Introduction

On May 23, 2025, U.S. Attorney General Pam Bondi designated the Board of Immigration Appeals’ February 6, 2025 decision in Matter of Bain, 29 I&N Dec. 72 (BIA 2025) as precedential, making it binding on immigration courts across the country. The decision deals with discretion for handing criminal convictions for cancellation of removal applicants. Below, we will work through the key points of the decision and look ahead to its potential impact on cancellation of removal applications going forward.

Procedural History of the Case and Relevant Laws Governing Cancellation of Removal

The alien respondent in Matter of Bain was a lawful permanent resident of the United States and a citizen of the Bahamas. He was charged with removability by the Department of Homeland Security and placed in removal proceedings before an immigration judge. The respondent conceded that he was removable as charged but sought relief from removal in the form of cancellation of removal for certain lawful permanent residents, which is codified at section 240A(a) (8 U.S.C. 1229b(A)) of the Immigration and Nationality Act (“INA”).

Establishing eligibility for cancellation of removal is a two-step process. First, the alien must meet certain statutory requirements. He or she must have been lawfully admitted as a permanent resident for not less than five years, resided in the United States for at least seven years in any status, and not been convicted of an aggravated felony (see section 101(a)(43) of the Immigration and Nationality Act). Secondly, assuming that the alien meets the statutory requirements for cancellation of removal, the alien must establish to the satisfaction of the adjudicator that he or she merits relief in the exercise of discretion. The applicant for cancellation of removal has the burden of proving that he or she is eligible for cancellation and that he or she merits relief in the exercise of the adjudicator’s discretion. See 8 C.F.R. 1240.8(d).

As we will discuss in the next section, the respondent in Matter of Bain met the statutory requirements for eligibility for cancellation of removal for certain lawful permanent residents. The dispute centered on whether he merited relief in the exercise of discretion. The respondent had multiple criminal convictions involving controlled substances but countervailing positive equities including having been in the United States for a long period of time, family ties, and employment. The immigration judge found that the respondent merited relief in the exercise of discretion and granted his application for cancellation of removal, The Department of Homeland Security appealed the decision of the immigration judge to the Board of Immigration Appeals, asking the Board to review and ultimately reverse the immigration judge’s decision granting relief.

Board of Immigration Appeals Vacates the Grant of Cancellation of Removal

The Board of Immigration Appeals ultimately sustained the Department of Homeland Security’s appeal and vacated the immigration judge’s decision granting the respondent’s application for cancellation of removal. Because this is now a precedential decision, we must understand how and why the Board reached this result to have an idea of how it may affect future cases.

The Board of Immigration Appeals is an appellate body, which means it reviews the decision of the immigration judge below. In the instant case, it explained that “we review Immigration Judge’s factual findings for clear error, the ultimate determination of whether the respondent merits a favorable exercise of discretion is a legal determination we review de novo.” In short, when the immigration judge makes a finding of fact, the Board only looks to see whether the factual finding was clearly erroneous. The Board does not make its own findings of fact. Conversely, the Board reviews the immigration judge’s discretionary findings and legal determinations from the beginning. In the instant case, the Board found that the immigration judge’s factual findings were not clearly erroneous and thus declined to disturb them. The Board’s decision ultimately turned on the immigration judge’s exercise of discretion.

The Board described several positive and negative factors weighing for and against granting cancellation of removal in the instant case. Note that the Board’s description of the positive and negative factors derive from the immigration judge’s findings of fact.

On the positive side of the ledger, the Board noted that the respondent had resided in the United States since 1998 and had been a lawful permanent resident since 2011. He had “significant family ties, including multiple United States citizen family members residing in the United States.” It added that he had attended elementary and high school in the United States (he dropped out of high school but was pursuing a GED) and had been employed for stretches during his stay in the United States.

The Board described the “significant adverse factors” cautioning against granting relief, focusing on “the respondent’s extensive criminal history, which ranges from 2013 to 2021 in Florida.” The immigration judge found based on evidence in the record that the respondent was first arrested in 2013 for possession of MDMA, a federally controlled substance, and that charge was ultimately dismissed after he completed participation in a drug program. He was convicted in 2018 of driving without a valid license. Of greater concern to the Board, “[t]he record establishes that the respondent’s drug-related criminal history included six counts of selling or delivering controlled substances.” According to the evidence in record, the respondent sold or delivered cocaine, fentanyl, and heroin on four separate occasions in 2019 and 2020.

The Board concluded that the immigration judge erred in finding that the respondent merited cancellation of removal relief in light of his criminal history. The Board’s reasoning in its conclusion should be instructive in future cases.

The Board “recognize[d] that the respondent expresses a desire to better himself and misses his family and children.” However, the Board concluded that while the respondent insisted that he was rehabilitated and expressed the desire to be an upstanding member of the community in the future, he had not “sufficiently demonstrated rehabilitation” in light of his serious criminal history. Quoting from its precedent in Matter of C-V-T-, 22 I&N Dec. 7, 12 (BIA 1998), the Board explained that “a respondent who has a criminal record will ordinarily be required to present evidence of rehabilitation before relief is granted as a matter of discretion.”

The Board further acknowledged that the removal of the respondent “may result in a significant level of hardship to himself and his family” and that “[t]he equities and humanitarian factors present in this case are not insignificant.” But those factors were not enough to persuade the Board that the respondent sustained his burden of establishing that he merited cancellation of removal. It explained that “[t]he respondent’s criminal record is … recent, serious, and recidivist.”

Taking all the positive and negative equities together, the Board concluded: “Considering the recency and repeated nature of his criminal history and the lack of showing of rehabilitation, we conclude, upon consideration of the totality of the record and a balancing of factors present in this case, that [the respondent] has not established that he warrants cancellation of removal as a matter of discretion.” Thus, the Board vacated the immigration judge’s decision granting cancellation of removal and ordered the respondent to be removed to the Bahamas.

Significance of Matter of Bain for Discretion Criminal Convictions for Cancellation of Removal Applicants

The first noteworthy point about Matter of Bain is that the Attorney General (Pam Bondi as of its publication) singled it out for publication as precedent three months after it was issued. We can infer from the decision to designate Matter of Bain as precedential that the Attorney General finds the decision persuasive and expects immigration judges as well as the Board to follow its reasoning when adjudicating applications for cancellation of removal (and, potentially, other forms of discretionary relief from removal) filed by applicants with serious and recent criminal histories. The decision is somewhat lacking in in-depth analysis, perhaps owed to the fact that it may not have originally written as a precedent decision, and it largely follows the Board’s more detailed 1998 precedent on the issue of discretion in the cancellation of removal context in Matter of C-V-T-.

Beyond the fact that the Attorney General saw fit to elevate Matter of Bain to the status of precedent, we can glean a few points from the decision. Firstly, it reiterates that multiple criminal convictions, especially convictions involving federally controlled substances, may be “serious adverse factors” weighing against granting cancellation of removal. In this particular case, the Board also emphasized the recency of the criminal convictions, with one implicating conduct which occurred in 2020, in addition to the seriousness of the drug offenses and the fact that the respondent was a recidivist offender. The Board reiterated that where a respondent with a criminal record argues that he or she is rehabilitated, the respondent must actually submit evidence of rehabilitation. That the respondent insists that he or she intends to “do better” in the future is only as significant as evidence showing rehabilitation. Moreover, the Board’s emphasis on the recency of the respondent’s criminal conduct does establish that it may be more difficult for alien’s seeking cancellation in close proximity to their most recent criminal convictions to show genuine rehabilitation. Finally, it is worth noting that while Matter of Bain considered cancellation of removal for lawful permanent residents, its logic should apply broadly to cancellation of removal for non-permanent residents, with the caveat that recent criminal convictions would likely render an alien ineligible for non-permanent resident cancellation.

Aliens in removal proceedings and who intend to either contest the charges or seek relief from removal are well-advised to consult with an experienced immigration attorney who can assess the case and determine (A) whether any form of relief may be available; and (B) how to best present the alien’s case.