In my last blog, I wrote about how past mistakes, arrests and convictions can make a foreign national deportable or inadmissible, even though he or she has been in this country for many years. Taking an affirmative action, like applying for naturalization, can bring one’s negative history to the attention of the Department of Homeland Security, resulting in being placed in removal proceedings. Moreover, even if you have not committed any crimes, but are out of status, your illegal status can be brought to the attention of Homeland Security by a simple traffic stop, or by attempting to re-enter the country after a vacation or trip home to see family.
Once you are in removal proceedings, you are on your way to being returned to your home country, even if you have been in the United States for decades. There are, however, various forms of relief that can extinguish your removal if you qualify. One of the most common forms of relief is called Cancellation of Removal. The qualifications for receiving a Cancellation of Removal waiver are tough, and many people will not be eligible. However, if one is successful, the reward is a second chance to remain in the United States and possibly gain additional immigration benefits.
There are two types of cancellation of removal, one for legal permanent residents or green card holders (“LPR’s), and one for non- LPR’s, or those with no legal status. Under immigration law (INA § 240A(a)), a Legal Permanent Resident who is placed in Removal proceedings is eligible for cancellation if:
- he or she has been an LPR for at least 5 years;
- has resided in the United States continuously for 7 years after being admitted in any status;
- has not been convicted of an aggravated felony; and
- merits favorable exercise of discretion.
One of the greatest barrier to cancellation of removal relief for most LPR’s is the 7 years of continuous residence requirement. This is because of the “time stop” rule. The continuity of time stops when the foreign national commits certain crimes (crimes of moral turpitude, multiple crimes, aggravated felonies), or when the foreign national is served with the removal papers. Aggravated felonies also drastically limit many LPR’s in removal proceedings from qualifying for relief. Many crimes, even those that may appear minor or may even be misdemeanors fall into the INS definition of aggravated felony. And since most LPR’s who are in Removal Proceedings are there because they committed a crime, the time stop rule can be an issue. The last qualification – discretionary factors, encompasses things such as family ties in the US, employment history, service in the armed forces, hardship to family in the US if deported, value and service to the community, and other evidence of good moral character.
Cancellation of Removal for non-legal permanent residents is more difficult than that for LPR’s. To qualify for cancellation of removal under INA § 240A(b)(1) , the person must establish the following:
- continuous physical presence in the United States for 10 years immediately preceding the application for relief;
- good moral character during the 10-year period;
- have not been convicted of an offense that would make them inadmissible or deportable; and
- their removal would result in exceptional and extremely unusual hardship to a USX or LPR spouse, parent or child.
That last criteria, exceptional and extremely unusual hardship to a USC or LPR spouse, parent or child is an extremely hard standard to meet. Lower standards of living or adverse country conditions are generally not enough to meet the standard. Factors that meet the exceptional and extremely unusual hardship standard include a serious illness to a child for which treatment would not be available if the child was forced to accompany his or her parent back to their country of origin.
The removal process begins when one is served with a Notice to Appear (an “NTA”) before an immigration judge. The NTA has a date and time to appear in immigration court before an immigration judge for a Master Calendar Hearing. If you receive and NTA for any reason, you should immediately seek to retain an immigration attorney who is experienced in Removal Proceedings. Each case is unique and the law is extremely difficult to apply. Only an attorney experienced in Removal Proceedings can competently help you navigate the process. Since there are many other forms of relief other than Cancellation, an immigration attorney will be able to evaluate your case and determine what relief, if any, is available to you, and construct a defense that will be successful in immigration court.
Contact Kalita Law Group, P.C. for more information about Cancellation of Removal.