These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
LPR cancellation of removal
The Fifth Circuit has determined that it lacks jurisdiction to review a discretionary denial of cancellation of removal for lawful permanent residents, and that the factors in Matter of C-V-T- do not provide a legal standard sufficient for federal court review.
The full text of Ayala Chapa v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60039-CV0.pdf
The Ninth Circuit has concluded that a prior grant of NACARA cancellation of removal by the Asylum Office precludes a petitioner from seeking cancellation of removal for lawful permanent residents in removal proceedings.
The full text of Hernandez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/27/20-70158.pdf
The Ninth Circuit has found that an individual who acquires Temporary Protected Status is not “admitted in any status” for the purposes of cancellation of removal for lawful permanent residents.
The full text of Hernandez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/28/21-70493.pdf
The Eighth Circuit has determined that a grant of Temporary Protected Status (TPS) does not constitute an admission in any status for cancellation of removal purposes. The Eighth Circuit recognized that it had determined that TPS is an admission for adjustment of status purposes, but limited that decision to the adjustment context only.
The full text of Artola v. Garland can be found here:
The Ninth Circuit has determined that the beneficiary of an approved VAWA self-petition is not admitted for the purposes of cancellation of removal for lawful permanent residents.
The full text of Enriquez v. Barr can be found:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/13-72934.pdf
The Supreme Court has determined that a criminal offense can trigger the stop-time rule for cancellation of removal for lawful permanent residents even if the offense is not the basis for the charge of removability. Accordingly, a lawful permanent resident can trigger the stop-time rule with an offense that triggers inadmissibility, even if the lawful permanent resident is not seeking admission.
The full text of Barton v. Barr can be found here:
https://www.supremecourt.gov/opinions/19pdf/18-725_f2bh.pdf
The Ninth Circuit has determined that an individual who entered in the United States on a parole document was not “admitted in any status,” as contemplated by the cancellation of removal for lawful permanent residents statute. In so doing, the court noted that its prior case law finding that parole status connected with Family Unity Benefits constituted an admission had been repudiated by the Board of Immigration Appeals (Board) and that that the court had previously deferred to the Board’s narrower definition of admission.
The full text of Allaniz v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/20/15-72792.pdf
The Eleventh Circuit has determined that a lawful permanent resident not seeking admission can still trigger the stop-time rule (which stops the accrual of continuous residence required for cancellation of removal) if he is convicted of an offense that renders him inadmissible. In so doing, the court joined the Second, Third, and Fifth Circuits, while diverging from the Ninth Circuit.
The full text of Barton v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201713055.pdf
The Ninth Circuit has held that the stop time rule’s reference to inadmissibility grounds are inapplicable to a lawful permanent resident who is not seeking admission to the United States. Thus, the petitioner’s admission to drug use did not trigger the stop time rule, because the inadmissibility ground for admission to the elements of a controlled substance offense had no application to him.
The full text of Nguyen v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/23/17-70251.pdf
The Board of Immigration Appeals (BIA) has determined that in the Fifth and Ninth Circuits, a wave through admission qualifies as "an admission in any status" for the purposes of cancellation of removal for lawful permanent residents. However, outside the Fifth and Ninth Circuits, applicants will need prove that they were admitted in a lawful status to meet the eligibility criteria for cancellation.
The full text of Matter of Castillo Angulo can be found here:
https://www.justice.gov/file/1029381/download
The Ninth Circuit has determined that a wave-through entry at the border qualifies as an "admission in any status" for the purpose of cancellation of removal for lawful permanent residents. The Ninth Circuit holding is in accordance with a prior decision issued by the Fifth Circuit.
The full text of Saldivar v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf
The Ninth Circuit has retroactively applied the Supreme Court's decision in Holder v. Martinez-Gutierrez, where the Court held that an applicant for cancellation of removal for lawful permanent residents cannot use a parent's years of residency in the United States to fulfill the 7-year residency requirement in the cancellation statute. The Ninth Circuit applied the Montgomery Ward retroactivity analysis, and concluded that the petitioner did not reasonably rely on its contrary decision in Cuevas-Gaspar v. Holder because multiple courts disagreed with that decision, thus putting the petitioner on notice that the decision was vulnerable.
The full text of Lemus v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/16/12-73654.pdf
The Second Circuit determined that a person convicted of a pre-IIRIRA aggravated felony is not eligible for cancellation of removal for lawful permanent residents, and that a person who has been granted 212(c) relief cannot apply for cancellation of removal. The Court further determined that the Supreme Court's decision in Vartelas v. Holder - which addressed the impermissible use of pre-IIRIRA crimes to classify a lawful permanent resident as an applicant for admission after a brief, innocent, and casual trip abroad - did nothing to change these rules.
The full text of Nunez Pena v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/459cb87e-536e-4726-899c-3cfda9e87047/3/doc/15-27-ag_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/459cb87e-536e-4726-899c-3cfda9e87047/3/hilite/
The Seventh Circuit determined that a lawful permanent resident who commits a controlled substance offense that stops the accrual of his continuous residence, as required for cancellation of removal, cannot restart that clock by leaving the United States and re-entering. The court deferred to the Board of Immigration Appeals' decision in Matter of Nelson.
The full text of Isunza v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-11/C:15-1286:J:Shah:aut:T:fnOp:N:1685168:S:0
Narinder Singh was admitted as a lawful permanent resident, and less than 7 years later, convicted of a crime of involving moral turpitude. He subsequently traveled outside the United States, was readmitted as a lawful permanent resident, and more than 7 years later, was served with a Notice to Appear, charging him with removability based on his conviction. He applied for cancellation of removal for lawful permanent residents, arguing that he had accrued the requisite 7 years in any status when he returned from his post-conviction trip abroad. The Immigration Judge and the Board of Immigration Appeals disagreed, finding that his conviction "stopped the clock" on his accrual of 7 years of continuous residency after admission in any status, and that he could not start that clock again by traveling and being readmitted.
The Third Circuit agreed, finding that because Singh was charged with removability based on his criminal conviction, the clock was permanently stopped by the conviction. The Court did acknowledge that its precedent would have allowed Singh to re-start his clock by traveling abroad if he were charged with a ground of removability unrelated to his criminal conviction.
The full decision of Singh v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/151152p.pdf
This week, the Board of Immigration Appeals again determined that a grant of family unity benefits does not qualify as admission in any status for the purpose of cancellation of removal for lawful permanent residents. Coincidentally, the Ninth Circuit issued a decision on the same day reaching the same holding. Both decision rely on the rationale of the Board of Immigration Appeals earlier decision in Matter of Reza-Murillo.
My blog post on the related Ninth Circuit case can be found here: http://www.sabrinadamast.com/journal/2015/6/10/ninth-circuit-finds-that-family-unity-benefits-do-not-qualify-as-an-admission-for-the-purpose-cancellation-of-removal-for-lawful-permanent-residents
The full text of Matter of Fajardo Espinoza can be found here: https://edit.justice.gov/sites/default/files/pages/attachments/2015/06/08/3840.pdf
In a decision earlier this week, the Ninth Circuit resolved tension between its case law and the Board of Immigration Appeals' case law on whether a grant of family unity benefits qualified as admission for the purpose of cancellation of removal for lawful permanent residents. In 2005, the Ninth Circuit had determined that a grant of family unity benefits would qualify as an admission in any status, as required in the cancellation statute, in its decision in Garcia-Quintero v. Gonzales. In 2010, the Board of Immigration Appeals published its decision in Matter of Reza-Murillo, in which it came to the opposite conclusion. In its decision this week, the Ninth Circuit deferred to Matter of Reza-Murillo, finding that the Board of Immigration Appeals' interpretation of the word "admitted" to require a "lawful entry after inspection and admission" (a procedural regularity not required to be granted family unity benefits) to be reasonable.
The full text of Medina-Nunez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/14-70657.pdf
Last week, the Fifth Circuit issued a terrific decision construing the requirements for cancellation of removal for lawful permanent residents. Specifically, the court addressed what it means to be "admitted in any status" for the requisite 7 years. The petitioner had been granted his lawful permanent residence less than 7 years prior to the commission of a controlled substance offense, but more than 7 years after he was waved into the United States as a passenger in a car. The Board of Immigration Appeals had previously ruled that such a "wave through" constituted an admission, but in this case, had found that "admission in any status" requires admission in a lawful status. The Fifth Circuit disagreed, and found that a wave-through was an admission in "any status," regardless of whether that status was legal or illegal, and such, the petitioner had the necessary 7 years following admission in any status to qualify for cancellation of removal for lawful permanent residents.
The full text of Tula-Rubio v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60183-CV0.pdf
