Criminal Defense of Immigrants
§ 15.28 5. Application for Relief
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Only after removability has been established will the Immigration Judge determine whether the noncitizen is eligible for some form of relief from removal. Many of the various forms of relief are discussed in Chapter 24, infra. The Immigration Judge may request the parties to present the appropriate applications, briefing, and evidence related to a form of relief before removability has been established. The noncitizen applicant bears the burden of showing s/he is eligible for relief from removal, both statutorily and as a matter of discretion.
 INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).
RELIEF - PROCEDURE - REQUIREMENT TO FILE SUPPORTING DOCUMENTS IN A TIMELY MANNER
Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA Jun. 21, 2010) (when an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned).
REMOVAL PROCEEDINGS - CONTINUANCE - TO AWAIT ADJUDICATION OF PENDING EMPLOYMENT-BASED VISA PETITION OR LABOR CERTIFICATION
Matter of Rajah, 25 I. & N. Dec. 127 (BIA 2009) (in determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the aliens place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009), and any other relevant considerations; an aliens unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status).
RELIEF - EFFECT OF CLAIMING ACTUAL INNOCENCE DESPITE CRIMINAL CONVICTION
Matter of Mendez, 21 I. & N, Dec. 296, 304 (BlA 1996) ("The respondent argues on appeal that his assertion of innocence should not be used against him because he is, in fact, innocent and the criminal justice system makes mistakes, and he therefore should not be forced to be dishonest with himself. However, in ascertaining the effect of a criminal conviction, neither the Board nor the Immigration Judge may go beyond the judicial record to determine the guilt or innocence of an alien. . . . He must be considered guilty of the crime. Taking responsibility and showing remorse for one's criminal behavior does constitute some evidence of rehabilitation.").
REMOVAL PROCEEDINGS"EVIDENCE"EXCLUSION OF TESTIMONY
Delgado v. Holder, 674 F.3d 759 (7th Cir. Mar. 22, 2012) (IJ's behavior did not prevent the petitioner from having a reasonable opportunity to present his case, nor was the petitioner prejudiced by the exclusion of testimony that he argued was inappropriately excluded).
RELIEF - BURDEN OF PROOF - CANCELLATION OF REMOVAL
Sanchez v. Holder, 614 F.3d 760 (8th Cir. Aug. 2, 2010) (no statutory support for petitioner's argument that the burden of proof rested on the government in this case to prove his conviction of an aggravated felony to disqualify him from eligibility for cancellation of removal). Note, this case did not cite or discuss Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).
REMOVAL PROCEEDINGS " RELIEF " ELIGIBILITY " BURDEN OF PROOF
Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc)(By placing the burden on the alien to show that prior convictions do not constitute aggravated felonies, the REAL ID Act established that an inconclusive record of conviction does not demonstrate eligibility for cancellation of removal, notwithstanding our holdings to the contrary in Sandoval"Lua, 499 F.3d at 1130, and Rosas"Castaneda, 655 F.3d at 886.).
REMOVAL PROCEEDINGS - FILING DEADLINES
Casares-Castellon v. Holder, 603 F.3d 1111 (9th Cir. May 4, 2010) (where noncitizens application was itself timely filed, the BIA erred in holding that noncitizens failure to timely submit subsequent documentation allowed the IJ to deem his entire timely-filed, statutorily authorized application abandoned under 8 C.F.R. 1003.31(c)).
REMOVAL PROCEEDINGS - PRO SE - DUTY OF JUDGE
United States v. Moriel-Luna, 585 F.3d 1191 (9th Cir. Oct. 27, 2009) (an Immigration Judge is not required to act creatively to advise an immigrant of the possibilities of relief).
JUDICIAL REVIEW - PETITION FOR REVIEW - IMMIGRATION JUDGE'S FAILURE TO CONSIDER NONCITIZEN'S CLAIM
Muradin v. Gonzales, __ F.3d __, 2007 WL 2080219 (9th Jul. 23, 2007) (reversing and remanding where IJ failed to address petitioner's claim that he was persecuted because he belonged to a particular social group, and substantial evidence supported petitioner's eligibility for relief under the Convention Against Torture).
REMOVAL PROCEEDINGS " RELIEF " DISCRETIONARY FACTORS " DISMISSED COUNTS
Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006) (court could not use dismissed counts, charging spousal abuse, to create an inference that the victim of the simple battery count of which the noncitizen was convicted was in a domestic relationship with the noncitizen defendant); Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007); Yousefi v. INS, 260 F.3d 318, 329-330 (4th Cir. 2001) (decision that assault with dangerous weapon constituted particularly serious crime reversed where immigration court had considered dismissed count in reaching its decision).
RELIEF " DISCRETIONARY DENIAL " BIOMETRICS
Ramirez-Coria v. Holder, __ F.3d __ (10th Cir. Aug. 1, 2014) (IJ did not abuse discretion in denying relief for noncitizens failure to obtain required biometrics).