Aggravated Felonies

 

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).