Crimes Involving Moral Turpitude May Bar Eligibility for Cancellation of Removal

As immigration lawyer assists client in deportation proceeding, it is often important to review and determine whether a client is eligible for cancellation of removal when assessing whether or not to go forward on an application for immigration benefits in immigration court. For example, in the case of an applicant for naturalization where a criminal conviction rendering them deportable exists, but where there are strong equities to prevent removal under an application for cancellation of removal should the applicant be referred to immigration proceedings. A recent BIA decision, Matter of Gabriel Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), has changed how we calculate an individual’s eligibility for non-LPR cancellation. As a result, we are attaching the following legal analysis to assist other immigration practitioners in making the appropriate legal determinations prior to any application for adjustment, change or extension of status in immigration court.

Overview of elements of cancellation of removal

Under 240A(b), a person is eligible for cancellation of removal if 1) the individual has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application 2) the individual establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent or child, who is a citizen of the United States, or alien lawfully admitted for permanent residence 3) the individual has been a person of good moral character during such period ,and 4) the individual has not been convicted of an offense under 1182(a)(2), 1227(a)(2) or 1227(a)(3).The recent decision in Matter of Almanza-Arenas, requires us to reexamine how we look at the bar to cancellation under this last element—for those convicted of an offense under 1182(a)(2) and 1227(a)(2).

Matter of Gabriel Almanza-Arenas Held that Conviction of CIMT may Stop-Time

In Almanza-Arenas, the applicant was placed in removal proceedings after being convicted of a misdemeanor offense (punishable by less than one year) involving theft of a vehicle. In removal, Almanza applied for non-LPR cancellation arguing that he met all four grounds under INA Sec., 240A(b). See above. The IJ disagreed and denied asylum because Almanza failed to prove that he had not been convicted of an offense under section 237(a)(2) of the act, a crime involving moral turpitude. As you know, INA § 237(a)(2)(A)(ii) indicates that “any alien who is (1) convicted of a crime involving moral turpitude committed within five years after the date of admission, and (2) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” The BIA agreed with the IJ’s logic stating that “because the Respondent failed to establish that he was not convicted of a crime involving moral turpitude, he falls within the provisions of section 237(a)(2). The furthermore articulate that “the fact that [Almanza] is an arriving alien and that his conviction might be considered to be for a petty offense for purposes of establishing his admissibility is therefore irrelevant for purposes of determining whether he is eligible for cancellation of removal under 240A(b)(1)(C).”

What Almanza-Arenas means for clients seeking to apply for an immigration benefit, including adjustment of status, is that any criminal conduct that can be deemed as “morally turpitudenous” will knocked the individual out of non-LPR cancellation eligibility without regard for the maximum possible or actual sentence involved in the case. Thus, if a client wishes to apply for an immigration benefit, but has inadmissibility or deportability issues, they must reconsider their eligibility for non-LPR cancelation should their case be referred to removal proceedings.

What Almenza-Arenas does NOT change is our analysis for purposes of determining “continuous physical presence” under 240A(b).
The first step in determining whether an applicant has a defense of cancellation in removal proceedings is determining whether they have the requisite time of 10 years of continuous physical presence in the US. For purposes of accruing the requisite 10 years of physical presence, the time stops when the applicant:
(A) is served a notice to appear… or
(B) when the alien has committed an offense… that renders the alien removable under 237(a)(2) of this title and referenced in 212(a)(2).
Thus, for purposes of determining whether an individual has accrued the requisite time for purposes of non-LPR cancellation of removal, if the time is not stopped when the crime is committed, then it will be stopped upon service of the NTA. In this context, a petty offense CIMT will not “stop-time.” Almanzas-Arenas does NOT affect the current interpretation of the stop-time rule.

Assuming that the applicant does have the requisite 10 years, however, may still not be enough for winning a non-LPR cancellation case. As you know, meeting the statutory requirements is the minimum of what an applicant needs to show to be eligible for cancellation of removal. In order to succeed on an application for cancellation of removal, an applicant will need to show more. The court will weigh the recency and seriousness of the crime against:

- Family ties within the US;
- Long term residency in the US;
- Evidence of hardship to the respondent and family if deportation occurs;
- Existence of property, business (employment) or community ties;
- Proof of Rehabilitation;
- Any evidence of good moral character

Before risking removal proceeding, it is important to evaluate whether these positive factors are present in the applicant’s case. See USCIS Memo on Prosecutorial Discretion, attached for your review. Where a client is eligible for cancellation, and is likely to succeed on the merits, then the client must be carefully counseled as to the risks involved in applying for naturalization. USCIS utilizes prosecutorial discretion in determining which cases warrant a referral to removal proceedings.# USCIS will consider the following factors, among others, in exercising prosecutorial discretion:

- Immigration status;
- Duration of residence in the US;
- Criminal history;
- Humanitarian concerns;
- Immigration history;
- Likelihood of ultimate removal;
- Eligibility for other relief;
- Community attention

Immigration Attorney Assistance with Cancellation of Removal

To retain my office to represent you in immigration court for cancellation of removal, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney. Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week. Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California. Free immigration consultation and advice within 24 hours guaranteed.