By Maud Poudat
A non-permanent resident foreign national or a permanent resident foreign national who is placed in removal proceedings (formerly known as deportation proceedings) and charged under either Section 212 or Section 237 of the Immigration and Nationality Act (I.N.A.) may be able to fight deportation by filing an application for "cancellation of removal."
See Section 240A(a) and Section 240A(b) of the I.N.A. 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 U.S. legal permanent resident (LPR), is eligible to file for cancellation of removal. The person must 1) have been an alien lawfully admitted for permanent residence for not less than five years; 2) have resided in the United States for seven years after having been admitted in any status, and 3) have not been convicted of an aggravated felony.
An LPR applicant who is in removal proceedings because of one or multiple criminal convictions, none of which is considered an aggravated felony, may waive those offenses via a cancellation of removal application. See Section 101(a)(43) of the I.N.A. for the definition of an aggravated felony.
The five years' required time spent as an LPR will be cut off on the date of filing the application. However, the required continuous presence of seven years for an LPR ends when the person is served with a Notice to Appear (NTA) under Section 239(a), or when the person has committed an offense referred to in Section 212(a)(2) that renders him or her inadmissible to the U.S. under Section 212(a)(2) or removable from the U.S. under Section 237(a)(2) or 237(a)(4), whichever happens earliest.
Let’s say Victor was served with an NTA on January 29, 2012 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, to which he pled contest on September 13, 2010. Victor was arrested for this offense on January 3, 2010. He had entered the United States on July 15, 2003 as a legal permanent resident, having been sponsored by his father.
Victor is not eligible to apply for cancellation of removal, since he has not accrued seven 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 (July 15, 2003) and ends on the date of the commission of the crime (January 3, 2010). He is just short of the seven years required by the law for cancellation eligibility.
Now let’s say Victor entered the United States without inspection but then was granted asylum on June 16, 2003 and then obtained his green card on July 15, 2006. The period of continuous presence would start as of June 16, 2003, 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 seven years of continuous residence in the United States by the time of his 2010 crime.
There are added restrictions concerning the physical presence requirement, related to breaks in the continuity of the person's physical presence in the United States. A foreign national shall be considered to have failed to maintain continuous residence or continuous physical presence in the U.S. if he or she departed for any period in excess of 90 days or for any periods exceeding 180 days in the aggregate. Such requirement of continuous presence does 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, provided that at the time of the foreign national’s enlistment or induction, the person was in the United States.
Once the Immigration Judge (IJ) has determined that the foreign national is eligible to file an application for cancellation of removal, the IJ will 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) should 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, 3) a history of longtime residence in the U.S., 4) positive employment history and payment of taxes, 5) business or property ties in the U.S., 6) been rehabilitated and is of good moral character.
The IJ may also take into account any other favorable factors, such as the age of the applicant at the time of U.S. entry, conditions in the country to which he or she would be removed, ties to the country of removal, the financial impact of departure from the U.S., and significant health conditions (particularly if suitable medical care in the country to which the alien will return is unavailable), 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 IJ will decide whether to grant or deny the application for cancellation of removal.
If the IJ grants the requested relief, the applicant’s convictions will no longer subject him or her to deportation, and the applicant will be restored to legal permanent resident status as of the date of initial admission to the U.S. as a legal permanent resident. This is, however, a one time deal. An applicant who is granted cancellation will not be able to apply again in the future if ever he or she commits another deportable offense.
Section 240A(b) defines the requirements for cancellation of removal and adjustment of status for certain nonpermanent residents. The person must have 1) been physically present in the U.S. for a continuous period of not less than ten years immediately preceding the date of such application; 2) been a person of good moral character during such period; 3) not been convicted of an offense under Section 212(a)(2), 237(a)(2), or 237(a)(3) (except in a case described in Section 237(a)(7), where the Attorney General exercises discretion to grant a waiver); and 4) established that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child who is a citizen of the U.S. or an alien lawfully admitted for permanent residence.
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 person's continual presence will legally end with 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 2002. He has been in the United States ever since. His notice to appear was issued on December 2011. He is therefore not eligible to apply for cancellation of removal as a nonpermanent resident since he is short of the required ten years.
When an 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, as well as 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. The person not only is required to have a qualifying relative such as a child, spouse, or parent who is a legal permanent resident or 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.
Such hardship can most readily be proven 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 attorney to represent a foreign national placed in removal proceedings is highly encouraged and greatly improves the chances of success in getting an application for cancellation of removal granted.