The Board of Immigration Appeals (BIA) published a decision in the case of Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) today. The decision held that an applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse. The case was one of first impression because the statute is silent as to the temporal requirement, if any, of the abuser's status. Special Rule Cancellation still has fewer requirements than a self-petition filed with Form I-360.
The Board issued a precedential decision today in Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021). The summary of the case is as follows: Where a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018). It is noteworthy that this decision does not apply in apply in the Third or the Tenth Circuits.
"We recognize that the United States Court of Appeals for the Third Circuit and Tenth Circuit have not adopted the two-step notice process we outlined in Mendoza-Hernandez and Capula-Cortes. See Banuelos v. Barr, 953 F.3d 1176, 1178–79 (10th Cir. 2020); Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, 165 (3d Cir. 2020). In those circuits only, a notice to appear must comply with all the statutory requirements of section 239(a) of the Act before its service will end the period of physical presence under section 240B(b)(1)(A) of the Act." Id. at 226 fn 2.