A-M

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

Matter of A-M-, Respondent

Decided September 21, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Notwithstanding the heading of section 240A(b) of the Immigration and Nationality Act,

8 U.S.C. § 1229b(b) (2006), which only refers to nonpermanent residents, a lawful

permanent resident who qualifies as a battered spouse may be eligible to apply for

cancellation of removal under section 240A(b)(2) of the Act.

(2) Given the nature and purpose of the relief of cancellation of removal for battered

spouses under section 240A(b)(2) of the Act, such factors as an alien’s divorce from an

abusive spouse, remarriage, and previous self-petition for relief based on the abusive

marriage are relevant in determining whether an application for that relief should be

granted in the exercise of discretion.

FOR RESPONDENT: Chris A. Chouteau, Esquire, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert B. Wities, Assistant

Chief Counsel

BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.

COLE, Board Member:

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.

I. FACTUAL AND PROCEDURAL HISTORY

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

66

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

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.

1

The respondent’s applications for relief were filed on or after May 11, 2005. Accordingly,

her claims are governed by the amendments to the Act brought about by the REAL ID Act

of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302.

67

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

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.

II. ISSUES

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.

68

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

III. STANDARDS OF REVIEW

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).

IV. ANALYSIS

A. Termination of Lawful Permanent Resident Status

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).

B. Special Rule Cancellation of Removal Under

Section 240A(b)(2) of the Act

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

69

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

(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 continuous physical presence in the United States;

(iii) the alien has been a person of good moral character during such period,

subject to the provisions of subparagraph (C);

(iv) the alien is not inadmissible under paragraph (2) or (3) of section 212(a),

is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a) . . .

and has not been convicted of an aggravated felony; and

(v) the removal would result in extreme hardship to the alien, the alien’s child,

or the alien’s parent.

The statutory text of section 240A(b) of the Act does not specifically

prohibit lawful permanent residents from applying for special rule cancellation

of removal. In fact, the text does not require applicants to show any particular

immigration status. Because the heading of the section is Cancellation

of Removal for Certain Nonpermanent Residents, however, it appears

to be at odds with the statutory text. Accordingly, because this appeal

involves difficult issues of statutory interpretation and the effect of legislative

amendments, we find it useful to review the evolution of section 240A(b)(2).

1. Legislative Framework of Section 240A(b)(2) of the Act

The battered spouse provisions were first added to the Immigration

and Nationality Act as part of the Violence Against Women Act of 1994

(“VAWA”), which was enacted as Title IV of the Violent Crime Control and

Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1902.2

At that time, aliens were still placed in exclusion or deportation proceedings,

and removal proceedings, which included the relief of cancellation of removal,

did not yet exist. See former sections 236, 242B of the Act, 8 U.S.C. §§ 1226,

1252b (1994).

2

In the immigration context, the VAWA created several forms of relief specifically for

battered spouses, including adjustment of status and suspension of deportation. The

provision creating suspension of deportation for battered spouses, former section 244(a)(3)

of the Act, 8 U.S.C. § 1254(a)(3) (1994), which is the precursor to section 240A(b)(2), was

enacted as section 40703(a)(3) of the Violent Crime Control and Law Enforcement Act of

1994, 108 Stat. at 1955. See H.R. Rep. No. 104-828, at 214 (1996) (Conf. Rep.) (Joint

Explanatory Statement), 1996 WL 563320, at *214.

70

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

Aliens seeking relief from exclusion or deportation could apply for,

inter alia, a waiver under former section 212(c) of the Act, 8 U.S.C. § 1182(c)

(1994), or suspension of deportation under former section 244(a) of the Act,

8 U.S.C. § 1254(a) (1994). Only aliens “lawfully admitted for permanent

residence” were eligible to apply for a waiver under former section 212(c),

whereas suspension of deportation was available to any alien. See Matter of

Anwo, 16 I&N Dec. 293, 297 (BIA 1977) (stating that suspension of

deportation is “potentially available to the class of aliens, whether in illegal,

nonimmigrant, or resident status”); see also, e.g., Hernandez de Anderson

v. Gonzales, 497 F.3d 927, 929, 932, 936, 943-44 (9th Cir. 2007); Matter of

Ponce de Leon, 21 I&N Dec. 154, 168, 169 n.2 (BIA 1996, 1997; A.G. 1997)

(Filppu, Board Member, concurring); Matter of E-, 9 I&N Dec. 372 (BIA

1961).

Before the VAWA was enacted, suspension of deportation existed in two

forms under former sections 244(a)(1) and (2) of the Act. Former section

244(a)(1) required at least 7 years of continuous physical presence in the

United States; good moral character for that time period; and a showing of

extreme hardship to the alien or to his or her spouse, parent, or child who was

a United States citizen or lawful permanent resident. Former section 244(a)(2)

required at least 10 years of continuous physical presence in the United States;

good moral character for that time period; and a showing of exceptional and

extremely unusual hardship to the alien or to his or her spouse, parent, or child

who was a United States citizen or lawful permanent resident.

In 1994, the VAWA amended the Act to add a third form of suspension of

deportation for battered spouses. Former section 244(a)(3) provided that relief

could be available to an alien who

is deportable under any law of the United States . . . ; 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; has been battered or subjected to extreme

cruelty in the United States by a spouse or parent who is a United States citizen or

lawful permanent resident (or is the parent of a child of a United States citizen or

lawful permanent resident and the child has been battered or subjected to extreme

cruelty in the United States by such citizen or permanent resident parent); and proves

that during all of such time in the United States the alien was and is a person of good

moral character; and is a person whose deportation would, in the opinion of the

Attorney General, result in extreme hardship to the alien or the alien’s parent or child.

There are few published cases interpreting former section 244(a)(3) of

the Act.3 See Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003);

3

There is some guidance for assessing extreme hardship under former section 244(a)(3) of

the Act in the regulations at 8 C.F.R. § 1240.58(c) (2009), but hardship is not at issue in this

case.

71

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003). However, the

language of the statute tracks that of former sections 244(a)(1) and (2) of the

Act, in that all three provisions begin by stating that aliens who are

“deportable” are eligible for relief. Since both lawful permanent residents and

nonpermanent residents could be charged with grounds of deportability and

there are no regulations or case law to the contrary, it appears that relief under

former section 244(a)(3) of the Act, like that under sections 244(a)(1) and (2),

was available to aliens in either status.4 See former section 241 of the Act,

8 U.S.C. § 1251 (1994) (providing that (“[a]ny alien” who was within one of

the classes of deportable aliens was deportable); cf. Matter of Anwo, 16 I&N

Dec. at 297 (stating that suspension of deportation under section 244(a) was

potentially available to aliens in any status).

Furthermore, the legislative history of the VAWA does not indicate that

suspension of deportation under former section 244(a)(3) of the Act should be

unavailable to lawful permanent residents who qualify as battered spouses.

According to the legislative history, the purpose of the VAWA provisions

amending the Act was to permit battered spouses to leave their abusers without

fear of deportation or other immigration consequences. See H.R. Rep. No.

106-939, at 56, 111-12 (2000) (Conf. Rep.) (Joint Explanatory Statement),

2000 WL 1479163, at *56, 111-12; 140 Cong. Rec. H10,693-01 (1994)

(statement of Sen. Schumer), 1994 WL 545675; 140 Cong. Rec. E1364-03

(1994) (statement of Rep. Pelosi), 1994 WL 374941; see also H.R. 1133, 103d

Cong. § 243 (1993); H.R. Rep. No. 103-395 (1993), 1993 WL 484760. Even

aliens who are lawful permanent residents may be forced to rely on an abusive

spouse to petition for them during immigration proceedings if they do not

qualify for relief independently.5

Congress subsequently enacted the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110

Stat. 3009-546 (“IIRIRA”), which replaced exclusion and deportation

proceedings with removal proceedings. Compare former sections 236

and 242B of the Act with sections 239 and 240 of the Act, 8 U.S.C.

§ 1229, 1229a (2006). Congress also deleted former sections 212(c) and 244

4

Although an eligible lawful permanent resident might have opted first to seek a waiver

under former section 212(c) of the Act before applying for suspension of deportation under

former section 244(a), those who could not establish eligibility for a waiver because they

lacked the requisite 7 consecutive years of unrelinquished domicile could still qualify for

relief under former section 244(a)(3) of the Act, which required only 3 years of continuous

physical presence.

5

For example, the respondent is ineligible for cancellation of removal under section 240A(a)

of the Act because she does not have 7 years of continuous residence in the United States

after having been admitted in any status. See Matter of Blancas, 23 I&N Dec. 458 (BIA

2002).

72

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

from the Act and enacted the three provisions under which cancellation

of removal may be granted—sections 240A(a) and (b)(1) and (2) of the Act.

See IIRIRA §§ 304(a)(3), (b), 110 Stat. at 3009-594, 3009-597; 308(b)(7), 110

Stat. at 3009-615. The Conference Report on the IIRIRA states that section

240A(a) of the Act is “intended to replace and modify” former section 212(c),

that section 240A(b)(1) “replaces” former section 244(a), and that section

240A(b)(2) “restates” the battered spouse provision of former section

244(a)(3) of the Act.6 See H.R. Rep. No. 104-828, at 213-14 (1996) (Conf.

Rep.) (Joint Explanatory Statement), 1996 WL 563320, at *213-14.

The battered spouse provision at section 240A(b)(2) of the Act has been

modified twice since the IIRIRA’s enactment. When cancellation of removal

was initially added to the Act in 1996, all three cancellation provisions

began by stating that the Attorney General “may cancel removal in the case

of an alien who is inadmissible or deportable from the United States,” if

certain other criteria were met. In 1997 section 204(b) of the Nicaraguan

Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111

Stat. 2160, 2193, 2201 (1997) (“NACARA”), amended the language of

sections 240A(b)(1) and (2) of the Act by changing the phrase “may cancel

removal in the case of” to “may cancel removal of, and adjust to the status of

an alien lawfully admitted for permanent residence.”7 Thus, the new language

authorized the Attorney General to cancel an alien’s removal and adjust his or

her status to that of a lawful permanent resident. Previously, the Attorney

General could technically only cancel an alien’s removal under section 240A

of the Act.8

In 2000 Congress amended section 240A(b)(2) of the Act to its current

language. At that time, Congress reauthorized the VAWA in Division B of the

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No.

106-386, 114 Stat. 1464, 1491 (“VTVPA”). Title V of the reauthorized

6

Section 240A(a) of the Act replaced and modified former section 212(c), inter alia, by

barring from relief aliens who have been convicted of an aggravated felony, regardless of

prison sentence, and by adding a 5-year lawful permanent residence requirement. Section

240A(b)(1) replaced and modified former sections 244(a)(1) and (2) by deleting former

section 244(a)(1) from the Act and recodifying former section 244(a)(2), which was

amended to provide that aliens may no longer show hardship to themselves and must show

exceptional and extremely unusual hardship to a United States citizen or lawful permanent

resident spouse, child, or parent. See section 240A(b)(1)(D) of the Act.

7

The NACARA’s amendment of sections 240A(b)(1) and (2) of the Act conforms the

language of the statute to that of former section 244(a), which stated that “the Attorney

General may, in his discretion, suspend deportation and adjust the status [of an eligible

applicant] to that of an alien lawfully admitted for permanent residence.”

8

Because we have found that the respondent continues to be a lawful permanent resident,

she does not need to adjust her status and only requires cancellation of removal.

73

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

version of the VAWA, entitled the “Battered Immigrant Women Protection

Act of 2000,” modified section 240A(b)(2) of the Act by adding language

increasing the categories of battered aliens eligible to request special rule

cancellation of removal.9 Id. §§ 1501, 1504, 114 Stat. at 1518, 1522-24.

The VTVPA Conference Report reaffirms that one of the initial purposes

of the VAWA was to eliminate immigration laws preventing battered spouses

and children from leaving abusive relationships or from seeking help from

law enforcement because they were afraid that they would be deported or

that their abusers would withdraw sponsorship for a particular immigration

benefit. See H.R. Rep. No. 106-939, at 56, 111-12. Thus, one of the purposes

of the reauthorized version of the VAWA was to improve access to

immigration relief for groups of battered immigrant spouses and children who

were not previously eligible. See id.; 146 Cong. Rec. S8571-01 (2000)

(statement of Sen. Sarbanes), 2000 WL 1300253; 146 Cong. Rec. S10,188-03

(2000) (statement of Sen. Hatch), 2000 WL 1300253, at *S10,195; 146 Cong.

Rec. E1729-04 (2000), 2000 WL 1505798.

2. Statutory Interpretation

In interpreting section 240A(b)(2) of the Act, we look first to the

plain meaning of its statutory language and give effect to that meaning

when possible. See Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997);

Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004); Matter of

Campos-Torres, 22 I&N Dec. 1289, 1292-93 (BIA 2000); see also Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005)

(stating that in interpreting a statute, the first step is to determine whether the

statute’s plain terms address the question at issue); Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). In

ascertaining the plain meaning of a statute, we consider the particular statutory

language at issue, its context, and the language and design of the statute as a

9

Under former section 244(a)(3) of the Act and the pre-VTVPA version of section

240A(b)(2), battered spouse suspension of deportation and cancellation of removal were

initially available only to individuals whose abusive spouses were currently United States

citizens or lawful permanent residents. The Battered Immigrant Women Protection Act of

2000 expands relief to aliens whose abuser “is or was” a citizen or lawful permanent

resident, and to those battered individuals who intended to be married to their United States

citizen or lawful permanent resident abuser, but whose marriages are not legitimate because

of their abuser’s bigamy. See VTPVA § 1504, 114 Stat. at 1522-24.

74

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

whole. See Robinson v. Shell Oil Co., 519 U.S. at 341; K Mart Corp.

v. Cartier, Inc., 486 U.S. 281, 291 (1988); Nadarajah v. Gonzales, 443 F.3d

1069, 1076 (9th Cir. 2006); Campbell v. Allied Van Lines, Inc., 410 F.3d 618,

621 (9th Cir. 2005); Matter of Campos-Torres, 22 I&N Dec. at 1294; Matter

of Nolasco, 22 I&N Dec. 632, 636 (BIA 1999).

Section 240A of the Act is entitled “Cancellation of Removal; Adjustment

of Status.” The heading of section 240A(a) is “Cancellation of Removal for

Certain Permanent Residents.” This heading accurately describes section

240A(a), which is only applicable to eligible lawful permanent residents. As

previously noted, the heading of section 240A(b) of the Act is “Cancellation

of Removal for Certain Nonpermanent Residents.” However, nothing in the

text of the statute precludes lawful permanent residents from establishing

eligibility for relief under section 240A(b), which is available to any alien who

is “inadmissible or deportable.”10

The Supreme Court has stated that the title of a statute and heading of a

section cannot limit the plain meaning of a statute’s text. See, e.g., INS

v. St. Cyr, 533 U.S. 289, 308-09 (2001) (citing Pennsylvania Dep’t of Corrs.

v. Yeskey, 524 U.S. 206, 212 (1998)); Bhd. of R.R. Trainmen v. Baltimore

& Ohio R.R. Co., 331 U.S. 519, 528-29 (1947). However, the title of a statute

and heading of a section may be referred to when they shed light on

an ambiguous word or phrase within the statutory text. See, e.g., Carter

v. United States, 530 U.S. 255, 267 (2000); Campbell v. Allied Van Lines, Inc.,

410 F.3d at 621-22 (citing Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R.

Co., 331 U.S. at 528-29); Matter of Anifowoshe, 24 I&N Dec. 442, 443 (BIA

2008). In this case we find no ambiguity within the statutory text of either

section 240A(b)(1) or (2) of the Act. The language of both provisions states

that “an alien who is inadmissible or deportable from the United States” may

seek relief if certain other criteria are met. Sections 240A(b)(1), (2)(A) of the

Act. This language is clear and in no way prohibits lawful permanent residents

from applying for relief under section 240A(b)(2). Furthermore, we find

nothing ambiguous about the text of the statute within the context and design

of section 240A as whole. See Robinson v. Shell Oil Co., 519 U.S. at 341.

Section 240A(a) creates a form of relief from removal for which only aliens

10

As we noted in regard to former section 212(c) of the Act, a lawful permanent resident

may be more likely to seek cancellation of removal under section 240A(a) of the Act. See

supra note 4. However, relief under that section may not be available, for example, where

a lawful permanent resident has not yet accrued the 5 years of lawful permanent resident

status required by section 240A(a)(1) or the 7 years of continuous residence in any status

required by section 240A(a)(2). In such cases, section 240A(b)(2) may provide alternative

relief.

75

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

who have lawful permanent resident status are eligible, while section 240A(b)

provides relief for which both permanent and nonpermanent residents may be

eligible.

Additionally, preventing lawful permanent residents from applying for

cancellation of removal as battered spouses would be contrary to the legislative

history of section 240A of the Act. As noted above, the legislative history of

the IIRIRA indicates that section 240A(b)(2) was meant to “restate” former

section 244(a)(3) of the Act. See H.R. Rep. No. 104-828, at 214. Since relief

under former section 244(a) was not limited to nonpermanent residents, relief

under section 240A(b)(2) of the Act also should not be. Moreover, the

legislative amendments to section 240A(b)(2) indicate that Congress has only

ever intended to expand the relief available to aliens who are battered by

their spouses. Given this history, it seems unlikely that when Congress was

broadening the relief available to battered spouses, it would have intended to

make lawful permanent residents, who were previously eligible for suspension

of deportation under former section 244(a)(3) of the Act, ineligible for

cancellation of removal under section 240A(b)(2).

Consequently, notwithstanding the heading of section 240A(b) of the Act,

which only refers to nonpermanent residents, we find that lawful permanent

residents may be eligible to apply for special rule cancellation of removal for

battered spouses under section 240A(b)(2) of the Act. Accordingly, we

conclude that the respondent is eligible to apply for cancellation of removal

under that section.

3. Discretion

Cancellation of removal, like the relief available under former sections

212(c) and 244(a) of the Act, is a discretionary form of relief. See sections

240A(a), (b)(1), (2) of the Act (stating that the Attorney General “may”

cancel an alien’s removal); see also, e.g., Matter of Sotelo, 23 I&N Dec. 201,

203 (BIA 2001); Matter of C-V-T-, 22 I&N Dec. 7, 10 (BIA 1998). In this

case, the Immigration Judge found that the respondent was deserving of

a discretionary grant of cancellation of removal. As previously noted, we

have authority to review questions of discretion de novo. See 8 C.F.R.

§ 1003.1(d)(3)(ii).

In making discretionary determinations, we weigh the favorable and

adverse factors presented to decide whether “on balance, the ‘totality of the

evidence before us’ indicates that ‘the respondent has adequately demonstrated

that he [or she] warrants a favorable exercise of discretion.’” Matter of Sotelo,

23 I&N Dec. at 204 (quoting Matter of C-V-T-, 22 I&N Dec. at 10). We have

found “‘it prudent to avoid cross-application, as between different types of

76

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

relief from deportation, of particular principles or standards for the exercise of

discretion.’” Matter of C-V-T-, 22 I&N Dec. at 12 (quoting Matter of Marin,

16 I&N Dec. 581, 586 (BIA 1978), in finding that case law applicable to the

exercise of discretion for suspension of deportation should not be applied to

requests for cancellation of removal under section 240A(a) of the Act).

Consequently, factors that we may consider to be favorable or adverse to a

respondent’s application with respect to one form of discretionary relief from

removal may differ from those we consider with respect to another form of

relief. Cf. Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996) (stating that

in the asylum context, the danger of persecution will outweigh all but the most

egregious factors); Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

The positive factors presented in the respondent’s case include her

residence in the United States since 1989, her three children with legal status

living in the United States, and her gainful employment as a housekeeper. The

Immigration Judge also found that her United States citizen son will suffer

extreme hardship if she is removed and noted that she expressed remorse

concerning the reasons for her removability. The negative factors include the

circumstances underlying the respondent’s removability, her failure to provide

evidence that she filed income taxes, and her May 2003 conviction for driving

under the influence.

Furthermore, given that the respondent is seeking relief as the

battered spouse of a lawful permanent resident, we find that there are

additional factors relevant to our consideration. Importantly, the Immigration

Judge found that the respondent divorced her abusive ex-husband in

2004, and that she has already relied on her relationship with her

ex-husband to adjust her status as a VAWA self-petitioner. See sections

101(a)(51), 204(a)(1)(A)(iii), (B)(ii) of the Act, 8 U.S.C. §§ 1101(a)(51),

1154(a)(1)(A)(iii), (B)(ii) (2006). Moreover, the respondent has been

remarried since 2006 and is no longer in an abusive relationship with her

ex-husband.11

Given the underlying purpose of the battered spouse provisions of the Act,

which is to enable aliens to leave their abusive citizen or lawful permanent

resident spouses who may use the threat of deportation or sponsorship for an

immigration benefit to maintain control over them, we find that these factors

11

Congress did not provide specific regulations explicating section 240A(b)(2) of the Act.

However, we observe that the regulations for the self-petitioning provisions of section 204(a)

of the Act state that a self-petitioning spouse must be legally married to his or her abuser at

the time the petition is filed. 8 C.F.R. § 204.2(c)(1)(ii). Furthermore, they state that after

the petition has been properly filed, legal termination of the marriage will have no effect on

the decision made on the self-petition, but that the self-petitioner’s remarriage constitutes a

basis for denial of the self-petition. Id.

77

Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653

weigh heavily against granting the respondent’s request for cancellation of

removal under section 240A(b)(2) of the Act. See H.R. Rep. No. 106-939, at

111-12; H.R. Rep. No. 103-395. The respondent has already obtained a form

of VAWA relief once, has become removable, and has not argued that she

needs or is eligible for VAWA protection in her current relationship. The

VAWA should not be invoked again to benefit an alien when the past abusive

relationship has ended and the former abusive spouse no longer poses a threat.

We recognize that the same factors, namely, the respondent’s divorce,

remarriage, and previous self-petition based on her abusive marriage, may not

be equally relevant to other forms of discretionary relief. However, the

respondent has requested cancellation of removal as a battered spouse, and

such factors are significant to the nature and purpose of the relief she is

seeking.

As a result, despite the respondent’s equities, which are substantial,

we find that on balance, given the adverse factors and the nature of the

relief she is seeking, she has not shown that cancellation of removal under

section 240A(b)(2) of the Act should be granted as a matter of discretion.

Accordingly, we conclude that the Immigration Judge’s grant of relief in the

exercise of discretion was not appropriate. See 8 C.F.R. § 1003.1(d)(3)(ii).

Because we find that the respondent is not deserving of relief under section

240A(b)(2) of the Act as a matter of discretion, we do not find it necessary to

reach the DHS’s arguments regarding the continuance granted by the

Immigration Judge to allow the respondent to establish the requisite period of

good moral character under section 240A(b)(2)(A)(iii). However, because the

Immigration Judge granted the respondent’s request for cancellation of

removal, he did not address the other relief from removal for which she

applied, so we will remand the record to give her an opportunity to pursue

those applications and to address any other issues relevant to these

proceedings.

ORDER: The appeal of the Department of Homeland Security is

sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

78