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New Board Decision Addresses GMC and Discretion for VAWA Cancellation

By Susan Schreiber

Special rule cancellation of removal under INA § 240A(b)(2) is an immigration court remedy available to certain individuals who were abused by their USC or LPR spouses or parents and who also establish continuous physical presence and good moral character for the three years preceding the date of application.  What if the applicant for VAWA cancellation previously filed for asylum without basis in order to qualify for employment authorization?  Or provided testimony at her hearing that conflicted with testimony by her father regarding whether she entered the United States with other family members?  Should that affect the respondent's eligibility to establish good moral character or a favorable exercise of discretion?

In Matter of M-L-M-A, 26 I&N Dec. 360 (BIA 2014), the Board sustained the appeal of the respondent, a VAWA cancellation applicant, who was denied cancellation of removal based on an immigration judge determination that she lacked good moral character and did not merit a favorable exercise of discretion.  Citing Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), the Board noted that an application for cancellation of removal is a continuing one and that the good moral character period accrues until the entry of a final order.  The Board further determined that the respondent's good moral character was not defeated by either the judge's adverse credibility finding regarding the respondents' testimony at her hearing, nor the fact that, 14 years prior, the applicant had submitted a fraudulent asylum application.  On this matter, the Board found that, assuming these factors are relevant to the "catch-all" provision relating to good moral character bars, they were insufficient to prevent the respondent from showing good moral character.

On the matter of discretion, the Board rejected the adverse consideration given by the immigration judge to the fact that the respondent had long been divorced from her abusive spouse and was subsequently in a long-term relationship with another man.  While finding these factors relevant in the discretionary analysis, the Board here noted that the respondent had not previously received VAWA relief, nor did she qualify for other forms of relief. These factors distinguished the respondent's case from the facts in Matter of A-M, 25 I&N Dec. 77 (BIA 2009) where the Board denied special rule cancellation of removal to an applicant who had previously obtained her LPR status through a VAWA self-petition.  Taking that into account, and noting respondent's other significant equities, including extensive family ties and long residence, the Board found that a favorable exercise of discretion was warranted. 

 

To read the full decision, click here.