C-V-T
22 I. & N. Dec. 7 (1998)
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Rule of Law:
In exercising discretion for cancellation of removal under § 240A(a) of the Immigration and Nationality Act, an adjudicator must balance the adverse factors evidencing the alien's undesirability as a permanent resident against the social and humane considerations presented on their behalf. The general standards developed for the predecessor statute, § 212(c), as articulated in Matter of Marin, are applicable to this analysis.
Facts:
- C-V-T-, a native of Vietnam, served in the Vietnamese Marine Corps from 1973 until it was disbanded in 1975.
- Following the Communist takeover, C-V-T- was imprisoned from 1975 to 1976 and forced to perform heavy labor.
- In 1981, after an altercation with police regarding an alleged curfew violation, C-V-T- and his brother fled Vietnam.
- C-V-T- was admitted to the United States as a refugee on March 1, 1983, and became a lawful permanent resident in 1991.
- He worked as a mechanic and taxi driver in Alaska and engaged in some local volunteer work.
- On one occasion, C-V-T- acted as an unpaid middleman in a cocaine transaction for a close friend.
- After being arrested for the drug offense, C-V-T- cooperated with police, leading to the arrest of the drug supplier.
- On June 11, 1997, C-V-T- was convicted of misconduct involving a controlled substance in the fourth degree and sentenced to 90 days in jail.
Procedural Posture:
- The Immigration and Naturalization Service (INS) initiated removal proceedings against C-V-T- in June 1997.
- Before an Immigration Judge (the court of first instance in immigration proceedings), C-V-T- conceded that his controlled substance conviction made him removable.
- C-V-T- applied for cancellation of removal under § 240A(a) of the Act, asylum, and withholding of deportation.
- On July 25, 1997, the Immigration Judge found C-V-T- statutorily eligible for cancellation of removal but denied his application as a matter of discretion.
- The Immigration Judge also denied his other requests for relief and ordered him removed from the United States to Vietnam.
- C-V-T- (the respondent) appealed the Immigration Judge's discretionary denial to the Board of Immigration Appeals.
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Issue:
Do the discretionary standards developed for waiver of inadmissibility under the former § 212(c) of the Immigration and Nationality Act apply to applications for cancellation of removal under its successor provision, § 240A(a) of the Act?
Opinions:
Majority - Board Member Holmes
Yes, the discretionary standards developed under the former § 212(c) apply to applications for cancellation of removal under § 240A(a). The court must balance the adverse factors against the social and humane considerations to determine if relief is in the best interest of the United States. While the new statute, § 240A(a), does not specify how discretion should be exercised, it is appropriate to adopt the well-established balancing test from Matter of Marin, which governed the predecessor statute. This involves weighing favorable factors (e.g., family ties, long residence, hardship, employment, community service, rehabilitation) against adverse factors (e.g., nature of the crime, immigration violations, criminal history). In this case, C-V-T-'s single, non-aggravated drug conviction is a serious adverse factor, but it is mitigated by his cooperation with police, the prosecutor's favorable letter, and the amateur nature of the crime. These adverse factors are outweighed by his significant equities, including 15 years of residence, his status as a refugee, a consistent work history, and the circumstances under which he fled Vietnam. Therefore, a favorable exercise of discretion is warranted.
Analysis:
This decision is significant for establishing the legal framework for discretionary relief under the newly enacted § 240A(a) of the INA. By importing the established balancing test from Matter of Marin, the Board of Immigration Appeals provided continuity and predictability in immigration adjudications following the major reforms of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The ruling solidifies the principle that even when an alien is statutorily eligible for relief, the decision to grant it is not automatic but requires a case-by-case weighing of an individual's entire history. This ensures that discretionary relief is reserved for those whose positive contributions and equities are deemed to outweigh their negative acts.
