Matter of Bain: Discretion & Criminal History in Cancellation of Removal

Matter of Bain: Discretion & Criminal History in Cancellation of Removal

In Matter of Bain, the Board of Immigration Appeals (BIA) reviewed a case involving a lawful permanent resident (LPR) from the Bahamas who sought cancellation of removal under § 240A(a) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1229b(a)). The applicant had satisfied the statutory eligibility requirements (including the residency and LPR admission) and the immigration judge (IJ) granted the relief. The Department of Homeland Security (DHS) appealed, and on February 6, 2025, the BIA reversed the IJ’s decision and ordered the respondent removed. The Attorney General later designated Matter of Bain as a binding precedent (May 23, 2025). Department of Justice

Under INA § 240A(a), cancellation of removal for LPRs requires three elements: (1) LPR status for at least five years, (2) continuous residence in the U.S. for at least seven years after admission, and (3) no conviction for an aggravated felony. Even when those boxes are checked, the applicant must still convince the decision-maker that they deserve relief in the exercise of discretion.

What the BIA Held

The BIA in Matter of Bain found that although the respondent met statutory eligibility, he did not merit cancellation of removal when exercising discretion. The key reasons were:

• The respondent had recent, serious and repeated criminal convictions, specifically multiple counts of selling or delivering controlled substances (including cocaine, fentanyl, heroin) in 2019-2020. Department of Justice
• The respondent had not demonstrated adequate rehabilitation in light of his criminal history.
• Although the respondent had positive equities (length of residence in the U.S., family ties, employment), these were insufficient to offset the severity and recency of his conduct.
• The BIA reaffirmed that in discretionary relief settings, when negative factors are particularly weighty, the applicant must present outstanding or unusual positive factors to tip the balance. (Citing earlier precedents such as Matter of C-V-T-). Department of Justice
• The BIA reviewed the IJ’s factual findings for clear error, but reviewed the discretionary decision de novo (fresh review). Department of Justice

Why It Matters

Since the decision was designated as precedent, Matter of Bain sends a strong message to immigration judges, practitioners, and non-citizens seeking cancellation of removal:

1. Criminal Conduct Timing & Recurrence Matter – Recent and repeat convictions weigh heavily against discretionary relief.
2. Rehabilitation Must Be Demonstrated – Mere expression of regret is not enough; evidence of change, treatment, community contribution is critical.
3. Positive Equities Alone May Not Suffice – Long residence and family ties, though important, may not overcome serious criminal history without compelling offsetting factors.
4. Discretion Is Key – Even eligible applicants must persuade the adjudicator they should receive relief.

Practical Implications for Applicants

If you are an LPR facing removal and hoping to apply for cancellation under § 240A(a):

• Inventory all criminal history. Note dates, nature of offenses, any patterns of recidivism.
• Gather strong evidence of rehabilitation (e.g., completion of treatment programs, steady employment, letters of support, community service).
• Build a robust presentation of positive equities (family ties, long U.S. residence, hardship to family, contributions to community).
• Be prepared to argue how your positive factors outweigh the negative record. If the negative record is strong, you may need “extra-ordinary” positive factors to succeed.
• Recognize that even if statutory eligibility is proven, discretionary denial is possible—and precedent like Matter of Bain indicates what kinds of records will trigger denial.

Takeaway

Matter of Bain clarifies that in LPR cancellation-of-removal cases, the BIA will scrutinize recent and serious criminal conduct and require convincing rehabilitation before granting relief. For practitioners and respondents, this means eligibility is just the first step; the exercise of discretion is equally critical—and must be approached as such.

If you would like assistance analyzing a cancellation of removal case in light of Matter of Bain—evaluating your criminal record, rehabilitation evidence, and how to frame your discretionary argument—please contact my office at 917-885-2261 or visit shautsova.com. I help clients map their risks and prepare strongly for removal proceedings.

Attorney Advertising. Past results do not guarantee future outcomes.