Matter of a-M-
| Decision Date | 21 September 2009 |
| Docket Number | Interim Decision No. 3653. |
| Citation | 25 I&N Dec. 66 |
| Parties | Matter of A-M-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated September 11, 2007, an Immigration Judge found the respondent removable as charged and granted her application for special rule cancellation of removal for battered spouses under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006). The Department of Homeland Security ("DHS") has filed a timely appeal contesting the Immigration Judge's grant of relief. The appeal will be sustained and the record will be remanded to the Immigration Judge.
The record reflects that the respondent, a 41-year-old native and citizen of Mexico, married her ex-husband in Oaxaca, Mexico, in 1984. They have four children together, one of whom is a United States citizen. In 1989 the respondent's ex-husband was working in the United States and arranged for the respondent, who did not have lawful status, to join him. The record contains extensive documentation that the respondent's ex-husband abused her both physically and mentally for a number of years. The couple eventually separated in 1996, and the respondent stated that she has not seen her ex-husband since 1998. After their separation, the respondent filed a self-petition to adjust her status to that of a lawful permanent resident as the battered spouse of a lawful permanent resident pursuant to section 204(a) of the Act, 8 U.S.C. § 1154(a) (2000). The former Immigration and Naturalization Service (now the DHS) approved the respondent's self-petition on September 25, 2001. Thereafter, the respondent and her ex-husband divorced on August 18, 2004, and she remarried in March 2006. Her current husband does not have lawful status in the United States.
The respondent was placed in removal proceedings on July 30, 2004, after she attempted to enter the United States from Mexico at the Otay Mesa port of entry in California with two minor children who were not her own. The respondent testified that she agreed to drive the children, who did not have lawful status or documentation to enter the United States, as a favor to their mother. There is no evidence in the record that she was criminally charged for this incident. The DHS issued a Notice to Appear (Form I-862), charging her as an arriving alien who is inadmissible under section 212(a)(6)(E)(i) of the Act, 8 U.S.C. § 1182(a)(6)(E)(i) (2000), for alien smuggling.
During her proceedings before the Immigration Judge, the respondent requested several forms of relief, including special rule cancellation for battered spouses under section 240A(b)(2) of the Act.1 At a hearing on April 26, 2007, the parties stipulated that the respondent's ex-husband is a lawful permanent resident. The respondent also testified about the hardship that her United States citizen son, who is now 16 years old, would suffer if she were removed to Mexico. See section 240A(b)(2)(A)(v) of the Act. The respondent stated that he was born with a birth defect because his right ear is physically deformed, and he has hearing loss in that ear. She testified that her son is eligible for reconstructive surgery and that because of his hearing problems, he has been enrolled in special education classes since kindergarten.
At the close of the hearing, the Immigration Judge noted that the events underlying the issuance of the respondent's Notice to Appear occurred less than 3 years earlier and prevented her from establishing the 3 years of good moral character required under section 240A(b)(2)(A)(iii) of the Act. Accordingly, over the DHS's objection, the Immigration Judge granted the respondent a continuance to allow her to acquire the necessary period of good moral character.
At the next hearing on September 11, 2007, the DHS argued that the respondent was ineligible for cancellation of removal as a battered spouse because she was a lawful permanent resident and only nonpermanent residents could apply for relief under section 240A(b) of the Act. The Immigration Judge issued an oral decision finding the respondent removable as charged. Contrary to the DHS's argument, he held that the respondent was not a permanent resident and found that she relinquished her status when she conceded removability. The Immigration Judge also noted that even if the respondent were still a lawful permanent resident, she could file a motion to reopen after her proceedings were concluded and apply for cancellation of removal under section 240A(b)(2) of the Act. Additionally, the Immigration Judge found that the respondent met the other requirements for special rule cancellation in that she established 3 years of continuous physical presence and good moral character, she was a battered spouse based on her marriage to her ex-husband, and her removal would cause extreme hardship to her United States citizen son. Finally, the Immigration Judge determined that the respondent had shown that relief was warranted as a matter of discretion, and he granted her special rule cancellation of removal as the battered spouse of a lawful permanent resident under section 240A(b)(2) of the Act.
On appeal, the DHS reiterates its contention that the respondent is a lawful permanent resident and that permanent residents are not eligible for cancellation of removal under section 240A(b) of the Act because the heading of that section is "Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents." Furthermore, the DHS challenges the continuance the respondent was granted, arguing that she has not shown 3 years of good moral character.
In response, the respondent asserts that the Act is ambiguous as to whether both permanent and nonpermanent residents may seek special rule cancellation of removal for battered spouses and that the ambiguity should be resolved in her favor. Additionally, she argues that the Immigration Judge was correct in granting her a continuance.
Accordingly, the issues before us on appeal are (1) whether the respondent is a lawful permanent resident; (2) whether she is eligible to request special rule cancellation of removal as a battered spouse under section 240A(b)(2) of the Act and, if so, whether she merits such relief; and (3) whether the Immigration Judge erred in granting her a continuance.
We review findings of fact by the Immigration Judge only to determine whether they are clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (2009). Questions of law, discretion, and judgment, however, may be reviewed de novo. See 8 C.F.R. § 1003.1(d)(3)(ii).
We have held that an alien's lawful permanent resident status does not terminate until the entry of a final administrative order. Matter of Lok, 18 I&N Dec. 101, 105-07 (BIA 1981), aff'd, 681 F.2d 107 (2d Cir. 1982); see also Foroughi v. INS, 60 F.3d 570, 575 (9th Cir. 1995). A final administrative order has not yet been entered in this case. Consequently, we find that the respondent is still a lawful permanent resident, and we conclude that the Immigration Judge's determination in this regard was erroneous. See 8 C.F.R. § 1003.1(d)(3)(ii).
The DHS contends that because section 240A(b) of the Act is entitled "Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents," lawful permanent residents, such as the respondent, are not eligible for that relief.
Section 240A(b)(2) of the Act provides as follows:
Special Rule for Battered Spouse or Child
(A) Authority
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that—
(i)(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
(II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or (III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy;
(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of...
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