On August 10, 2021, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal for the 2nd time; in March 2015 it had dismissed Respondent’s appeal of an order by the Immigration Judge (IJ) denying her application for cancelation of removal per INA §240A(a). The instant decision came on remand from the Ninth Circuit Court of Appeals.
The decision first stated that the dispositive issue before the BIA was whether Respondent’s prior grant of special rule cancelation of removal under the Nicaraguan Adjustment And Central American Relief Act (NACARA) bars her, per INA §240A(c)(6), from applying for cancellation of removal under INA §240A(a). This question of law was reviewed de novo.
After being granted special rule cancellation, Respondent had been placed into removal proceedings, where she applied for cancelation per INA §240A(a), The Board initially noted that §240A(c)(6) provides that one whose removal has previously been cancelled under 240A(a) “is statutorily ineligible for cancellation of removal under section 240(a) or (b)(1) of the Act.” Thus, the “plain language ” of §240A(b)(6) precludes her from obtaining §240A(a) cancellation. The opinion therefore held that, based on the plain language of §203(b) of the NACARA (the enabling section which allows the Attorney General, under INA 240A, to cancel the removal of an eligible applicant.) and INA §240A(c)(6) as amended by the NACARA, 240A(c)(6) bars one who has previously been granted special rule cancellation under the NACRA from applying for cancellation under §240A(a) or (b)(1). The rest of the opinion is a justification for its decision under the Ninth Circuit remand.
Initially, stated the BIA it “respectfully recognize[d]” that the court of appeals had held in its remand order that it is ambiguous whether Congress intended §240A(c)(6) to extend to NACARA §203 recipients. Thus, concluded the opinion, where the controlling circuit holds that the language of the statute is ambiguous in this respect, basic rules of statutory construction led the Board to alternatively conclude that Congress intended a grant of special rule cancellation under the NACARA to bar, per §240A(c)(6), a future grant of cancellation under §240A(a) or (b)(1). First, Congress had “explicitly exempted” NACARA applicants from the annual cap on the numbers of applicants for cancellation and suspension of deportation that can be granted in a single fiscal year; obviously, Congress knew how to explicitly exempt those who previously received special rule cancellation under NACARA from specific provisions of §240A. The decision found it significant that Congress chose not to explicitly exempt NARACA recipients from the bar to relief found at §240A(c)(6); this omission, it concluded, supports its decision that “Congress did not intend to exempt such recipients from this statutory bar.”
Secondly the BIA found that the language of §203(b) of the NACARA revealed that where Congress intended to make specific provisions of §240A inapplicable to special rule cancellation under the NACARA, it did so explicitly; the implementing regulations support this conclusion. Specifically, stated the decision, 8 C.F.R. §1240. 66(a) provides that, to establish special rule cancellation eligibility under NACARA, an applicant must prove that he or she is not subject to any bars in §§240(b)(7), 240A(c) or 240B(d). Further, an applicant for cancellation per §240A(a) or (b)(1) must prove that he or she is not barred by §240A(c)(6) “based on a prior grant of NACARA special rule cancellation of removal.” The Board thus concluded that Respondent’s prior receipt of special rule cancellation under the NACARA bars her, per §240A(c)(6), from applying for cancellations under §240A(a). The appeal was dismissed. Matter of Hernandez-Romero, 28 I&N, Dec. 374 (BIA 2021).