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Cancellation of Removal (Part IV Good Moral Character
Claribel p. madueña, esq.
Welcome to the final article in our four-part series of cancellation of removal. Briefly, cancellation of removal is a form of immigration relief available to certain foreign nationals that the Department of Homeland Security is seeking to remove from the United States. See Immigration & Nationality Act (INA) §240A. This remedy is only available to individuals in removal proceedings before an immigration judge. Lawful permanent residents (green card holders) and non-residents may apply for cancellation of removal.
To qualify for cancellation of removal as a legal permanent resident [“LPR”], applicants must demonstrate: 1) lawful permanent residency for at least 5 years; 2) continuous physical presence in the United States for at least 7 years after having been lawfully admitted; and 3) no aggravated felony convictions. For applicants with no lawful immigration status [“Non-LPR”], the requirements are more burdensome as the noncitizen must show: 1) continuous physical presence in the U.S. for at least 10 years; 2) no convictions under INA sections 212(a)(2), 237(a)(2), or 237(a)(3); 3) that their removal from the U.S. would cause exceptional and extremely unusual hardship to their U.S. citizen or legal permanent resident spouse, parent, and/or child under 21 years old; and 4) have had good moral character for ten years preceding the adjudication of the application. This article will focus on showing that an applicant is a person of good moral character.
Good Moral Character
To establish good moral character [“GMC”], an applicant must first show that they are “statutorily” qualified, which is defined by statute under section 101(f) of the INA. Second, if the applicant is not statutorily barred, they must convince the Immigration Judge that they have good moral character, which is a discretionary finding. See Section 240A(b)(1).
1. Statutory Requirement
Under the statute, an applicant for non-LPR cancellation must demonstrate that they are a “person of good moral character” during the period “not less than ten years immediately preceding the date of such application.” INA § 240A(b)(1). The ten-year statutory period needed for good moral character is calculated backward from the date on which the application finally is resolved by the immigration judge (IJ) or BIA. Matter
of Ortega-Cabrera, 23 I&N Dec. 793, 798 (BIA 2005). The statutory bars apply only if the disqualifying act happened during the ten years in which GMC is required. A bad act that happened prior to the ten-year period will not bar the person from showing GMC.
It is important to note that this tenyear period for good moral character is different from the ten-year period for continuous physical presence. Indeed, the continuous physical presence stops running when a legally sufficient Notice to Appear is properly served. In contrast, the timeframe for good moral character continues until the final decision and is the ten years immediately preceding the decision of the immigration judge, or BIA if the case is appealed. Id. at 798. This sounds simple enough, but you would be surprised to learn that the ten-year GMC period and physical presence period are at times conflated.
In October 2018, I had an individual hearing for a client we will call Edward. He sustained four driving under the
influence [“DUI”] convictions in 2003, 2005, and 2014. The last arrest and conviction were in 2014, which subsequently led to his immigration removal case. The statutory period for Edward was October 2018 to October 2008. At the final hearing, the Immigration Judge pre-termitted Edward’s application concluding that he was statutorily ineligible for cancellation of removal under the “habitual drunkard” category of INA§ 101(f)(1). The Judge incorrectly considered all four DUI offenses, even though three were outside of the statutory GMC period in 2003 and 2005. While the Court has discretion to consider behavior outside of the GMC period when determining whether an applicant will be granted cancellation of removal, the Court is prohibited from applying discretion when analyzing statutory eligibility. When you are preparing your case, make sure you have all important dates and time periods pinned down. Unsurprisingly, we filed an appeal, and the case was remanded back to the Immigration Court from the BIA.
2. Discretion
While having Edward’s application pre-termitted was a loss, the delay was also a gift. After the remand, we had our second individual hearing in May 2022, approximately four years after the first one. Edward’s last “bad act” in 2014 was now eight years ago, instead of only four. We were able to show more years of rehabilitation
and remorse, which goes directly to discretion. Nonetheless, Edward still has a GMC problem even though he is not barred under 101(f). In assessing good moral character, the Immigration Judge will weigh many factors to make her determination.
To overcome adverse factors during the GMC period, applicants may point to underlying circumstances of the criminal offense and highlight positive factors such as employment history, general compliance with laws, and evidence of support for and from family members, friends, colleagues, and other community members. See Matter of K-, 3 I&N Dec. 180 (BIA 1949). If your client has a criminal history, especially an extensive one, it is critical that you saturate the record with evidence of rehabilitation, ties to the community, employment, and support from family, friends, coworkers, and supervisors. Given Edward’s DUI record, we bolstered his application with redeeming evidence.
a. Evidence of Good Moral Character
Start gathering the evidence early and make sure your client understands what you need! Also, keep in mind that you may need to help them with certain requests. For example, when I request good moral character letters from co-workers, family, and friends, I have a guide that I provide to the client. The guide states the purpose of
the letter and asks the letter writer to share personal anecdotes. Some clients are very cooperative and successful in fulfilling their attorney’s requests, while others are not. I recommend providing your client with a list and examples, so they understand the assignment. I will also reiterate how important it is to start early! Below is a list of evidence you should submit; however, it is non-exhaustive, and I encourage you to get creative!
a. Client declaration. I discussed the importance of a personal statement in a previous article regarding hardship, but it is also necessary that your client show remorse. Judges want accountability, repentance, and reassurance that your client will not commit more crimes.
b. Criminal court completion . In addition to obtaining conviction records, do not forget about the rehabilitative documents, such as: positive probation reports; proof of community service completion, fine payment, class attendance and completion, and counseling. If offenses are alcohol-related, advise your client to attend regular AA meetings in addition to what is necessary to complete probation. c. Statements from family members and close friends. Your client’s immediate family has likely been impacted by the arrests, and their support or lack thereof is telling. Talk to their spouse, children, and anyone that has a close relationship with your client. For my client Edward, we had to reassure the Judge that he would not drink and drive again. His wife and children submitted statements acknowledging Edward’s mistakes, but also expressing their gratitude that he had finally learned his lesson. Edward no longer drinks, does not drive, and has a strong support system, all of which was critical for the Judge.
d. Letters from employers, co-workers, and/or clients. As you know, immigrants are very hard-working so these letters will showcase your client’s work ethic. Also, if your client has received any certificates, training, and/or education, be sure to include as well.
e. Income tax returns. Not only do these records show physical presence, but they also show that your client has contributed to the U.S. economy and paid their “fair share.”
f. School records/ community service. If your client has gone to school, taken English classes, or volunteers, be sure to include with their application. If your client does not work because their spouse is the provider, how active is your client in their children’s school? Or the local church? Ask teachers that know your client to write letters on their behalf. The same is true for clergy or other members of the church. Thank you for embarking on this journey with me. For those of you that are curious, we have not received a decision on Edward’s case, but I remain unabashedly optimistic. I hope that my insight has been helpful, and remember, “learn the law, obsess over the facts!”
About the Author
Claribel P. Madueña is a Board- Certified Legal Specialist in Immigration & Nationality Law. She is a solo practitioner in the Bay Area with more than 10 years of experience representing immigrants and their families. Her practice primarily focuses on family-based immigration and removal defense.
