Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
66
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 herCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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.Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
68
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.Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
69
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 Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
(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).Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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);Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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 244Cite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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 reauthorizedCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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 aCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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 aliensCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
76
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 ofCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
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
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 factorsCite as 25 I&N Dec. 66 (BIA 2009) Interim Decision #3653
78
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.