By Maud Poudat | US Immigration Attorney
Posted: July 19, 2010
A non-permanent resident foreign national, or permanent resident foreign national, placed in removal proceedings (formerly known as deportation proceedings) and charged under either Section 212 or section 237 of the Immigration and Nationality Act may be able to fight deportation with the Immigration Judge via the filing of an application for cancellation of removal. See Section 240A(a) and Section 240A(b) of the Act. Such application may be filed to waive certain immigration violations, depending on which immigration status the foreign national holds in the United States.
Section 240A(a) defines who, as a legal permanent resident of the United States, is eligible to file for the relief of cancellation of removal. More specifically:
A legal permanent resident applicant, who is in removal proceedings because of one or multiple criminal convictions which is not considered an aggravated felony, may waive those offenses via a cancellation of removal application. See Section 101(a)(43) of the Act for the definition of an aggravated felony.
The requirement of lawful admission for permanent residence of 5 years ends on the date of the filing of the application. However, the continuous presence of 7 years for a legal permanent resident ends when the individual is served with a notice to appear under section 239(a), or when the individual has committed an offense referred toin section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.
Let’s say Victor was served with a notice to appear on January 29, 2009 under section 237(a)(2)(B)(i) of the Act after having been convicted of a controlled substance offense, a single conviction for possession of cocaine via plea of no contest on September 13, 2007. However, Victor was arrested for this offense on January 3, 2007. Victor entered the United States on July 15, 2000 as a legal permanent resident via sponsorship through his father. Victor is not eligible to apply for cancellation of removal since he has not accrued 7 years of continuous presence in the United States. The period of continuous presence starts from the date Victor entered the United States as a permanent resident on July 15, 2000 and ends on the date of the commission of the crime, i.e. January 3, 2007, hence short of the 7 years as required by statute.
Now, let’s say Victor entered the United States without inspection but then was granted asylum on June 16, 1998 and then obtained his green card on July 15, 2000. The period of continuous presence would start as of June 16, 1998, the date when Victor was admitted as an asylee. Victor would then be eligible to apply for cancellation of removal since he would have accrued the 7 years of continuous residence in the U.S.
There are added restrictions on the physical presence as it pertains to breaks in the continuity of the physical presence. A foreign national shall be considered to have failed to maintain continuous residence of continuous physical presence in the United States if he or she departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. Such requirements of continuous presence shall not apply to a foreign national who has served for a minimum of 24 months in an active-duty status in the Armed Forces of the U.S., and if separated from such service, was separated under honorable conditions, and at the time of the foreign national’s enlistment or induction, the person was in the U.S.
Once the Immigration Judge has determined that the foreign national is eligible to file such application, the Judge will then weigh the positive equities against the negative factors, i.e. criminal convictions and any other adverse factors. An applicant for cancellation under Section 240A(a) will demonstrate that he or she has 1) close family relatives in the United States who would suffer hardship if the foreign national is removed from the U.S. (although not a requirement), 2) family ties in the United States, 2) a history of long time residence in the U.S., 3) employment history and payment of taxes, 4) business or property ties in the U.S., 5) rehabilitation and good moral character. Any other favorable factors may be considered such as the age of the foreign national at the time of entry, conditions in country of removal, ties to country of removal, financial impact of departure from the U.S., significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the alien will return; and, lastly, the possibility of other means of adjustment of status or future entry into this country.
By weighing all the positive factors against the negative factors, the Immigration Judge will come to the determination to grant or deny the application for cancellation of removal. If the application is granted by the Immigration Judge, the applicant’s convictions will no longer subject him or her to deportation and the applicant will be restored to his legal permanent resident status as of the date of his or her initial admission as a legal permanent resident. This is however a one time shot. An applicant who is granted cancellation will not be able to apply again in the future in the event he commits another deportable offense.
Section 240A(b) defines the requirements for cancellation of removal and adjustment of status for certain nonpermanent residents.
The continuous physical presence is subject to the same stop-time rule as the continuous residence requirement for cancellation of removal for a legal permanent resident. The issuance of a Notice to appear under section 239(a) or the commission of a crime referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. Similarly, the continuous physical presence is cut off by any trips in excess of 90 days or for any periods in the aggregate exceeding 180 days.
Let’s assume that Victor entered without inspection in Laredo, Texas in January 1999. He has been in the United States ever since. His notice to appear was issued on December 2008. He is therefore not eligible to apply for cancellation of removal as a nonpermanent resident since he is short of the 10 years.
When the applicant is convicted of a crime that is not included in the sections mentioned above, that particular crime may make him or her ineligible to apply for cancellation of removal as a nonpermanent resident since the applicant may not fulfill the good moral character requirement. Whether a crime renders the person ineligible for lack of good moral character, will depend on the Immigration Judge’s evaluation of the seriousness of the offense and pertinent case law.
One of the most difficult requirements to meet in a cancellation of removal case for a nonpermanent resident is the extreme and unusual hardship requirement. One not only is required to have a qualifying relative such as a child, spouse or parent who is a legal permanent resident of citizen of the United States, but also demonstrate that the applicant’s removal would cause hardship to that qualifying relative that rises beyond the normal hardship that is expected in case of removal, such as separation or financial hardship. This is often the case when the applicant’s qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant’s native country.
Whether the foreign national is a permanent resident or nonpermanent resident applying for cancellation of removal, the use of witnesses is highly recommended in addition to providing a wide variety of documentation reflecting the positive factors listed above.
Hiring an experienced deportation defense attorney to represent a foreign national placed in removal proceedings is highly encouraged and heightened the chances of success in getting an application for cancellation of removal granted. We have successfully represented a wide variety of clients who have ultimately become United States citizen. We can also help you in this difficult time and increase your chances of success in fighting deportation in Immigration Court.
Board Certified Immigration Attorney