Unpub. BIA Cancellation Remand Victory

Unpub. BIA Cancellation Remand Victory

"Pursuant to Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), because an application for cancellation of removal under section 240A(b )(1) of the Act, 8 U.S.C. § 1229(b)(1), is a continuing one for purposes of evaluating an alien's moral character, the period during which good moral character must be established ends with the entry of a final administrative decision by the Immigration Judge or by the Board.  An alien must show good moral character for a period of 10 years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board.  In this case, because the smuggling event occurred in 2001, and there is still no final administrative decision, the 10-year period expired in 2011.  Therefore, the smuggling event in 2001 no longer bars a finding of good moral character.  Accordingly, a remand is necessary for the Immigration Judge to re-evaluate whether the respondent currently meets the requirement of good moral character.  Further, we find that a remand is necessary because the Immigration Judge did not fully consider all of the factors regarding the hardship to the respondent's three United States citizen children, especially family separation should they not go to Mexico with the respondent. ... On remand. the respondent shall be given an opportunity to submit any pertinent, additional evidence regarding hardship to his qualifying relatives. including any medical records to demonstrate the severity of the medical issues of at least two of his children. The Immigration Judge also denied relief in the form of voluntary departure, finding that the respondent is not eligible for such relief because he lacks the requisite good moral character.  The respondent did not specifically challenge that ruling on appeal, but, given our ruling on good moral character, the issue of voluntary departure may also be revisited on remand, if desired." - Matter of X-, Sept. 6, 2012.  [Hats off to Linda G. Vega of Houston!]