Immigration Law

  • Peter Spiro (Temple University Law School)

20 Relief from Removal and Regularization of Status 20 Relief from Removal and Regularization of Status

20.1. set-up: relief from removal

set-up: relief from removal

20.2 INA 240A 20.2 INA 240A

INA 240A  [240A markup]

20.3 101(a)(33) [text] 20.3 101(a)(33) [text]

101(a)(33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

20.4 Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) 20.4 Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)

This decision of the Board of Immigration Appeals sets the bar for "exceptional and extremely unusual hardship" under 240A(b). Isolate the approach and various factors in working through the related problem below.

available here 

20.5 Problems 20.5 Problems

Note: for the first two problems you will need to apply 240A(d).

1. Kris was admitted as a lawful permanent resident eight years ago. This year, she was convicted of a controlled substance offense which she committed two years ago. Kris was recently served with a notice to appear in a removal proceeding. Is Kris eligible to apply for cancellation of removal? 
2. Lizbeth was admitted to the United States on a student visa twelve years ago, and became a permanent resident two years ago. She has returned home to France for the month of August every year since she first arrived as a student. Three months ago, Lizbeth was served with a notice to appear beased on alleged smuggling activities (for which she has not been convicted). Do the summer trips render Lizbeth ineligible for cancellation of removal? 
Please work through the following exercise:
3. Sebastian Lopez and Maria Lopez are citizens of Mexico. The Lopezes are married and have three children who are two, five, and seven, all United States citizens. Twenty years ago, Mr. Lopez entered the United States without inspection and has not left the country since. Eight years ago, Ms. Lopez was lawfully admitted as a permanent resident. Two years after becoming a permanent resident, she returned to Mexico for four weeks, and three years after that, she took a trip to Mexico for five months. 
Last month, Mr. and Ms. Lopez were served with notices to appear (NTA). The NTA against Ms. Lopez alleges that she helped a cousin enter the United States illegally six months ago. (She is not facing criminal charges.) The NTA against Mr. Lopez states that he is present in the United States without being admitted or paroled. 
The family lives in Enid, Oklahoma, where Mr. Lopez built a home on a lot purchased six years ago. Mr. Lopez is a self-employed carpenter, earning about $45,000 a year. The family has assets of around $150,000, including the equity in their home.

If the Lopezes were removed to Mexico: 

-- They would be forced to sell their home at a loss.

-- Mr. Lopez's income would be reduced substantially. The evidence of economic hardship is supported by an affidavit from an economist who specializes in Latin America.

-- The three children speak Spanish, but they are currently enrolled in American schools, and none reads or writes Spanish. They have never visited or lived in Mexico. Teachers have provided affidavits detailing the diminished educational opportunities available in Mexico and the serious emotional difficulty that the children would suffer if their parents were removed and they accompanied the family to Mexico.

-- An affidavit from a licensed psychologist also concludes that the family would suffer severe emotional and psychological consequences if forced to return to Mexico.

-- Ms. Lopez's mother is an LPR living in the United States, and her brother is a U.S. citizen. The Lopezes also have significant family ties in Mexico.

-- The family would leave behind many friends and relatives. For example, the vice president of the local bank, who financed the mortgage on the purchase of the Lopez's home, would testify that the family "would be an asset to any country in which they chose to live. He takes pride in his work, and his word is his bond.” A ranch owner who employed both Mr. and Ms. Lopez in the past, would state: “I have had continuous contact with the Lopez family over the past decade. I consider them to be outstanding people who would be a great asset to American society. They are hardworking, and persons of the highest moral caliber. They have assimilated themselves well into our society.” The Lopezes are active members of the local Catholic Church as well as the parent association at their children's school.

Assess the propsects for the Lopezes to remain in the United States. Would it make any difference if the youngest child had a rare blood disorder for which adequate treatment would be unavailble in Mexico?