Criminal Defense of Immigrants
§ 24.26 (B)
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(B) Cancellation. A special form of cancellation of removal exists for battered spouses and children subjected to extreme cruelty. INA § 240A(b)(2) provides relief to a noncitizen who was physically present in the U.S. for a continuous period of three years immediately preceding the date of such application and has been a person of Good Moral Character during such period. This relief extends to children of battered parents as well as parents of battered children. In addition, the person must not be inadmissible under grounds relating to crimes or terrorism/national security, and must not be deportable under grounds relating to crimes, marriage fraud, failure to register, document fraud, false claim to U.S. citizenship, security and related grounds. A noncitizen convicted of an aggravated felony is not eligible for this relief. A waiver is available, however, for those deportable under domestic violence ground. See § 24.26(C), infra.
A noncitizen apparently cannot apply for a waiver of inadmissibility under INA § 212(h) in order to avoid the inadmissibility bar to VAWA cancellation. Even if a noncitizen could apply for a waiver of inadmissibility in conjunction with the cancellation application, a grant of the waiver would not erase the conviction as a bar to Good Moral Character. An act or conviction that does not result in the noncitizen’s inadmissibility or deportability will not bar a finding of Good Moral Character if the act or conviction was connected to the noncitizen’s having been battered or subject to extreme cruelty.
 Whether respondent was subject to “extreme cruelty,” and therefore qualifies for cancellation of removal for battered spouses, is a discretionary issue not subject to judicial review. Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. Jul. 5, 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir. Nov. 25, 2005).
 INA § 240A(b)(4), 8 U.S.C. § 1229b(b)(4).
 INA § § 212(a)(2) or (3), 8 U.S.C. § § 1182(a)(2) or (3).
 INA § § 237(a)(1)(G), (2), (3) or (4), 8 U.S.C. § § 1227(a)(1)(G), (2), (3), or (4).
 INA § 240A(b)(2)(A)(iv), 8 U.S.C. § 1229b(b)(2)(A)(iv).
 INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).
 INA § 240A(b)(2)(C), 8 U.S.C. § 1229b(b)(2)(C).
RELIEF " VAWA
Matter of Pagan-Sis 27 I&N Dec. 130 (BIA 2017) (noncitizen seeking waiver under INA 212(a)(6)(A)(ii) must satisfy all three subclauses of that section, including the requirement that the noncitizen be a VAWA self-petitioner).
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
RELIEF - WAIVERS - CANCELLATION OF REMOVAL FOR BATTERED SPOUSES - FACTORS TO BE CONSIDERED
Matter of AM, 25 I. & N. Dec. 66 (BIA Sept. 21, 2009) (given the nature and purpose of the relief of cancellation of removal for battered spouses under INA 240A(b)(2), such factors as a noncitizen's divorce from an abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in determining whether an application for that relief should be granted in the exercise of discretion). http://www.usdoj.gov/eoir/vll/intdec/vol25/3653.pdf
RELIEF - VAWA CANCELLATION OF REMOVAL
Johnson v. United States Atty Gen., __ F.3d __ (3d Cir. Apr. 16, 2010) (court lacks jurisdiction to review discretionary determination on whether VAWA cancellation of removal applicant has shown that he suffered extreme cruelty inflicted by his spouse).
RELIEF - VAWA CANCELLATION - VAWA
Benaouicha v. Holder, 600 F.3d 795 (7th Cir. Apr. 6, 2010) (noncitizen convicted of a crime of moral turpitude is ineligible for VAWA cancellation, even if good moral character can be shown).
JUDICIAL REVIEW - PETITION FOR REVIEW - NO JURISDICTION OVER VAWA CANCELATION EXTREME CRUELTY DETERMINATION
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. Jan. 28, 2009) (VAWA cancellation "extreme cruelty" determination is within the discretion of the Attorney General; therefore the court lacks jurisdiction to review under 8 U.S.C. 1252(a)(2); over petition for review of BIA holding noncitizen ineligible for VAWA cancellation of removal, under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), for determining he was not subjected to extreme cruelty; BIA correctly applied the "extreme cruelty" legal standard in requiring petitioner show psychiatric or medical documents, or other evidence). See also Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir. 2003).
RELIEF - CANCELLATION - VAWA - TIMELINESS
Arellano-Hernandez v. United States, 564 F.3d 906 (8th Cir. May 5, 2009) (VAWA special rule cancellation is an application for relief separate from non-LPR cancellation; VAWA application was untimely when filed after deadline for relief filed by IJ, even though non-LPR cancellation application had been timely filed).
VAWA " JUDICIAL REVIEW " BATTERED SPOUSE
Butalova v. Atty Gen., __ F.3d __ (11th Cir. Oct. 7, 2014) (court lacks jurisdiction to determine whether noncitizen is a battered spouse, under INA 204(a)(1)(A)(iii)).
RELIEF " VAWA " SPECIAL-RULE CANCELLATION
Bedoya-Melendez v. U.S. Atty General, 680 F.3d 1321, (11th Cir. May 17, 2012) (whether noncitizen was battered or subjected to extreme cruelty, as required to be eligible for VAWA special rule cancellation of removal, was not a question of law, such as the Court of Appeals had jurisdiction to consider, but unreviewable discretionary determination).
RELIEF " DEFERRED ACTION FOR CHILDHOOD ARRIVALS " DACA " PRACTICE ADVISORY
Legal Action Center (LAC) updated Practice Advisory, Deferred Action for Childhood Arrivals. http://www.legalactioncenter.org/sites/default/files/practice_advisory_dreamers.pdf For additional resources related to DACA, visit the Immigration Policy Centers website. http://www.legalactioncenter.org/practice-advisories/deferred-action-childhood-arrivals
RELIEF - VAWA - RESOURCES
Ann Benson, Directing Attorney, Washington Defender Associations Immigration Project, Overview of Immigration Consequences of Criminal Conduct for Immigrant Survivors of Domestic Violence (Sept. 2004) http://www.immigrationadvocates.org/library/item.181220-Overview_of_Immigration_Consequences_of_Criminal_Conduct_for_Immigrant_Surv