Crimes of Moral Turpitude

 

Cancellation of removal[54] is a rather broad form of relief for which lawful permanent residents are eligible.  To be eligible for this form of relief, the applicant must:

 

(a)                have been a lawful permanent resident for at least five years,

(b)               have resided continuously[55] in the U.S. for seven years[56] after having been lawfully[57] “admitted in any status,” keeping in mind that the seven years stops upon commission of certain offenses or service of a notice to appear,[58]

(c)                not have been convicted of an aggravated felony,

(d)               not come within the terrorism grounds of inadmissibility or deportability,

(e)                not have persecuted others, and

(f)                 not have had certain immigration status or previously been granted certain forms of relief.

 

Once the applicant is statutorily eligible, s/he still faces the critical task of persuading the Immigration Judge to grant relief as a matter of discretion.[59] 

 

Cancellation of removal for LPRs is available to noncitizens who obtained their LPR status by fraud as long as the fraud is waived[60], before the application for cancellation of removal is made (though both may occur in a single removal proceeding).[61]

Noncitizens convicted of one or more CMTs, who are subject to removal as a result, are eligible to apply for cancellation of removal for lawful permanent residents as long as they have not also been convicted of an aggravated felony.  An aggravated felony conviction, whether or not charged in the NTA,[9] completely bars a noncitizen from eligibility for this form of relief from removal.[10]

 

Once the applicant is statutorily eligible, s/he still faces the critical task of persuading the immigration judge to grant relief as a matter of discretion.  The BIA has stated that in deciding whether to exercise discretion in cancellation cases under INA § 240B(a), 8 U.S.C. § 1229c(a), immigration judges should use the same standard employed in adjudicating applications for INA § 212(c), 8 U.S.C. § 1182(c) relief under the previous statute.[11]

 

For deportation proceedings begun prior to April 1, 1997, noncitizens may be eligible for a discretionary waiver of deportation.[12]  See § 3.43, infra, for a discussion of relief under former INA § 212(c), 8 U.S.C. § 1182(c).

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

[63] See § 3.6, infra.

[64] For purposes of the cancellation of removal residence requirement, a seven-year period that starts on January 1, 2000, ends on December 31, 2007).  Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. Sept. 9, 2004).

[65] Matter of Koloamatangi, 23 I. & N. Dec. 548 (BIA Jan. 8, 2003) (noncitizen who acquired LPR status through fraud held not “lawfully admitted for permanent residence” and was therefore ineligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a)).

[54] See § 3.6, infra.

[55] Matter of CVT, 22 I. & N. Dec. 7 (BIA 1998) (granting relief to noncitizen whose single minor drug offense was not a particularly serious crime or ongoing threat, and providing that discretionary decisions in cancellation will follow the balancing test established for INA § 212(c) in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)).  Factors usually considered include rehabilitation and the strength of equities such as length of time in the U.S., close family with lawful status, etc., balanced against the seriousness of the offense.  In cases involving particularly grave offenses, the respondent had to demonstrate unusual and outstanding equities, and relief could still be denied.  See, e.g., Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990).  This discretionary issue is not subject to judicial review. See, e.g., Elysee v. Gonzales, 437 F.3d 221 (1st Cir. Feb. 21, 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. Sept. 9, 2005) (following REAL ID Act, appellate courts continue to lack jurisdiction to review the subjective, discretionary determination that noncitizen failed to satisfy the hardship requirement for cancellation of removal).

[56] E.g., under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).

[57] Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. Sept. 6, 2007) (noncitizen who obtained lawful permanent resident status by fraud has not been lawfully admitted to the United States and is therefore ineligible for LPR cancellation of removal); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993) (where immigration judge grants the permanent resident a fraud waiver, permanent residency becomes valid as of the day that it was originally granted); Matter of Kolomatangi, 23 I. & N. Dec. 548 (BIA 2003). But see Matter of Ayala, 22 I. & N. 398 (BIA 1998) (permanent resident who asserted he obtained that status by fraud because of undisclosed criminal activity was held permanent resident for purposes of the bars to INA § 212(h) relief).

[58] Becker v. Gonzales, 473 F.3d 1000 (9th Cir. Jan. 10, 2007) (“A conviction for an aggravated felony precludes eligibility even absent a charge and finding of removability on that ground. Compare INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (a noncitizen “convicted of any felony” is not eligible) with Matter of Fortiz-Zelaya, 21 I. & N. Dec. 1199 (BIA 1998) (holding that “is deportable” for the purposes of INA § 212(c) eligibility requires a charge and finding of deportability under the relevant deportation ground) and Matter of Ching, 12 I. & N. Dec. 710 (BIA 1968) (same for suspension of deportation).”).

[59] INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).

[60] Matter of CVT, 22 I. & N. Dec. 7 (BIA 1998) (granting relief to noncitizen whose single minor drug offense was not a particularly serious crime or ongoing threat, and providing that discretionary decisions in cancellation will follow the balancing test established for 212(c) in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)).  Factors usually considered include rehabilitation and the strength of equities such as length of time in the U.S., close family with lawful status, etc., balanced against the seriousness of the offense.  In cases involving particularly grave offenses, the respondent had to demonstrate unusual and outstanding equities, and relief could still be denied.  See, e.g., Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990).

[61] See former INA § 212(c), 8 U.S.C. § 1182(c).