Immigration: Felony charge dooms cancellation of removal application

Where an immigration judge indicated her intent to grant a man’s application for cancellation of removal, but the man was charged with a felony before the application was granted, the man’s application was denied.

Background

Alex Zalaya Orellana is a native and citizen of Honduras who entered the United States without authorization in 2003. In October 2019, Traci Hong, an immigration judge, or IJ, indicated her intent to grant petitioner’s application for cancellation of removal. But because the legislative cap of 4,000 grants of cancellation per fiscal year had already been met, Hong was required to reserve her decision until a visa became available for petitioner. That visa became available in January 2023, but by then Hong had retired.

Petitioner’s case was then assigned to a new IJ (Raphael Choi). The case was then calendared for a new merits hearing because, in the period following the initial IJ hearing, petitioner was charged with a felony. Choi ultimately denied petitioner’s application for cancellation, finding that he lacked good moral character.

Arguments

Petitioner argues that respondent was required to issue Hong’s reserved grant of cancellation within five days of Department of Homeland Security, or DHS, notifying it that petitioner’s background was clear and that the grant could be issued, that is, by Jan. 20, 2023. In petitioner’s view, respondent violated the regulation and its own policy by not issuing the reserved grant by Jan. 20, 2023, but instead waiting over two months to take action on his application, during which time petitioner obtained the new criminal charge.

Petitioner argues that it was improper for respondent to re-calendar his case because the grant should have been issued well before DHS moved to re-calendar on March 28, 2023. And petitioner argues he was prejudiced because if respondent had not — in his view — unlawfully delayed issuing the decision, he would not have had a change in circumstances that warranted re-calendaring or denial of his application.

OPPM 17-04

OPPM 17-04 sets internal policies intended to allow for orderly “handling [of] cases involving cancellation of removal . . . that are subject to the cap.” Therefore OPPM 17-04 does not create any individual right. This determination is in accord with the decisions of other circuits that have considered this and other similar internal procedures.

Cancellation is a discretionary form of relief. And “[w]hen grants are no longer available in a fiscal year, further decisions to grant such relief must be reserved until such time as a grant becomes available under the annual limitation in a subsequent fiscal year.” Thus, while Hong had indicated her intent to grant petitioner’s application in accordance with the governing regulations, the proceedings were stayed and no decision had issued. On those facts, petitioner had no legal entitlement to a decision within five days of the visa becoming available.

Hong made clear to petitioner from the beginning that he must maintain good moral character for the entire duration of his case. Even if the reserved grant of cancellation had been issued by Jan. 20, 2023, petitioner would have still been in BIA proceedings when he incurred the new criminal charge. Therefore, he was not substantially prejudiced by any delay in issuing a final decision.

New IJ

OPPM 17-04 makes clear that “[i]f the Immigration Judge who drafted the reserved decision is unavailable to issue that decision when a number becomes available,” § IX controls. Section IX contains no timing provision. Instead, it explains that the newly assigned IJ “shall familiarize himself or herself with the record in the case” and “is not bound by the original [IJ’s] preliminary decision.”

Nothing in §§ VI or IX purports to direct that a newly assigned IJ must also comply with the five day limit to modify, sign and return the reserved decision. Indeed, it is implausible to think that a newly assigned IJ could adequately “familiarize himself or herself with the record in the case” while still complying with § VI’s five day time limit. Therefore, even if it were otherwise binding, OPPM 17-04 would not have required respondent to issue a decision on petitioner’s application for cancellation within five days of being notified that a visa was available.

Petition denied.

Zalaya Orellana v. Bondi, Case No. 24-1111, June 24, 2025. 4th Cir. (Thacker), from Board of Immigration Appeals. Joseph David Moravec for Petitioner. Sarai M. Aldana for Respondent. VLW 025-2-232. 14 pp.