Cancellation of removal for non permanent residents under INA ? 240A(b)(1) is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced.
To be eligible for this relief, the individual must prove that:
1. They have been physically present in the United States continuously for 10 years immediately preceding their application for relief;
2. Have been a person of good moral character;
3. Have not been convicted of any crimes that would make him/her inadmissible or removable; and
4. Their removal would result in exceptional and extremely unusual hardship to his/her United States citizen or lawful permanent resident spouse, parent, or child. ? 240A(b)(1).
Congress deliberately requires the showing of "exceptional and extremely unusual hardship" to emphasize that the alien must provide evidence of harm to his/her United States citizen or lawful permanent resident spouse, parent, or child that is substantially beyond that which would be ordinarily expected to result from an alien's removal. The Board of Immigration Appeals first considered the "exceptional and extremely unusual" standard in Matter of Monreal , In that case the Board noted that "in deciding a cancellation of removal claim, consideration should be given to the age, health, and circumstances of the qualifying family members, including the lower standard of living or adverse country conditions in the country of return might affect those relatives." Applying those factors, the Board ruled that Mr. Monreal, a 34-year-old Mexican national who was the father of three United States children, and who had lived in the United States since the age of 14 did not establish that his removal would result in exceptional and extremely unusual hardship to a qualifying relative.
The Board analyzed the exceptional and extremely hardship standard a year after Matter of Monreal, in In Re Gonzalez Recinas. The applicant in that case was a 39 year-old native of Mexico. She was the mother of four United States citizen children and two Mexican national children. Her parents were lawful permanent residents and her five siblings were United States citizens. She was divorced and had no immediate family in Mexico. During the analysis of the case, the Board restated Congress' intent to narrow the class of aliens who would qualify for relief. However, the Board stated "the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief." Under this case analysis the Board ruled "[g]iven the unusual facts presented in this case, we find that the adult respondent has shown her United States citizen children will suffer exceptional and extremely unusual hardship if she is removed from the United States."
The exceptional and extremely unusual hardship standard is a difficult burden to meet for non permanent residents seeking the relief of cancellation of removal while in removal proceedings. This burden is lessened if the non permanent residents seeking relief had been battered or suffered abuse at the hands of their U.S. citizen spouses or parents. In 1994, Congress passed the Violence Against Women Act (VAWA), then reauthorized and modified it in 2000 and 2005, which affords cancellation of removal as a defense to removal with less rigid requirements if the applicant had been battered or abused.
To be eligible, the applicant must:
1. Have been battered or subject to extreme cruelty in the United States by a united States citizen or lawful permanent resident spouse or parent, or is the parent in common with the abuser and the child has suffered abuse;
2. Have been physically present in the United States continuously for at least three years;
3. Has not been convicted of an aggravated felony;
4. Is not inadmissible or otherwise removable due to criminal, document or marriage fraud, or security grounds; and
5. The removal would result in extreme hardship to the applicant, the applicant's child, or the applicant's parent.
INA ?240A(b)(2).
In order to qualify for cancellation of removal under VAWA, the abuse must rise to the level of battery or extreme cruelty. Under the Federal Code of Regulation, battery and extreme cruelty are defined as "being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence." 8 C.F.R, ?204.2(c)(1)(vi).
Matter of Monreal, 23 I & N Dec. 56 (BIA 2001).
Id.
In In Re Gonzalez Recinas, 23 I & N Dec. 467 (BIA 2002).
Id.
Violence Against Women Act of 1994, Pub. L. No. 103-322, ??40701-03, 108 Stat. 1796, 1953-55. Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, 114 Stat 1464, 1491-539; VAWA 2005.
Re Gonzalez Recinas, 23 I & N Dec. 467 (BIA 2002).
Disclaimer: The information contained herein is intended for general information purposes only. For more information on immigration law or to check your immigration status online please visit: http://www.coimmigrationlawyer.com. You can also schedule your free consultation to speak to Bobbie Masters, an experienced immigration attorney in Denver, Colorado.
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