Wednesday, April 21, 2010

Cancellation of Removal/Battered-Spouse Provision-7th Cir. 2010

Benaouicha v. Holder (Hamilton)
Oral Argument | Full Text

Bd. did not err in affirming IJ's order denying alien's request for cancellation of removal based on alien's allegation that he was battered spouse as contemplated under 8 USC section 1229b(b)(2)(A). Ct. rejected alien's contention that IJ failed to give him opportunity to establish that he was person of good moral character so as to potentially qualify for said cancellation since alien conceded that he was deportable under section 1227(a)(2)(A)(i) for having been convicted of crime of moral turpitude.

In Benaouicha v. Holder, 2010 WL 1292718 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Algeria who sought to defend his removal proceeding by advancing a claim that he qualified for cancellation of removal as a “battered spouse” pursuant to INA § 240A(b)(2) [8 USCA § 1229b(b)(2)]. The court agreed with the determination by the BIA, which upheld the IJ's order of removal, that the petitioner was statutorily ineligible for cancellation because he had been convicted of a crime involving moral turpitude (CIMT) so that it was not necessary to consider the other requirement, to wit: good moral character.

In September 2000, the petitioner was admitted to the U.S. to attend an airline training academy, but he never enrolled in the school. In 2003, he was convicted of a federal offense under 18 USCA § 1001(a)(2) for falsely applying for a social security card and served a six-month sentence. Upon release from federal custody, DHS commenced removal proceedings against him, alleging removability under INA § 237(a)(1)(C) [8 USCA § 1227(a)(1)(C)] for failing to comply with the conditions of his nonimmigrant status and under INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] for being inadmissible at the time of entry. DHS subsequently added an additional charge under INA § 237(a)(2)(A)(i) [8 USCA § 1227(a)(2)(A)(i)] for having a conviction for a CIMT committed within five years of admission and for which a sentence of one year or longer may be imposed. Before the IJ, the petitioner conceded that he was removable on all three charges; however, as relief from removal, he sought adjustment of status to lawful permanent resident based on his marriage to a U.S. citizen. In January 2005, while the removal proceedings were pending, he pled guilty to a battery offense under Ind. Code § 35-42-2-1, and received a one-year suspended sentence and one year of probation. The court noted that the victim of the battery was the petitioner's wife. In February 2006, the petitioner requested a continuance of his immigration court hearing because his marriage had dissolved and he had filed an I-360 petition for classification as a battered or abused spouse of a U.S. citizen. The IJ allowed for several continuances while the I-360 petition was under review, but the petition was ultimately denied by USCIS' Vermont Service Center. Despite a pending appeal to the BIA respecting the I-360, the IJ denied a further continuance, ruled that the petitioner was ineligible for cancellation of removal, and ordered him removed. After the BIA upheld this result, the petitioner appealed to the Circuit Court, arguing, inter alia, that the BIA erred by ordering his removal without allowing him to demonstrate that he was a person of good moral character, which is one of the requirements for the cancellation application that he had endeavored to pursue before the IJ.

The court indicated that it had jurisdiction over the legal claims presented by the petitioner pursuant to INA § 242(a)(2)(D) [8 USCA § 1252(a)(2)(D)], notwithstanding the jurisdictional bar pertaining to the granting of cancellation relief set forth at INA § 242(a)(2)(B)(i) [8 USCA § 1252(a)(2)(B)(i)]. It proceeded to paraphrase the five elements necessary for an applicant to qualify for a grant of cancellation relief under the “battered spouse” provision: (1) he or she has been subject to battery or extreme cruelty by a U.S. citizen spouse, (2) he or she has been physically present in the U.S. for not less than three years, (3) he or she has been a person of good moral character, (4) he or she is not deportable under §§ 237(a)(1)(G), (a)(2) or (a)(4) and has not been convicted of an aggravated felony, and (5) his removal would result in extreme hardship to him or her or his or her child or parent. The court emphasized that the petitioner conceded that he was deportable under INA § 237(a)(2)(A) for having been convicted of a CIMT, thus rendering him ineligible under the fourth prong, as outlined above. The court thus concluded that, even if he could have convinced the government that he satisfied the good-moral-character requirement, as was argued in his brief before the court, the petitioner still remained ineligible for cancellation.

The court also clarified that, to the extent that the petitioner was attempting to appeal USCIS' denial of his I-360 visa petition or was asking the court to remedy the apparent failure of the Vermont Service Center to tender his appeal to the BIA, the court could not address those matters for which it lacked jurisdiction. It pointed out that there was no final administrative decision regarding this “visa application” and that it had no effect on the separate removal order, which was reviewed under INA § 242.

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