206 F. App'x 612

Claudia Marisol Orellana DE ZELAYA, Petitioner, v. Alberto GONZALES, United States Attorney General, Respondent.

No. 05-1767.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 13, 2006.

Filed: Nov. 7, 2006.

*613Elizabeth A. Holmes, Karam & Associates, Bloomington, MN, for Petitioner.

Scott Baniecke, U.S. Immigration & Naturalization Service, Bruce Norum, Bureau of Immigration & Customs, Enforcement Department of Homeland Security, Bloomington, MN, David E. Dauenheimer, U.S. Department of Justice, Civil Division, Richard M. Evans, Thomas W. Hussey, U.S. Department of Justice, Office of Immigration Litigation, Nancy E. Friedman, U.S. Department of Justice, Civil Division, OIL, Washington, DC, Lori Scialabba, U.S. Department of Justice, Executive Office for Immigration Review, Falls Church, VA, for Respondent.

Before SMITH, MAGILL, and BENTON, Circuit Judges.

PER CURIAM.

Claudia Marisol Orellana De Zelaya (De Zelaya), a citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) which summarily affirmed an Immigration Judge’s (IJ’s) denial of relief from deportation.1

In March 1994 the former Immigration and Naturalization Service (INS) charged De Zelaya with being deportable for entering the United States without inspection. De Zelaya conceded deportability and after a political-asylum hearing, she was ordered deported to El Salvador.

In July 1998 De Zelaya moved to reopen to apply for “suspension of deportation/special cancellation of removal” under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). The IJ granted the motion and, following a merits hearing in February 2003, denied the application. The IJ analyzed De Zelaya’s case applying the NACARA suspension-of-deportation requirements, see 8 C.F.R. § 240.65 (2005) (NACARA suspension-of-deportation regulation), and concluded that De Zelaya did not satisfy section 240.65’s good moral-character requirement because she had testified falsely at the 2003 hearing regarding her date of entry into the United States. De Zelaya and the government agree that she applied for NACARA special-rule cancellation of removal derivatively through her husband — who had applied for and received NACARA special — rule cancellation of removal-and that the IJ should have applied the requirements listed at 8 C.F.R. § 240.66 (2005) (NACARA eancellation-of-removal regulation). The IJ did not discuss why he applied section 240.65 instead of section 240.66.

*614Although NACARA suspension of deportation and NACARA special-rule cancellation of removal both provide the same benefit to the alien applicant, that is, adjustment of status to that of a lawful permanent resident, there are differences in the requirements for establishing eligibility for these two forms of relief, including the relevant period for which good moral character must be established. See Cuadra v. Gonzales, 417 F.3d 947, 950-52 (8th Cir.2005) (noting difference between § 240.65 “was and is” requirement and § 240.66 “has been” requirement; finding § 240.66 requires alien to demonstrate good moral character during 7-year period before filing of application and does not require alien to demonstrate good moral character after that period).

Accordingly, we grant the petition and remand this case to the BIA with instructions to remand to the IJ to conduct a further analysis of De Zelaya’s application for NACARA special-rule cancellation of removal.

De Zelaya v. Gonzales
206 F. App'x 612

Case Details

Name
De Zelaya v. Gonzales
Decision Date
Nov 7, 2006
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206 F. App'x 612

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United States

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