Crimes of Moral Turpitude

            Cancellation of removal is a form of discretionary relief that applies to removal proceedings initiated after April 1, 1997 (replacing the former suspension of deportation and INA § 212(c) relief).[48]  There are several forms of “cancellation of removal” available under the immigration laws.

            A long-term lawful permanent resident in removal proceedings may be eligible to apply for “cancellation of removal” to waive most grounds of inadmissibility and deportability.  See § 3.4, infra.  A different form of “cancellation of removal” is available for non-lawful permanent residents.[49]  See § 3.5, infra.  Yet another form of cancellation of removal is available to abused spouses and children of U.S. citizens or permanent residents under provisions of the Violence Against Women Act.  See § 3.37, infra.  An additional form of cancellation of removal, employing the old, more liberal suspension of deportation rules, is available to certain Salvadorans and Guatemalans under NACARA.  See § 3.22, infra.

Cancellation of removal is only available as a defense to removal proceedings; it is not possible affirmatively to apply for this form of relief.[50]  A noncitizen is ineligible to apply for this form of relief if s/he entered as a crewman before June 30, 1964, was a J-visa immigrant under certain conditions, or was previously granted suspension of deportation, cancellation of removal, or relief under former INA § 212(c), 8 U.S.C. § 1182(c).[51]  While it is generally possible to apply for both an application for cancellation and a waiver under INA § 212(c), during the same immigration proceeding, it is not possible to do so if the noncitizen has been convicted of an aggravated felony.[52]

A “stop-time rule” ending any period of continuous presence or physical residence upon service of a Notice to Appear or commission of certain crimes applies to all forms of cancellation of removal.  If the accrual of presence or residence is stopped before it reaches a certain point, the client is not eligible for cancellation of removal.  The continuous presence requirement and stop-time rule are discussed in § 3.6, infra.

            A grant of cancellation waives both inadmissibility and deportability, and the ground of removal cancelled cannot be charged again in the future.[53]

            For further discussion of cancellation, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 24.3-24.6 (4th Ed. 2007).

[48] Noncitizens who were placed into proceedings prior to April 1, 1997 may still be eligible for suspension of deportation, discussed at N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.24 (4th ed. 2007), or a waiver under former INA § 212(c), 8 U.S.C. § 1182(c), discussed at N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.28 (4th ed. 2007).  If the conviction itself occurred prior to April 1, 1997, the noncitizen may also be eligible for a waiver under INA § 212(c), 8 U.S.C. § 1182(c).  Ibid.

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

[50] 8 C.F.R. § 1240.20.

[51] INA § 240A(c), 8 U.S.C. § 1229b(c).  See Maldonado-Galindo v. Gonzalez, 456 F.3d 1064 (9th Cir. Aug. 3, 2006) (INA § 240A(c)(6), 8 U.S.C. § 1229b(c)(6) bar to cancellation of removal to those who have already received waivers under INA § 212(c) is not impermissibly retroactive).

[52] See Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (3d Cir. Aug. 16, 2005) (noncitizen convicted of aggravated felony cannot make simultaneous application for cancellation of removal and relief under INA § 212(c)).  See also Garcia-Jimenez v. Gonzalez, 472 F.3d 679 (9th Cir. Jan. 2007) (an aggravated felon cannot obtain cancellation of removal for permanent residents if relief is granted under former INA § 212(c) at any time, even during the same proceedings).  Note: it appears from the facts in Garcia-Jimenez, that the Ninth Circuit failed to follow Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop-time rule for cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective date of IIRAIRA; therefore a person may apply for cancellation despite a conviction of a crime of moral turpitude that occurred during the first seven years of physical presence).

[53] See Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. Jan. 18, 2007) (California 1998 conviction could not serve as a predicate for removal because petitioner had been granted cancellation of removal for that conviction).