Cancellation of removal is a relief available to an alien facing deportation which if granted results in permanent resident status. The applicant must have been in the United States for a continuous period of at least ten years and demonstrate exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident relative.
He must also show good moral character for a period of ten years. Although good moral character is not defined in the law, certain classes of individuals are statutorily disqualified from establishing it.
The list of persons statutorily ineligible includes those who have been convicted of a crime involving moral turpitude; those who have engaged in prostitution, drug trafficking, and alien smuggling; and those who have given false testimony to obtain immigration benefits. If a person committed any of the offenses within the last 10 years, he would not be able to show good moral character.
At the same time, other negative factors can be considered in assessing the applicant’s good moral character, such as prior immigration violations and failure to provide child support.
A case recently decided by the Court of Appeals for the First Circuit illustrates how a good moral character finding is not only a statutory but also a discretionary matter. It also serves as a cautionary tale for those who marry or divorce under circumstances that might indicate that it was a sham or done only for immigration reasons.
That case involved Juan Fernando Restrepo, a foreign national who entered the United States on a visitor visa and then overstayed. He married his wife Maria and they settled in the U.S. with their two children. A few years later, Restrepo moved out and lived separately from Maria and, before their divorce was finalized, his father petitioned him as an unmarried son and said petition was approved.
After the divorce, Maria married a U.S. citizen through whom she obtained her green card. While still married to the U.S. citizen, Maria and Restrepo reconciled and had a third child. Maria eventually divorced her U.S. citizen spouse and remarried Restrepo.
In 2001, Restrepo filed an adjustment of status application on the basis of his father’s preference petition. Immigration authorities discovered that he was married to Maria when his father filed the I-130 petition for him. As a result, they denied his adjustment application and revoked the immigrant visa petition. They also placed him under removal proceedings the very same day.
The removal proceedings were stalled for several years after Maria filed a visa petition for him as the spouse of a lawful permanent resident. When she finally applied for citizenship, the USCIS determined that her marriage to her U.S. citizen ex-husband was a sham and denied her naturalization application.
When his removal proceedings resumed, Restrepo applied for the relief of cancellation of removal. The judge denied the application after finding that he lacked good moral character not only because he committed false testimony but also because he had engaged in a sham divorce. The decision was upheld by the Board of Immigration Appeals.
The immigration judge found that Restrepo gave false testimony during the proceedings regarding the reasons for his divorce from Maria. The judge considered the suspicious timing of the separation (just before his father’s I-130 petition) and the fact that Maria subsequently married a U.S. citizen. His false testimony made him statutorily ineligible for a finding of good moral character.
The judge also noted that he and Maria had their third child while she was married to the U.S. citizen and that they remarried shortly before his adjustment application was denied. The judge found that none of the affidavits and letters submitted in support of the application mentioned any such divorce and remarriage, and not even the church pastor was aware of it although the applicant appeared to be an avid churchgoer.