Matter of Adelina Martinez
**An LPR who qualifies as a battered spouse eligible to apply for COR under INA section 240A(b)(2); factors relevant to discretion analysis**
INA section 240A(b) is entitled “Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.” However, LPRs, such as the respondent, are eligible for that relief. The title of the section is at odds with the statutory text, which does not require applicants to show any particular immigration status. Under Supreme Court precedent, the title of a statute and heading of a section cannot limit the plain meaning of a statute’s text. Regarding the statutory text of section 240A(b)(1) and (2), there is no ambiguity. The language of both provisions states that “an alien who is inadmissible or deportable from the United States” may seek relief if certain other criteria are met. This language is clear and in no way prohibits LPRs from applying for relief under section 240A(b)(2).
In addition, legislative history of the IIRIRA indicates that section 240A(b)(2) was meant to “restate” former section 244(a)(3) of the Act. Since relief under former section 244(a) was not limited to nonpermanent residents, relief under section 240A(b)(2) of the Act also should not be either. Moreover, the legislative amendments to section 240A(b)(2) show that Congress has intended to expand the relief available to aliens who are battered by their spouses. Because both LPRs and nonpermanent residents could be charged with grounds of deportability and there are no regulations or case law to the contrary, it appears that relief under former section 244(a)(3) of the Act, like that under sections 244(a)(1) and (2), was available to aliens in either status. Furthermore, the legislative history of the VAWA does not indicate that suspension of deportation under former section 244(a)(3) of the Act should be unavailable to LPRs who qualify as battered spouses. Rather, the purpose of the VAWA amendments to the Act was to permit battered spouses to leave their abusers without fear of being deported or suffering other immigration consequences.
While Respondent is eligible for special COR, she should be denied relief in the exercise of discretion. Factors such as her divorce from her abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in discretion analysis. The respondent has already obtained a form of VAWA relief once, has become
removable, and has not argued that she needs or is eligible for VAWA protection in her current relationship. The VAWA should not be invoked again to benefit an alien when the past abusive relationship has ended and the former abusive spouse no longer poses a threat.
Matter of Jean Robert Evra
**The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of INA section 240(b)(5)(C)(ii)**
The IJ ordered the Respondent removed in absentia for failing to appear. The Respondent filed a motion to reopen to rescind an abstentia order, arguing that because he was in State custody at the time of the hearing, his failure to appear was through no fault of his own. The IJ erred in denying the Respondent’s motion and finding that only individuals who are confined in custody on criminal charges at the time of their immigration hearing and who are later acquitted of the criminal charges, or have their charges dismissed, are entitled to have their removal proceedings reopened because their confinement was “through no fault of their own.” The conduct underlying the alien’s arrest and incarceration does not constitute “fault” within the meaning of the statute. In addition, the clear purpose of the statute is to prevent individuals in such custody from being ordered removed in absentia when they are unable to attend their hearing as a result of their incarceration.
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