Cancellation of Removal under INA Section 240A(a)
By Joseph G. Cella
Section 240A(a) of the Immigration and Nationality Act (“INA” or “Act”) provides that a lawful permanent resident is eligible for cancellation of removal if he or she: (1) has been lawfully admitted for permanent residence for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of an aggravated felony. However, the “stop-time” rule states that any period of continuous residence in the United States may be deemed to end when the applicant commits and offense that renders him or her inadmissible to the United States, or removable from the United States.
In addition to demonstrating statutory eligibility, an applicant for cancellation of removal must establish that relief is warranted in the exercise of discretion. The Board of Immigration Appeals has held that the discretionary determination “will depend in each case on the nature and circumstances of the ground of [removability] sought waived”). Moreover, in keeping with the standards developed under former Section 212(c) of the Act, the Court should consider the record as a whole and balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his favor to determine whether a grant of relief would be in the best interest of this country.
Although there is no threshold requirement that the applicant show unusual or outstanding equities, the Court must weigh the favorable and adverse factors to balance the “totality of the evidence” before reaching a conclusion as to whether the applicant warrants a grant of cancellation of removal in the exercise of discretion. Obviously then, more serious misconduct necessarily weighs more heavily against the exercise of discretion than does less serious misconduct; therefore the applicant must present additional favorable evidence to counterbalance an adverse factor such as serious criminal activity.
When exercising discretion in a cancellation of removal under INA Section 240A(a) “A” case, positive factors to be considered include, but are not limited to, family ties in the United States, residence of long duration in this country, evidence of hardship to the applicant and his family if removal occurs, a history of employment, existence of property or business ties, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to the applicant’s good moral character. Conversely, adverse factors to be considered include the nature and underlying circumstances of the removal ground at issue and any other evidence that could be indicative of an applicant’s bad character or undesirability as a permanent resident of this country.
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