Cancellation of Removal for Non-LPRs (Cancelation-B).
TABLE OF CONTENTS
I. Introduction
II. Eligibility Requirements for Cancellation-B
a. Individuals Disqualified from Cancellation-BIII. Cancellation of Removal for non-LPRs and Suspension of Deportation
b. Marriage Fraud
c. Burden of Proof
d. Continuous Physical Presence and the Stop Time Rule
a. Extreme Hardship and Exceptional and Extremely Unusual HardshipIV. Exceptional and Extremely Unusual Hardship
b. Continuous Physical Presence
c. Violence Against Women Act (VAWA) Cancellation [INA § 240A(b)(2)]
d. Treatment where Criminal Grounds are Charged
e. Numerical Limitations
f. Petty Offense Exception
g. Divisible Statutes
h. Conditions to Relief
a. Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) – The Human Rights DimensionV. Establishing Good Moral Character (GMC)
b. Matter of Arellano-Murillo, A75 309 149, 26 Immigr. Rep. B1-42 (BIA Sept. 30, 2002)
c. Totality of Hardship Factors
a. Bars to GMCVI. Suspension of Deportation and Special Rule Cancellation of Removal Under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA)
b. GMC Adjudication
a. General Eligibility RequirementsVII. VAWA Cancellation of Removal
b. Derivatives
c. Non-Derivative Sons and Daughters
d. Stop-Time Rule
e. Aggravated Felonies
f. Presumption of Extreme Hardship
g. Showing Hardship in Non-Presumption Cases
h. Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)
i. Matter of Pilch, 21 I&N Dec 627 (BIA 1996)
j. Extreme Hardship in NACARA Suspension and Special Rule Cancellation of Removal Cases
k. Special Procedural Concerns
a. General Eligibility RequirementsVIII. Important Case Law
b. Extreme Hardship
c. Continuous Physical Presence
d. Good Moral Character (GMC)
e. Not Inadmissible or Deportable on Certain Criminal Grounds
f. Stop-Time Rule
a. Overview of Changes in Cancellation-B Eligibility Interpretation
b. Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
c. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010)
d. Summary
I. Introduction:
Cancellation of removal for aliens who are not lawful permanent residents (cancellation-B or cancellation of removal, part-B) is a defensive form of immigration relief that an alien may apply for before an immigration judge when embroiled in removal proceedings. Since cancellation-B may only be granted by an immigration judge, an alien cannot seek it outside of removal proceedings. When granted, cancellation-B effectively cancels the removal of an alien in removal proceedings, and it makes him or her eligible for lawful permanent resident (LPR) status. The provisions for cancellation of removal for LPRs (cancellation-A) and cancellation B were created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and essentially replaced the now defunct suspension of deportation relief that was found in the now obsolete INA § 212(c).
II. Eligibility Requirements for Cancellation-B
a. Eligibility for cancellation-B:
Cancellation-B is found in INA § 240A(b). The statute lists the following eligibility requirements for cancellation-B:
1. The alien must have been physically present in the United States for at least 10 years immediately preceding the date he or she applies for cancellation of removal [brief, innocent, and casual absences of up not exceeding 90 days, or for the 10 years not exceeding 180 days in the aggregate, are permitted];
2. The alien has been of good moral character (GMC) for the statutorily required[1] period of continuous physical presence;
3. The alien has not been convicted of an offense listed under INA § 212(a)(2), INA §§ 237(a)(2) or (3);[2] and
4. The alien establishes that his or her removal would result in “exceptional and extremely unusual hardship” to a spouse, parent, or child, who is either a U.S. citizen (USC) or LPR.
b. Individuals Disqualified from Cancellation-B:
INA § 240A(b)(1)(C) disqualifies the following individuals from applying for cancellation-B:
1. Aliens who are inadmissible under INA §212(a)(2);There is a limited exception to the above CIMT penalties that is called the “petty offense” exception to inadmissibility. In essence, the statutes allow for a one time “free pass” from inadmissibility for individuals who either are convicted of a CIMT, or who had admit to having committed the essential elements of a CIMT, when the conviction carried a potential sentence of no longer than a year of incarceration and when the actual punishment imposed was less than 6 months of imprisonment.
2. Aliens who are deportable under INA §§ 237(a)(2) and (3) for offenses that may include, among other things, convictions for criminal offences that are considered crimes of moral turpitude (CIMT);
3. Aliens who have admitted to having committed the essential elements of a CIMT and are inadmissible on account of the CIMT; and
4. Aliens who are deportable on account of a conviction for a CIMT, provided that the offense was punishable by at least one year in prison, and the crime that led to the conviction had been committed within five years of the alien’s admission into the United States.
c. Marriage Fraud
If an alien is found to have committed marriage fraud, he or she is not outright barred from seeking cancellation of removal because INA §240(A) does not explicitly mention marriage fraud. In theory, provided that the alien is otherwise eligible for cancellation-B and has not, in the previous 10 years of continuous physical presence, given false testimony pertaining to the sham marriage, he or she is eligible for cancellation of removal. However, having committed marriage fraud significantly reduces an alien’s credibility in the eyes of an immigration judge. For this reason, the alien would need significant corroborative evidence to establish GMC. Even under the best circumstances, a finding of marriage fraud is highly detrimental to an application for cancellation of removal.
Moreover, aliens who were previously convicted for marriage fraud would likely be unable to obtain a grant of cancellation of removal. Convictions for marriage fraud carry a maximum sentence of 5 years in prison. As such, a marriage fraud conviction would be considered, at the very least, a CIMT. The conviction would also render the alien inadmissible for fraud and misrepresentation of a material fact, and may even, depending on the circumstances, be considered an aggravated felony.
d. Burden of Proof.
1. The Burden of Proof is on the Alien. The Board of Immigration Appeals (BIA) has interpreted the REAL ID Act of 2005 to place a burden of proof on the applicant for cancellation-B eligibility relief. In the Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), the BIA held that the burden requires the applicant to prove that he or she has not been convicted of a crime described in the INA §§ 212(a)(2), 237(a)(2) and (a)(3).
2. No Benefit of the Doubt in Divisible Statute Situations. The BIA has held that the alien still has the burden of proof when a statute “divisible,” that is when some parts of a statute address CIMT offenses while other parts do not. The Board held that the burden was still on the alien to prove, with applicable evidence, that the offense he or she committed was not a CIMT. This is currently true for cancellation-B despite the fact that immigration laws generally give the benefit of the doubt to the alien in determining whether he or she is inadmissible due to a conviction covered by a divisible statute.
3. Limitation of Petty Offense Exception. The Board held that the petty offence exception to inadmissibility might not apply in scenarios when an alien is convicted of an offence that carried a potential sentence of at least one year, and could be found among offenses described in INA §§212(a)(2), 237(a)(2) or (a)(3).
4. Conviction of for Crime Described in Statutes. The BIA held in Matter of Cortez, 25 I& Dec. 301 (BIA 2010), that when deportability applies, a conviction for a crime described in INA §§212(a)(2), 237(a)(2) or (a)(3), would disqualify the alien form being granted cancellation-B even if the crime was committed outside of the five-year-after-admission window. The Board held that the only information relevant to a determination of a disqualification from eligibility for cancellation-B is whether the crime was CIMT, and whether the maximum possible sentence for the crime exceeded 1 year. Whether the crime actually rendered the alien deportable is not relevant to whether the alien is eligible for cancellation of removal.
e. Continuous Physical Presence and the Stop Time Rule:
Certain events stop the clock on an alien’s accrual of physical presence for purpose of the 10-year requirement for eligibility for cancellation-B.
1. The issuance of a notice to appear (NTA), signifying the commencement of removal proceedings against the alien, stops the alien from accumulating continuous physical presence. However, if the NTA is subsequently terminated by an immigration judge, the period from the issuance of the NTA to its termination would count as continuous physical presence, and the alien would be able to accrue more continuous physical presence after the termination.
2. If the alien commits a criminal offense that causes inadmissibility or deportability based on certain criminal or security grounds, the clock stops on his or her continuous physical presence.
3. If the alien accepts a grant of voluntary departure (VD), that stops the accrual of continuous physical presence. The clock on continuous physical presence is stopped in this scenario even if the VD was granted by Department of Homeland Security (DHS) outside of removal proceedings.
4. Finally, if DHS issues an expedited removal order, this also stops the accrual of physical presence.
5. Collectively, these factors that stop the accrual of physical presence are known in immigration law as the “stop time rule.”
III. Cancellation of Removal for non-LPRs and Suspension of Deportation
As noted in the introduction, cancellation-B, which became law under the IIRIRA, replaced the older form of relief from deportation, suspension of deportation. Cancellation of removal is significantly more difficult to obtain than suspension of deportation was. The following provisions are significant in demonstrating why cancellation-B is more difficult to obtain than suspension of deportation.
Aliens who are still in deportation proceedings (commenced prior to April 1, 1997) are subject to the rule that continuous physical presence is brought to an end by the service of the charging document (Order to Show Cause).
a. Extreme Hardship and Exceptional and Extremely Unusual Hardship
While eligibility for suspension of deportation required that the applicant demonstrate that his or her removal would cause “extreme hardship” to a qualifying relative, the applicant must demonstrate “exceptional and extremely unusual hardship” in order to be granted cancellation of removal. The latter standard sets a much higher bar for the applicant than is required in order to demonstrate traditional extreme hardship.
The BIA held in In re Gomez, 23 I&N Dec. 893 (BIA 2006), that the change hardship standards only applied to continuous physical presence requirement, and had nothing to do with the other cancellation-B eligibility requirements, including the GMC requirement.
Moreover, the statute for suspension of deportation permitted the suspension application to use “hardship to the alien” as well as hardship to the applicant’s qualifying relative in order to meet the hardship requirement. In contrast, the statute for cancellation-B explicitly excludes the alien from the list of qualifying relatives, thus requiring the alien to meet the requirement solely by demonstrating that his or her qualifying relative would incur the requisite hardship.[3]
b. Continuous Physical Presence
While only seven years of continuous physical presence was required immediately prior to applying for suspension of deportation, ten years is required for cancellation-B. Furthermore, the service of an NTA did not end physical presence for suspension of deportation.[4]
The “brief, casual and innocent” absences rule applied for applicants for suspension. For applicants for cancellation B, individual absences cannot exceed 90 days and total absences cannot exceed 180 days.[5]
c. Violence Against Women Act (VAWA) Cancellation [INA § 240A(b)(2)]
Battered spouses and children are only required to show extreme hardship to themselves, similar to the old suspension of deportation standard.[6] Furthermore, they are only required to demonstrate 3 years of continuous physical presence,[7] and the service of the NTA does not stop time.[8]
d. Treatment where Criminal Grounds are Charged
Notice that distinct treatment exists for both suspension of deportation and special rule cancellation of removal[9] applicants who are removable on criminal grounds. To be eligible for standard special rule cancellation of removal or suspension of deportation (requiring seven years continuous physical presence and extreme hardship to the alien or to an LPR or USC spouse, parent or child), the alien must not be inadmissible or deportable under INA §§ 212(a)(2) or 237(a)(2) [relating, among other things, to those convicted of CIMT’s, controlled substances offences or aggravated felonies].[10] Those who are inadmissible or deportable on criminal were eligible for relief under [superseded] INA § 244(a)(2), and are currently eligible under section 309(f)(1)(B) IIRIRA, provided that they have not been convicted of an aggravated felony.[11] In order to be eligible, applicants must show that they have 10 years of continuous physical presence since the time of the criminal conduct giving rise to inadmissibility or deportability, and that extremely unusual and exceptional hardship would result in the event of removal either to the alien (for suspension only) or to a spouse, parent or child who is a USC or an LPR.[12]
e. Numerical Limitations
The number of available grants of cancellation-B is annually capped at 4,000.[13] The cap also applies to suspension of deportation grants.[14] This includes those granted VAWA Cancellation under INA § 240A(b)(2). However, this cap does not apply to those granted suspension of deportation or Special Rule Cancellation of Removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA).
f. Petty Offense Exception
The “petty offense” exception existing under section 212(a)(2) is not available to a Cancellation B claimant, regardless of whether the applicant is inadmissible or deportable, since the preclusion is a descriptive term setting forth eligibility requirements for relief rather than a term under which one seeks to establish a basis for removability.
g. Divisible Statutes
Where the alien has been convicted under a “divisible” statute, which arguably covers both CIMT offenses as well as non-CIMT offenses, the alien bears the burden of establishing that he or she was convicted under the non-CIMT portion of the statute. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) further refined Matter of Almanza to hold that, in determining whether an offense was “described under” sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA, “only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed would be considered.” In making this determination, statutory language requiring that a CIMT be committed “within five years … after the date of admission” would not be considered. However, an alien’s conviction for a CIMT will not preclude him or her from applying for cancellation B if the offense carries a maximum sentence of less than one year, and qualifies for the “petty offense” exception under section 212(a)(2)(A)(ii)(II).[15]
h. Conditions to Relief
Certain persons are ineligible for both cancellation and suspension, regardless of any other circumstance:
- J-1 Bar: Exchange visitors who are subject to the 2-year foreign residence requirement are not eligible.[16]
- D-1 Bar: Crewmen who enter as D-1’s (or in transit without visa under the C-1 class in their capacity as crewmen) cannot apply.[17]
- INA § 101(f) Requirement: Applicants for both cancellation-B and suspension of deportation must show good moral character [INA § 101(f)] for the relevant statutory period.[18]
IV. Extremely Unusual and Exceptional Hardship
There is little judicial precedent with respect to what constitutes “exceptional and extremely unusual hardship” under the statute for cancellation-B. However, under old case law interpreting a prior legislative scheme based upon the “extremely unusual and exceptional hardship” test, we see scenarios that the BIA has previously found to have met that standard:
- The applicant’s earnings were small, and he demonstrated that he would be unable to support his USC wife and citizen children because of poor economic conditions in the home country.[19]
- Applicant had been a long-term resident of the U.S. whose dependent wife and children would suffer, in part, because of the wife’s incapacity arising from mental illness.[20]
a. Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) – The Human Rights Dimension
Starting with Matter of Recinas, the BIA began to emphasize a human rights dimension in determining eligibility for cancellation of removal by focusing on conditions in the country of return.[21] Matter of Recinas concerned a Mexican national who was the mother of six children. She argued that her return to Mexico would cause exceptional and extremely unusual hardship to four of those children who were USCs. She was divorced from the children’s father, who was a USC, and was able to demonstrate that, if she were removed, there would be no one to care for her children [specifically her USC children, who served as qualifying relatives]. She maintained a business which yielded net profits of $400 to $500 a month. Holding that, in Cancellation of Removal claims, “consideration should be given to the age, health and circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions in the country of return might affect those relatives,” the Board concluded:
“The respondent’s ability to provide for the needs of her family will be severely hampered by the fact that she does not have any family in Mexico who can help care for her six children. As a single mother, the respondent will no doubt experience difficulties in finding work, especially employment that will allow her to continue to provide a safe and supportive home for her children.”[22]
b. Matter of Arellano-Murillo, A75 309 149, 26 Immigr. Rep. B1-42 (BIA Sept. 30, 2002)
Another, non-precedent case, decided by the Board in 2002 showed similar human rights concerns in the adjudication of cancellation-B claims. Matter of Arellano-Murillo involved a non-resident father, who had, together with his LPR wife, three U.S. citizen children, one aged 11 and twins both aged 15.[24]
The Board concluded that, were the husband to be removed, his wife and children would have to accompany him to Mexico because the wife would not be able to support the family economically in the United States without the husband’s assistance. The Board then determined that the wife would experience extremely unusual and exceptional hardship because removal would:
- Cause the wife to lose her LPR status, and consequently her opportunity to become a USC;
- Force her to leave behind numerous LPR family members in the United States
Mexico. The Board noted that the father would “have a hard time” supporting the children in
Mexico. Ensuing hardship to his children would thus include significant financial insecurity, as well as loss of health care and educational opportunities. Removal of the father would entail, for the children, separation from “their schools, friends, extended family, and the only world they have ever known.”
c. Totality of Hardship Factors
Factors supporting a finding of “extreme hardship” are cumulative. Thus, it is an error for an immigration judge to look at the factors severally and conclude that none of them individually meet the hardship standard. The judge must look at the factors cumulatively in order to make a determination on whether the statutory standard has been met.[25]
Several courts have concluded that Cancellation, Part B claims are not subject to federal court review because the determination of “exceptional and extremely unusual hardship” to a predicate relative entails a “subjective, discretionary” judgment.[26]
V. Establishing Good Moral Character (GMC)
a. Bars to GMC
The GMC requirement is set forth in INA § 101(f). The following aliens are barred from establishing GMC:
- Habitual drunkards;[27]
- Those excludable as criminals, smugglers, arriving aliens previously removed;[28]
- Those dependent on illegal gambling, or who have been convicted of two or more gambling offenses;[29]
- Those who give false testimony to obtain a benefit under INA;[30]
- Those confined for 180 days or more as the result of a conviction;[31]
- Those convicted of an aggravated felony.[32]
b. GMC Adjudication
The immigration judge is not limited to determining whether the applicant falls within the express bars, but may also look at other factors.[33] However, the Ninth Circuit has found that one instance of the BIA’s denying a motion to reopen by respondents seeking to apply for cancellation-B was an abuse of discretion because the BIA failed entirely to take into account the “social and humane” considerations underpinning the respondents’ substantive claims.[34]
Moreover, the bar to review does not include non-discretionary issues, and it does embrace constitutional and legal challenges to the Board’s application of statutory standards.[35] The IJ must balance the adverse factors supporting the bar to establishing GMC with the respondent’s immigration history taken as a whole,[36] especially when an immigration judge bases a finding of a bar to establishing GMC on a single adverse factor.
PART 2
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1 INA § 212(a)(2) includes provisions that aliens who commit crimes involving moral turpitude, crimes involving controlled substances, or who have multiple criminal convictions, are inadmissible. INA §§ 237(a)(2) and (3) contain provisions that aliens who commit or attempt to commit the crimes listed in INA § 212(a)(2), or certain other offenses including, but not limited to, aggravated felonies, high speed flight, failure to register as a sex offender, certain firearem offenses, trafficking, domestic violence and document fraud, are deportable.
2 Compare [superseded] INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(1)(D), 8 USC § 1229b(b)(1)(D)
3 Compare [superseded] INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(1)(A), 8 USC § 1229b(b)(1)(A).
4 Compare [superseded] INA § 244(b)(2), 8 USC § 1254(b)(2) and INA § 240A(d)(2), 8 USC § 1229b(d)(2).
5 Compare [superseded] INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(2)(A)(v), 8 USC § 1229b(b)(2)(A)(v).
6 Compare [superseded] INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(2)(A)(ii), 8 USC § 1229b(b)(2)(A)(ii).
7 INA § 240A(b)(2)(B), 8 USC § 1229b(b)(2)(B).
8 See 8 C.F.R 240.66 for special rule cancellation; covered in statutes by section 203 of NACARA
9 See Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), [The BIA held that for Cancellation Part B applications governed by the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (i.e., applications filed after May 11, 2005), the claimant must affirmatively prove that he is neither inadmissible under section 212(a)(2) nor deportable under section 237(a)(2) to establish eligibility for relief].
10 Pub. L. No. 104-208 (110 Stat. 3009-625).
11 Compare [superseded] INA § 244(a)(2), 8 USC § 1254(a)(2) and section 309(f)(1)(A)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act.
12 21 INA § 240A(e)(1), 8 USC § 1229b(e)(1).
13 8 C.F.R. § 240.21(c)
14 See Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010)
15 Compare [superseded] INA § 244(f)(2), 8 USC § 1254(f)(2) and INA § 240A(c)(2) 8 USC § 1229b(c)(2).
16 Compare [superseded] INA § 244(f)(1), 8 USC § 1254(f)(1) and INA § 240A(c)(1), 8 USC § 1229b(c)(1).
17 Compare [superseded] INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(1)(B), 8 USC § 1229b(b)(1)(B).
18 Matter of W-, 5 I&N Dec. 586 (BIA 1953).
19 Matter of M-, 5 I&N Dec. 448 (BIA 1953).
20 See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).
21 Matter of Recinas distinguished two prior highly restrictive decisions of the BIA interpreting the statutory standard for cancellation-B: Matter of Monreal, 23 I&N Dec. 56 (BIA 2001); and Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).
22 It has been plausibly argued that customary international law should play some role in the “hardship” analysis, including the mandate of the Convention on the Rights of the Child that the “best interests of the child” be observed in all instances. See Cf. Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005) [holding that whether the Board interpreted the “extremely unusual and exceptional hardship” standard consistently with general international law constituted a reviewable legal question, but finding the Convention offered little practical guidance under the facts of the case]. Also of persuasive guidance is the customary law emanating from the International Covenant on Economic, Social and Cultural Rights, which emphasizes that “the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” Rights (ICESCR), adopted 16 Dec. 1966, entered into force 3 Jan. 1976, G.A. Res. 2200A (XXI), UN Doc. A/6316 (1966), 993 UNTS, reprinted in 6 ILM 360 (1967). If the rights protected under the ICESCR, specifically the right to be free from hunger (art. 11), the right to enjoy the highest standard of physical and mental health (art. 12), and the right to education (art. 13), are not protected in the state of return so as to impact a predicate relative, the case is appropriate for humanitarian relief under cancellation of removal, part B. Also relevant to the analysis are Roosevelt’s Four Freedoms, including “the freedom from want, which translated into world terms, means economic understanding which will secure to every nation a healthy peaceful life for its inhabitants –everywhere in the world.” Franklin Delano Roosevelt, State of the Union Message to Congress (“The Four Freedoms”), January 6, 1941, reprinted in John Grafton (ed.), Franklin Delano Roosevelt Great Speeches 92, 98 (1999).
23 Matter of Arellano-Murillo, A75 309 149, 26 Immigr. Rep. B1-42 (BIA Sept. 30, 2002). The case is digested in 5 Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure § 64.04(3)(b)(iv) (Matthew Bender, Rev. Ed.).
24 Gomez-Rosales v. INS, 122 F.3d 1071 (9th Cir. 1997).
25 See generally, De La Vega v. Gonzalez, 436 F.3d 141 (2nd Cir. 2006)
26 INA § 101(f)(1)
27 INA § 101(f)(3)
28 INA § 101(f)(4) and (5)
29 INA § 101(f)(6)
30 INA § 101(f)(7)
31 INA § 101(f)(8)
32 De La Vega v. Gonzalez, 436 F.3d 141 (2nd Cir. 2006); Gonzalez-Oropeza v. Att’y Gen.. 321 F.3d 1331 (11th Cir. 2003); Romero-Torres v. Ashcroft, 346 F.3d 873 (9th Cir. 2003).
33 Franco-Rosendo v. Gonzales, 2006 WL 1984595 (9th Cir. 2006)
34 Sumbundu v. Holder, 602 F.3d 733, 735-36 (2d Cir. 2010)
35 Torres-Gusman v. INS, 804 F.2d 531 (9th Cir. 1986).
36 NACARA § 203(b), amending IIRIRA § 309
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