Criminal Defense of Immigrants

(B)  Cancellation.  A special form of cancellation of removal exists for battered spouses and children subjected to extreme cruelty.[332]  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.[333]  In addition, the person must not be inadmissible under grounds relating to crimes or terrorism/national security,[334] 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.[335]  A noncitizen convicted of an aggravated felony is not eligible for this relief.[336]  A waiver is available, however, for those deportable under domestic violence ground.[337]  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.[338]  

[332] 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).

[333] INA § 240A(b)(4), 8 U.S.C. § 1229b(b)(4).

[334] INA § § 212(a)(2) or (3), 8 U.S.C. § § 1182(a)(2) or (3).

[335] INA § § 237(a)(1)(G), (2), (3) or (4), 8 U.S.C. § § 1227(a)(1)(G), (2), (3), or (4).

[336] INA § 240A(b)(2)(A)(iv), 8 U.S.C. § 1229b(b)(2)(A)(iv).

[337] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[338] INA § 240A(b)(2)(C), 8 U.S.C. § 1229b(b)(2)(C).