The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven, MS.  Originally from Russia, Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi.  She can be contacted via email at mbjorne@msn.com.

IN RE BAUTISTA GOMEZ, 23 I&N Dec. 893 (BIA 2006) holds that the provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b)(2000), must demonstrate statutory eligibility for that relief prior to the service of a notice to appear applies only to the continuous physical presence requirement and has no bearing on the issues of qualifying relatives, hardship, or good moral character.

BEFORE: HOLMES, HURWITZ, and MILLER:

    The respondent, a 22-year-old native and citizen of Mexico, arrived in the United States with her parents when she was 3 months old. In 2000, at the hearing in removal proceedings, an IJ granted her parents cancellation of removal pursuant to INA§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1) (2000). The respondent, not having a qualifying relative at the time of the hearing, was only granted voluntary departure. Three months later, the respondent filed a motion to reopen stating that her parents had become lawful permanent residents since they were granted cancellation of removal, and that she now has the qualifying relatives required to establish eligibility for that relief. The IJ denied the motion to reopen, holding that under 8 C.F.R. § 3.23(b)(3) (2000), which is currently at 8 C.F.R. § 1003.23(b)(3) (2005), the respondent was not eligible for cancellation of removal because at the time of service of the Notice to Appear (Form I-862) on the respondent, her parents were not lawful permanent residents. In 2002, the BIA summarily affirmed the results of the IJ’s decision denying the respondent’s motion to reopen her removal proceedings. The Government sought a remand for the Board to consider whether the respondent’s motion to reopen was properly denied.

    The BIA pointed out that an application for relief from removal is a continuing one. Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005). The BIA determined that the issue of qualifying relatives, like the issue of good moral character, should be considered at time an application for cancellation of removal is finally decided. The BIA found that 8 C.F.R. § 3.23(b)(3) as applied  to INA § 240A (b)(1)provides only that an alien seeking to reopen his or her case for consideration of an application for cancellation of removal must have satisfied the continuous physical presence requirement for that relief at the time of service of a notice to appear. The regulation has no bearing on the other requirements for cancellation of removal, including the issues of qualifying relatives, hardship, or good moral character.

    The BIA sustained the respondent’s appeal from the IJ’s denial of her motion to reopen and remanded to the IJ for further proceedings consistent with this opinion.