BIA Reverses LPR Cancellation Grant Based on Criminal History

The Board of Immigration Appeals has reversed a grant of cancellation of removal to a Canadian lawful permanent resident. The respondent had lived in the United States for decades and had significant family, employment, tax, and health-related equities, but also had multiple criminal convictions and recent conduct showing continued recidivism.

The Board found that the Immigration Judge gave insufficient weight to the respondent’s criminal history, including convictions for stolen property, burglary, endangering the welfare of a child, driving while ability impaired, and harassment. The Board concluded that the adverse factors outweighed the respondent’s equities, sustained DHS’s appeal, and ordered him removed to Canada.

The full text of Matter of Mills can be found here: https://www.justice.gov/eoir/media/1443916/dl?inline

Sixth Circuit Denies Review of BIA’s Discretionary Cancellation Denial

The Sixth Circuit has denied consolidated petitions for review filed by an Albanian lawful permanent resident whose cancellation of removal grant was reversed by the BIA. The respondent had entered the United States as a child and had significant family equities, but also had an extensive criminal history.

The Court held that it lacked jurisdiction to review the BIA’s discretionary weighing of positive and negative equities. The Court rejected the argument that the BIA had engaged in impermissible fact-finding, finding instead that the Board permissibly reweighed the facts found by the Immigration Judge. The Court also denied review of the motion to reconsider, finding that the respondent had waived his removability challenge by requesting summary affirmance of the IJ’s decision below.

The full text of Dodaj v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0162p-06.pdf

BIA Reverses Cancellation Grant Based on Criminal History and Lack of Remorse

The Board of Immigration Appeals has reversed a grant of cancellation of removal to a Haitian lawful permanent resident. The respondent had lived in the United States for many years and had significant favorable equities, but also had multiple criminal convictions and additional non-conviction conduct.

The Board found that the Immigration Judge did not give sufficient weight to the respondent’s criminal history, non-conviction conduct, and reluctance to accept responsibility. The Board concluded that those adverse factors outweighed the favorable equities, sustained DHS’s appeal, vacated the cancellation grant, and ordered the respondent removed to Haiti.

The full text of Matter of Germain can be found here: https://www.justice.gov/eoir/media/1442486/dl?inline

BIA Finds Lack of Candor About Criminal History Weighs Heavily Against Cancellation

The Board of Immigration Appeals has determined that a respondent’s lack of candor about his criminal history is a significant adverse factor in the discretionary cancellation analysis. The respondent, a lawful permanent resident from Saint Vincent and the Grenadines, appealed the denial of cancellation of removal after returning to the United States and being charged as inadmissible based on a controlled substance conviction.

The Board affirmed the adverse credibility finding and dismissed the appeal. Although the respondent had strong positive equities, including decades of residence, U.S. citizen children, and employment history, the Board found that his undisclosed arrests, criminal history, and lack of candor outweighed the favorable factors.

The full text of Matter of Richards can be found here: https://www.justice.gov/eoir/media/1442711/dl?inline

Fifth Circuit Finds No Jurisdiction over Discretionary Denial of LPR Cancellation

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

Ninth Circuit Finds that Prior NACARA Cancellation Grant Precludes LPR Cancellation Eligibility

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

Ninth Circuit Finds TPS is Not Admission for LPR Cancellation of Removal

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

Eighth Circuit Finds TPS is not Admission for LPR Cancellation Purposes

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:

https://ecf.ca8.uscourts.gov/opndir/21/05/191286P.pdf

Ninth Circuit Finds Approval of VAWA I-360 is not an Admission

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

SCOTUS Addresses Stop Time Rule for LPR Cancellation

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

Ninth Circuit finds that Parole is not Admission in Any Status

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

Eleventh Circuit Construes Stop-Time Rule for Lawful Permanent Residents

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

NInth Circuit Addresses Application of Stop Time Rule to Lawful Permanent Residents

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

BIA Addresses "Wave Through" Admissions and LPR Cancellation Eligibility

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

Ninth Circuit Determines that Wave Through Entry Qualifies as Admission in any Status

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

Ninth Circuit Retroactively Applies Supreme Court's Decision in Holder v. Martinez-Gutierrez

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

Second Circuit Construes Cancellation of Removal Statute

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/

Seventh Circuit Construes Continuous Residency Requirement for Cancellation of Removal for Lawful Permanent Residents

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

Third Circuit Interprets Stop-Time Rule for Cancellation of Removal

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

Board of Immigration Appeals Reaffirms that a Grant of Family Unity Benefits does not Qualify as an Admission in any Status for the Purpose of Cancellation of Removal for Lawful Permanent Residents

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