BIA: "Unusual or Outstanding Equities" Requirement Not Applicable to LPR Cancellation Adjudications

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: "UNUSUAL OR OUTSTANDING EQUITIES" REQUIREMENT NOT APPLICABLE TO LPR CANCELLATION ADJUDICATIONS (MATTER OF SOTELO-SOTELO)
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

The Board of Immigration Appeals has issued a precedent decision concerning the standard for adjudicating applications for cancellation of removal for lawful permanent residents under section 240A(a) of the Immigration and Nationality Act. The ruling finds that the requirement of "unusual or outstanding equities" that the BIA developed in adjudicating applications for waivers under former section 212(c) of the INA in cases involving serious criminal convictions does not apply to the adjudication of LPR cancellation applications. Instead, in every case the respondent's positive equities must be balanced against the negative equities, including the seriousness of the conviction.

The decision was issued in the case of a Mexican national, a Mr. Sotelo, who adjusted to LPR status in 1990. In July 2000, he was convicted of possessing and passing fraudulent resident alien cards, failing to provide migrant workers with terms and conditions of employment, and aiding and abetting illegal entry. He received eight-month sentences for the first two offenses and a six-month sentence for the third offense, all to run concurrently.

The Immigration and Naturalization Service initiated removal proceedings based upon Sotelo's criminal convictions, and he applied for cancellation of removal. At his removal hearing he testified that during 1998 and 1999 he had transported smuggled undocumented immigrants for a fee, charged them for rent and transportation, and sold them fraudulent green cards and Social Security cards.

The immigration judge considered both positive and negative equities presented by Sotelo's case. In deciding to deny the cancellation application, the IJ stated that because of the criminal convictions Sotelo had to show "outstanding equities," and the judge concluded that he had failed to do so. Sotelo appealed this decision to the BIA.

In issuing its decision on the appeal, the BIA first discussed the standards applicable to the adjudication of cancellation of removal cases for LPRs. This form of relief for LPRs was established by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). In Matter of C-V-T-, Int. Dec. 3342 (BIA 1998), the BIA held that the general standards that the BIA developed for exercising discretion under former INA section 212(c), as explained in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978), apply to LPR cancellation cases. Under these standards, positive equities must be balanced against negative equities. As the BIA noted in Marin, in cases with only minor adverse factors, the equities inherent in an applicant's meeting the statute's eligibility requirements "may be sufficient in and of themselves to warrant favorable discretionary action." Id. at 585. However, the positive equities that an applicant must present "will depend in each case on the nature and circumstances of the ground of [removability] sought waived and on the presence of any additional adverse matters" [sic]. Id.

In a number of 212(c) cases, the BIA found that a respondent who had committed a serious criminal offense must demonstrate "unusual or outstanding equities" in order to merit relief. Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 628 (BIA 1988). In Edwards, the BIA clarified that this requirement should not be considered a basis for avoiding full consideration of favorable factors and that a complete review of such factors is necessary in every case. Id. at 196.

In C-V-T-, the BIA questioned whether the "outstanding equities" requirement developed in exercising discretion under former INA section 212(c) has any relevance for LPR cancellation of removal cases, given the fact that the IIRIRA broadly expanded the definition of "aggravated felony." The BIA noted that because aggravated felons are not eligible for LPR cancellation, none of the immigrants to whom the BIA denied 212(c) relief because they lacked outstanding equities would even have been eligible for cancellation had they been in removal proceedings.

In the instant case, the BIA concluded that "we will not apply a threshold test in cancellation of removal cases." Rather, in every case the favorable and adverse factors must be weighed, to determine whether the "totality of the evidence" warrants a favorable exercise of discretion."

Examining the particular factors present in this case, the BIA concluded that the favorable factors do not outweigh the adverse ones. The recent, serious criminal convictions involved repeated transactions, constituting a strong adverse factor. The positive equities were that the respondent has been an LPR since 1990, has petitioned to immigrate his Mexican wife and three children, has another child who is a U.S. citizen, born in 1990, and has two brothers who are U.S. citizens. There were also several affidavits submitted from relatives and friends attesting to the respondent's favorable character.

In this case there was also evidence that the respondent had an outstanding warrant for arrest in Mexico on a charge of murder. The IJ had refused to give any weight to the warrant as a factor in exercising discretion. On appeal, the respondent argued that the warrant could not be considered because the INS did not appeal the IJ's decision. The BIA rejected this argument, finding that because it reviews the record de novo it may review all record evidence. However, the BIA refused to consider the warrant as an adverse factor because there was no conviction.

Because the BIA agreed with the IJ that the respondent did not merit a favorable exercise of discretion, it ordered the appeal dismissed.

Matter of Sotelo-Sotelo, 23 I. & N. Dec. 201, Int. Dec. 3460 (BIA 2001).