“Cancellation of removal”; The Anti-Terrorism & Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA); 8 USC §§ 1227(a)(2) & 1229b(b)(1)(C); Whether the bar against criminally convicted undocumented aliens challenging removal was retroactive; § 435(b) of the AEDPA; Fernandez-Vargas v. Gonzalez; Mojica v. Reno (ED NY); Motion to remand; Abu-Khaliel v. Gonzales; Matter of Arai (BIA); Scorteanu v. I.N.S.; Board of Immigration Appeals (BIA)

The BIA did not err by denying petitioner-Velasco-Tijero’s petition for cancellation of removal where his criminal conviction occurred before the AEDPA and the IIRIRA were enacted. The petitioner argued that “the otherwise applicable AEDPA and IIRIRA amendments do not apply to undocumented aliens who, like petitioner, pled guilty to a predicate offense before 1996, but were ordered removed after 1996.” However, the court held that the petitioner’s argument was “foreclosed by AEDPA § 435(b), which clearly indicates Congress’s intent with respect to the temporal reach of provisions in AEDPA and IIRIRA relating to aliens’ eligibility for cancellation of removal.” The court also found that the BIA “did not abuse its discretion in denying petitioner’s motion to remand so that he could request termination of removal proceedings and apply for adjustment of status.” The BIA “cannot be faulted for failing to discuss . . . considerations when petitioner never mentioned them in his motion.” Further, as the BIA’s order “made clear, it was petitioner’s ‘extensive criminal record and the lack of any evidence of rehabilitation’ that drove” its decision. “Neither of those considerations is rebutted by the evidence petitioner wished to put before the immigration court.” The court denied his petition for review.