Narrative Opinion Summary
In this case, a Salvadoran citizen sought review of a decision by the Board of Immigration Appeals (BIA) affirming the denial of his applications for cancellation of removal and a waiver of inadmissibility. The petitioner, who entered the United States without inspection and later became a lawful permanent resident, was convicted of aggravated assault and receiving stolen property, leading to removal proceedings. The Immigration Judge (IJ) found the petitioner removable and ruled him ineligible for a waiver due to the failure to concurrently apply for adjustment of status, and ineligible for cancellation of removal as his Temporary Protected Status (TPS) did not count towards the requisite seven years of continuous physical presence. The BIA upheld these findings, and the petitioner's due process claim was denied for lack of demonstrated prejudice. Furthermore, his equal protection argument was rejected under rational basis review, as the court found Congress's distinction between inadmissibility and deportability justified. Ultimately, the petition for review was denied, affirming the BIA's decision supported by substantial evidence and legal precedent.
Legal Issues Addressed
Cancellation of Removal under 8 U.S.C. § 1229bsubscribe to see similar legal issues
Application: Montano's period of Temporary Protected Status (TPS) did not count towards the seven years of continuous physical presence required for cancellation of removal.
Reasoning: The IJ determined he did not meet the seven years of continuous physical presence required for cancellation of removal, as his TPS period was not considered an 'admission' for this purpose.
Due Process in Immigration Proceedingssubscribe to see similar legal issues
Application: Montano's due process claim was denied because he failed to demonstrate substantial prejudice resulting from the IJ not considering testimony on extreme hardship.
Reasoning: Montano must show that testimony from him or his family would have likely resulted in a finding of 'extreme hardship' for a waiver of inadmissibility. However, he fails to specify how such testimony would demonstrate hardship beyond a general claim of exceptional hardship to his family.
Equal Protection under Rational Basis Reviewsubscribe to see similar legal issues
Application: Montano's equal protection claim failed because distinctions in immigration law between inadmissibility and deportability are permissible under rational basis review.
Reasoning: The Seventh Circuit noted that Congress could rationally differentiate between individuals who committed crimes before their entry into the U.S. (making them inadmissible) and those who committed crimes after entry (making them deportable).
Waiver of Inadmissibility under 8 U.S.C. § 1182(h)subscribe to see similar legal issues
Application: Montano was found ineligible for a waiver of inadmissibility because he did not file a concurrent application for adjustment of status.
Reasoning: The BIA determined that Montano needed to file a concurrent application for adjustment of status to be eligible for the waiver, which he did not do.