Legal Memorandum: Alien's Eligibility for a Cancellation of Removal

Issue: Is an alien who is the subject of a removal petition for convictions for domestic abuse under California law able to make a successful application for cancellation of removal?

Area of Law: Immigration & Naturalization Law
Keywords: Cancellation of removal; Deportable alien; Domestic abuse
Jurisdiction: Federal
Cited Cases: 389 F. 3d 959; 876 F.2d 734
Cited Statutes: 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3); 8 U.S.C. § 1229b(b)(1); 8 U.S.C. § 1229b(d); Cal. Penal Code § 273.5; 8 U.C.S. § 1182(a)(2)(A)(i)(I); Cal. Penal Code §§ 243 (e)(1), Cal. Penal Code §243(e), § 273.5; 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii), §1227(a)(2)(E)(i), § 1227(a)(3); Cal. Penal Code § 242; 8 U.S.C. § 1227(a)(2)(E)(i); 8 U.S.C. § 1229b(b)(1)(D)
Date: 03/01/2007

An otherwise deportable alien is eligible for cancellation of removal if the alien can establish four elements: (1) he has been physically present in the United States for a continuous period of not less than ten years; (2) he has been a person “of good moral character” during that period; (3) he has not been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3); and (4) he establishes that removal would result in “exceptional and extremely unusual hardship” to his child or children that are United States citizens.  8 U.S.C. § 1229b(b)(1); Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1057 (9th Cir. 2006).  Each element is considered separately below.

The meaning of ten years of continuous residence is considered in 8 U.S.C. § 1229b(d), which contains what is commonly referred to as the “stop-time rule”.  See Toro-Romero v. Ashcroft, 382 F.3d 930, 937 (9th Cir. 2004); Rubio-Alcaraz v Gonzalez, 123 F. Appx. 330, 331 (9th Cir. 2005) (not precedential).  The rule derived from the statute provides that the time of continuous residence stops at the earlier of (1) the time the alien is served with the NTA or (2) when he is first convicted of a crime of “moral turpitude”.  Id.  Once stopped, the time does not begin to run anew.  Martinez-Perez v. Ashcroft, 93 F. Appx. 153, 154 (9th Cir. 2004) (not precedential).

The definition of “moral turpitude” and the impact of the Galeana case with respect to moral turpitude in the domestic abuse context are discussed […]

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