Nature of the Case
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Facts
D, a 41-year-old native and citizen of Mexico, married her ex-husband in Oaxaca, Mexico, in 1984. They have four children together, one of whom is a United States citizen. In 1989 P's ex-husband was working in the United States and arranged for P, who did not have lawful status, to join him. D's ex-husband abused her both physically and mentally for a number of years. The couple eventually separated in 1996, and D stated that she had not seen her ex-husband since 1998. After their separation, D filed a self-petition to adjust her status to that of a lawful permanent resident as the battered spouse of a lawful permanent resident pursuant to section 204(a). P approved D's self-petition on September 25, 2001. Thereafter, P and her ex-husband divorced on August 18, 2004, and she remarried in March 2006. Her current husband does not have lawful status in the United States. D was placed in removal proceedings on July 30, 2004, after she attempted to enter the United States from Mexico at the Otay Mesa port of entry in California with two minor children who were not her own. D testified that she agreed to drive the children, who did not have lawful status or documentation to enter the United States, as a favor to their mother. P issued a Notice to Appear (Form I-862), charging her as an arriving alien who is inadmissible under section 212(a)(6)(E)(i) of the Act, 8 U.S.C. § 1182(a)(6)(E)(i) (2000), for alien smuggling. D requested several forms of relief, including special rule cancellation for battered spouses under section 240A(b)(2) of the Act. D also testified about the hardship that her United States citizen son, who is now 16 years old, would suffer if she were removed to Mexico. The son's right ear is physically deformed, and he has hearing loss in that ear. She testified that her son is eligible for reconstructive surgery and that because of his hearing problems, he has been enrolled in special education classes since kindergarten. The Immigration Judge noted that the events underlying the issuance of D's Notice to Appear occurred less than 3 years earlier and prevented her from establishing the 3 years of good moral character required under section 240A(b)(2)(A)(iii). The Judge granted D a continuance to allow her to acquire the necessary period of good moral character. At the next hearing, P argued that D was ineligible for cancellation of removal as a battered spouse because she was a lawful permanent resident and only nonpermanent residents could apply for relief under section 240A(b) of the Act. The judge held that D was not a permanent resident and found that she relinquished her status when she conceded removability. The Judge found that D met the other requirements for special rule cancellation in that she established 3 years of continuous physical presence and good moral character, she was a battered spouse based on her marriage to her ex-husband, and her removal would cause extreme hardship to her United States citizen son. The judge granted her special rule cancellation of removal as the battered spouse of a lawful permanent resident under section 240A(b)(2) of the Act. P appealed.
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