In re C-V-T-, Interim Decision No. 3342.

• Decision Date: 12 February 1998
• Docket Number: Interim Decision No. 3342.
• Parties: In re C-V-T-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

22 I&N Dec. 7

In re C-V-T-, Respondent.

Interim Decision No. 3342.

Board of Immigration Appeals.

Decided February 12, 1998.

(1) To be statutorily eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1229b(a)), an alien must demonstrate that he or she has been lawfully admitted for permanent residence for not less than 5 years, has resided in the United States continuously for 7 years after having been admitted in any status, and has not been convicted of an aggravated felony.

(2) In addition to satisfying the three statutory eligibility requirements, an applicant for relief under section 240A(a) of the Act must establish that he or she warrants such relief as a matter of discretion.

(3) The general standards developed in Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), for the exercise of discretion under section 212(c) of the Act, 8 U.S.C. § 1182(c)(1994), which was the predecessor provision to section 240A(a), are applicable to the exercise of discretion under section 240A(a).

Pro se.

Robert F. Peck, Assistant District Counsel, for the Immigration and Naturalization Service.

Before: Board Panel: HOLMES, FILPPU, and GUENDELSBERGER, Board Members.

HOLMES, Board Member.

In a decision dated July 25, 1997, an Immigration Judge found the respondent removable as charged under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1227(a)(2)(B)(i)), denied his applications for cancellation of removal, asylum, and withholding of deportation,¹ and ordered him removed from the United States to Vietnam. The respondent has appealed. The appeal will be sustained and the respondent will be granted cancellation of removal under section 240A(a) of the Act (to be codified at 8 U.S.C. § 1229b(a)).²

The respondent is a 42-year-old native and citizen of Vietnam who entered the United States as a refugee on March 1, 1983. He became a lawful permanent resident of this country in 1991. On June 11, 1997, he was convicted in a superior court for the State of Alaska of the offense of misconduct involving a controlled substance, fourth degree, in violation of section 11.71.040 of the Alaska Statutes. He was sentenced to 90 days in jail. Although the record of conviction does not reflect the pertinent subsection of the Alaska Statutes under which he was convicted, an Immigration and Naturalization Service document refers to the offense as "Misconduct involving a Controlled Substance in the Fourth Degree (possession of cocaine)," and the Service attorney advised the Immigration Judge that the respondent had pled guilty to "simple possession of drugs."

Removal proceedings were instituted in June 1997. The respondent has not contested that he is removable under section 237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation. Instead, he applied for cancellation of removal under section 240A(a) of the Act. The Immigration Judge found the respondent statutorily eligible for such relief. Then, noting the absence of pertinent decisions since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), regarding this new section of law, the Immigration Judge stated that she would look for guidance regarding the exercise of discretion to the existing case law concerning applications for suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a)(1994), and for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c)(1994), which were the predecessors to sections 240A(a) and (b) prior to the enactment of the IIRIRA. The Immigration Judge ultimately concluded that the respondent had not adequately demonstrated that he warranted a favorable exercise of discretion and denied his application for cancellation of removal. The respondent appeals from the Immigration Judge's decision in this regard.

I. ISSUES

This case presents two principal issues arising from the respondent's application for cancellation of removal under section 240A(a) of the Act. The first is what standards for the exercise of discretion should be used in considering an application for cancellation of removal under section 240A(a) of the Act. Secondly, under the appropriate standards, has this respondent adequately demonstrated that he warrants, as a matter of discretion, cancellation of removal under this section of law?

II. FACTS

The respondent, the sole witness in this case, was found by the Immigration Judge to have testified credibly. He related that he was born in Saigon, Vietnam, in 1956. His elderly parents and some of his brothers still reside in that country; however, he has not been able to contact his parents by mail for over 10 years and his many attempts to have friends look for them have been unsuccessful. The respondent was in the Vietnamese Marine Corps from 1973 until 1975, when it was disbanded after "the Viet Cong took over." He testified that he returned to Saigon in 1975, was imprisoned from 1975 to 1976 because of his military service, and was forced to do heavy labor for the Communists with insufficient food. From 1976 to 1981, he was allowed to work as a mechanic on the condition that he voluntarily work for the Communists for 1 month a year. He testified that the Communists did not like those who had previously been in the Vietnamese Marine Corps. In 1981, he got into a disagreement with the police who claimed he had violated a curfew even though he had reached home 15 minutes ahead of time. He fought with the police and was charged with assaulting a police officer. He was detained for a week, held separately from others, fed once a day, yelled at because of his prior military service, and told that he had been a mercenary for the United States forces. After his parents posted a bond, he and a younger brother fled Vietnam.

The respondent was admitted to the United States as a refugee in March 1983, and became a lawful permanent resident of this country in 1991. He worked in Los Angeles until 1991, when he moved to Anchorage. His brother remained in California and he has not been in touch with him for many years. The respondent studied English and speaks and reads well enough to keep a job, read papers, and watch English-language television. He works as a mechanic and drives a taxi during the summer in Alaska, and he fishes or fixes boat engines in the winter. While in Alaska, he has volunteered to pick up trash and help clean the streets in the city for several days each summer when asked to help.

The respondent also testified regarding the circumstances of his conviction. He related that on his way home from work one day, a close friend told him that someone wanted to buy cocaine. The respondent did not have any, but knew someone who previously told him that he had cocaine available. The respondent called this person to come over and, acting as the middleman, he took the money from his friend and then gave him the drugs. He testified that he had not been paid and that he had only helped his friend once. After being arrested, the respondent disclosed the drug supplier's name to the police and assisted with his arrest.

The Service introduced into evidence a June 6, 1997, letter written to them by the Alaska assistant district attorney who had prosecuted the respondent and the other Vietnamese individual involved in the drug offense. The prosecutor wrote that he was "taking the unusual step of recommending that the INS allow both men to remain in the United States." He noted in part that "[w]hile these men certainly deserved their convictions, their conduct can only be described as purely amateur, perhaps the most amateur drug delivery case I have encountered."

III. CRITERIA FOR RELIEF UNDER SECTION 240A(a) OF THE ACT

Section 240A(a) of the Act provides that the Attorney General may cancel the removal of an alien who is inadmissible or deportable if the alien:

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

(2) has resided in the United States continuously for 7 years after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

Section 240A(a) of the Act.

Thus, section 240A(a) sets forth three eligibility requirements, but does not provide for the indiscriminate cancellation of removal for those who demonstrate statutory eligibility for this relief. Rather, the Attorney General, or her delegate, is vested with the discretion to determine whether or not such cancellation is warranted. Section 240A(a) does not provide express direction as to how this discretion is to be exercised. Thus, the initial question before us is what standards should be applied in exercising this discretionary authority.

The Immigration Judge concluded, in part, that she should look to the case law that had been developed regarding the exercise of discretion under section 212(c) of the Act, the predecessor provision to section 240A(a) of the Act. The Service agreed with the Immigration Judge's conclusion in this regard. We also find that the application of the general standards developed in the context of relief under the former section 212(c) of the Act are appropriate standards for the exercise of discretion under section 240A(a) of the Act.³

The Board has long noted both the undesirability and "the difficulty, if not impossibility, of defining any standard in discretionary matters . . . which may be applied in a stereotyped manner." Matter of L-, 3 I&N Dec. 767, 770 (BIA, A.G. 1949). Accordingly, there is no inflexible standard for determining who should be granted discretionary relief, and each case must be judged on its own merits. Id. Within this context, the Board ruled in Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), that in exercising discretion under section 212(c) of the Act, an Immigration Judge, upon...