N. Dec. 7 (BIA 1998) (granting relief to noncitizen whose single minor drug offense was not a particularly serious crime or ongoing threat, and providing that discretionary decisions in cancellation will follow the balancing test established for § 212(c) in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)).  Factors usually considered include rehabilitation and the strength of equities such as length of time in the U.S., close family with lawful status, etc., balanced against the seriousness of the offense.  In cases involving particularly grave offenses, the respondent had to demonstrate unusual and outstanding equities, and relief could still be denied.  See, e.g., Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990).  This discretionary issue is not subject to judicial review. See, e.g., Elysee v. Gonzales, 437 F.3d 221 (1st Cir. Feb. 21, 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. Sept. 9, 2005) (following REAL ID Act, appellate courts continue to lack jurisdiction to review the subjective, discretionary determination that noncitizen failed to satisfy the hardship requirement for cancellation of removal).

[42] INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).

BIA

RELIEF " CANCELLATION OF REMOVAL " ADMISSION
Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010) (a grant of Family Unity Program benefits is not an admission to the United States for purposes of establishing that noncitizen has resided in the United States for seven years after admission for purposes of LPR cancellation of removal).

RELIEF - WAIVERS - CANCELLATION OF REMOVAL FOR BATTERED SPOUSES APPLIES TO LPRS AS WELL AS NON-LPRS
Matter of AM, 25 I. & N. Dec. 66 (BIA Sept. 21, 2009) (notwithstanding the heading of INA 240A(b), 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 INA 240A(b)(2)). http://www.usdoj.gov/eoir/vll/intdec/vol25/3653.pdf

Fourth Circuit

RELIEF " CANCELLATION OF REMOVAL " AGGRAVATED FELONY BAR " BURDEN
Salem v. Holder, ___ F.3d ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Presentation of an inconclusive record of conviction [that does not necessarily establish conviction of an aggravated felony] is insufficient to meet a noncitizen's burden of demonstrating eligibility [for cancellation of removal for LPRs, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)], because it fails to establish that it is more likely than not that he was not convicted of an aggravated felony.); following Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009) (presentation of an inconclusive record of conviction is insufficient to satisfy a noncitizen's burden of proof to show eligibility for cancellation of removal). But see Martinez v. Mukasey, 551 F.3d 113, 122 (2d Cir.2008) (a noncitizen satisfies his burden of proving that he has not been convicted of an aggravated felony"and thus remains eligible for cancellation of removal"simply by proffering an inconclusive record of conviction); Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir.2007) (same), authority affirmed in Rosas"Castaneda v. Holder, 630 F.3d 881, 888 (9th Cir.2011) (ruling that enactment of REAL ID Act does not affect the holding of Sandoval"Lua).

Fifth Circuit

RELIEF " CANCELLATION OF REMOVAL FOR NON-LPRS " MULTIPLE OFFENSES WITH TOTAL SENTENCES OF FIVE YEARS OR MORE
Pina-Galindo v. Lynch, 803 F.3d 193 (5th Cir. Sept. 24, 2015) (per curiam) (non-LPR cancellation criminal bar includes inadmissibility INA 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B) [multiple convictions with sentences totaling five years or more]).

RELIEF " LPR CANCELLATION OF REMOVAL " ADMITTED IN ANY STATUS
Tula-Rubio v. Lynch, ___ F.3d ___ (5th Cir. May 21, 2015) (noncitizen admitted at a port of entry by immigration officials by a wave-through has been admitted in any status for purposes of cancellation of removal eligibility under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

Eighth Circuit

RELIEF - LPR CANCELLATION OF REMOVAL
Kim v. Holder, 560 F.3d 833 (8th Cir. Mar. 26, 2009) (noncitizen who obtained LPR status by fraud is not eligible for cancellation of removal f under INA 240A(a)).

VOLUNTARY DEPARTURE
Garcia-Mateo v. Keisler, 503 F.3d 698 (8th Cir. Oct. 4, 2007) (noncitizens do not have due process interest in discretionary relief in the form of pre- or post-conclusion voluntary departure).

Ninth Circuit

RELIEF - LPR CANCELLATION OF REMOVAL - RESIDENCE REQUIREMENT - IMPUTATION OF PARENT'S RESIDENCE TO CHILD
Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. Sept. 8, 2009) (a parent's status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent for purposes of eligibility for cancellation of removal. INA 240A(a)(1)), applying reasoning of Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (7 years presence of parents should be imputed to unemancipated minor children for LPR cancellation purposes).

RELIEF - CANCELLATION OF REMOVAL - CONVICTION COULD NOT BE BASIS OF REMOVAL AFTER CANCELLATION HAD BEEN GRANTED
Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. Jan. 18, 2007) (California 1998 conviction could not serve as a predicate for removal because petitioner had been granted cancellation of removal for that conviction).

RELIEF - 212(C) RELIEF - CANCELLATION - SIMULTANEOUS RELIEF CANNOT BE GRANTED
Garcia-Jimenez v. Gonzalez, 472 F.3d 679 (9th Cir. Jan. 2007) (one cannot obtain cancellation of removal for permanent residents if relief is granted under former INA 212(c) at any time, even during the same proceedings); compare Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop time rule for cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of moral turpitude that occurred during the first seven years of physical presence).

Note: it appears from the facts in Garcia-Jimenez, that the Ninth Circuit failed to follow Sinotes-Cruz.

Other

BIBLIO - LPR CANCELLATION OF REMOVAL TOOLKIT.
Penn State Law and the Pennsylvania Immigration Resource Center recently issued a toolkit for practitioners on cancellation of removal for LPRs. The toolkit includes: 1) a summary of the statutory elements of LPR Cancellation of Removal; 2) sample exhibit lists, legal memos, and checklists; 3) litigation tips and strategies from practitioners across the country; and 4) a digest of dozens of relevant cases from the Board of Immigration Appeals and federal courts. http://law.psu.edu/academics/clinics_and_externships/center_for_immigrants_rights/toolkit