Aggravated Felonies

Cancellation of removal for non-lawful permanent residents[43] gives an immigration judge the discretion to “cancel the removal” of certain noncitizens who have resided illegally in the United States.  If cancellation is granted, the recipient is also given lawful permanent resident status.[44]  To be eligible for cancellation of removal, non-lawful permanent residents must:

(a)     have 10 years of continuous physical presence in the United States,[45]

(b)     establish Good Moral Character during the preceding 10 years,[46]

(c)     show exceptional and extremely unusual hardship[47] to a United States Citizen or LPR spouse, parent, or child, and

(d)     not have been convicted of an offense listed in INA § § 212(a)(2), 237(a)(2)[48] (which includes aggravated felonies as well as certain other convictions) or (3), and not fall within the terrorism grounds of inadmissibility or deportability.[49]

As with LPR Cancellation, an aggravated felony conviction is a bar to relief. [50]

[43] INA § 240A(b), 8 U.S.C. § 1299b(b).

[44] There is an annual cap of 4,000 on these adjustments.  8 C.F.R. § 240A(e).

[45] See § 2.36, infra.  This ten-year period is calculated backwards from the date on which the application is finally resolved by the immigration court or BIA.  Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA July 21, 2005).

[46] See INA § 101(f), 8 U.S.C. § 1101(f).  The period during which good moral character must be established ends with the entry of a final administrative decision by the Immigration Judge or the Board of Immigration Appeals. Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA July 21, 2005).  At least two courts have held that whether this requirement has been met is a question not subject to judicial review.  Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked good moral character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005).  Another has held that it is.  Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review).

[47] Salvador-Calleros v. Ashcroft, 389 F.3d 959 (9th Cir. Nov. 23, 2004) (exceptional and extremely unusual hardship standard applied to non-LPR cancellation of removal does not violate due process as being overly strict).  At least one court has found this to be a discretionary determination, not subject to judicial review.  Martinez-Maldonado v. Gonzales, 437 F.3d 679 (7th Cir. Feb. 10, 2006).

[48] This is true even though the noncitizens are subject to inadmissibility.  Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. Nov. 29, 2004) (inadmissible noncitizen who was convicted of a crime of domestic violence is also ineligible for cancellation of removal for non-LPRs under INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C)).  A waiver is available for certain noncitizens subject to domestic abuse.  See § 2.38(C), infra.

[49] See INA § § 240A(b)(1), (c), 8 U.S.C. § § 1229b(b)(1), (c).

[50] The statute provides that a conviction listed under INA § 237(a)(2), 8 U.S.C. § 1227(a)(2) bars eligibility for this relief.  INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).  An aggravated felony conviction is listed as a ground of deportation under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).  Therefore, an aggravated felony bars this relief.