Crimes of Moral Turpitude

 

Cancellation of removal for non-lawful permanent residents[1] gives an immigration judge the discretion to “cancel the removal” of certain noncitizens who have resided illegally in the United States.  If cancellation is granted, the recipient is also given lawful permanent resident status.[2]  To be eligible for cancellation of removal, non-lawful permanent residents must:

 

(a)       have 10 years[66] of continuous physical presence[67] in the United States,[5]

(b)      have good moral character during the preceding 10 years,[68]

(c)       show exceptional and extremely unusual hardship[7] to a United States Citizen or LPR spouse, parent, or child, and

(d)      not have been convicted of an offense listed in INA § § 212(a)(2), 237(a)(2)[69] or (3), and not fall within the terrorism grounds of inadmissibility or deportability.[70]

 

Non-lawful permanent residents convicted of even a single crime of moral turpitude are statutorily barred from applying for this relief.  The only exceptions are when the noncitizen qualifies for the Petty Offense,[71] Youthful Offender,[72] or Political Offense[73] exception.[74]  In the Ninth Circuit, certain non-LPRs with pre-April 1, 1997 or pre-November 29, 1990 convictions may still be eligible for former suspension of deportation relief.[14]

[75] INA § 240A(b), 8 U.S.C. § 1299b(b).

[76] There is an annual cap of 4,000 on these adjustments.  8 C.F.R. § 240A(e).

[77] For purposes of cancellation of removal residence requirement, 10-year period that starts on January 1, 2000, ends on December 31, 2010.  Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. Sept. 9, 2004).

[78] Acevedo-Aguilar v. Gonzales, 517 F.3d 8 (1st Cir. Feb. 15, 2008) (noncitizen bears burden of establishing continuous presence for non-LPR cancellation purposes, including proving lack of absence from the United States for more than 90 days); Landin-Zavala v. Gonzales, 488 F.3d 1150 (9th Cir. May 25, 2007) (order of excludability, acceptance of voluntary departure, and subsequent deportation stop the accrual of physical presence required to become eligible for non-LPR cancellation of removal); Juarez-Ramos v. Gonzales, 485 F.3d 509 (9th Cir. May 8, 2007) (expedited removal order interrupts a noncitizen's continuous physical presence in this country for purposes of cancellation of removal relief under 8 U.S.C. § 1229b(b)(1)).

[79] See § 3.6, infra.  This ten-year period is calculated backwards from the date on which the application is finally resolved by the immigration court or BIA.  Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA July 21, 2005).

[66] Commission of a CMT is a bar to good moral character.  See § 3.14, infra.

[67] Salvador-Calleros v. Ashcroft, 389 F.3d 959 (9th Cir. Nov. 23, 2004) (exceptional and extremely unusual hardship standard applied to non-LPR cancellation of removal does not violate due process as being overly strict).  At least two courts have found this to be a discretionary determination, not subject to judicial review. Martinez v. U.S. Att’y Gen., 441 F.3d 1219 (11th Cir. Apr. 21, 2006); Martinez-Maldonado v. Gonzales, 437 F.3d 679 (7th Cir. Feb. 10, 2006).

[68] A waiver is available for certain noncitizens subject to domestic abuse.  See § 3.37, infra.

[69] See INA § 240A(b)(1), (c), 8 U.S.C. § 1229b(b)(1), (c).

[70] See § 4.5, infra.

[71] See § 4.6, infra.

[72] See § 4.7, infra.

[73] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA May 8, 2003) (conviction of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II), does not render respondent ineligible for cancellation of removal under INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C), since s/he “has not been convicted of an offense under [INA § ] 212(a)(2)”).

[74] See § 3.35, infra.