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Deportation or Removal
Cancellation
of Removal for non-permanent residents as a means of Achieving Permanent
Residency.
Cancellation of Removal should be no one’s first choice as
a means of procuring permanent residency in the U.S., but it is
available to some.
Cancellation of Removal is available to those who have been:
- Physically
present in the US for ten years;
- A person
of good moral character for ten years;
- Not convicted
of an offense under INA §§212(a)(offenses that make
one inadmissable), 237(a)(2) (criminal offenses) and 237(a)(3)
(failure to register and falsification of documents);
- AND who
prove that their removal would work an exceptional and extremely
unusual hardship to their USC or LPR spouse, parent or child.
- The applicant
must also prove that they deserve a favorable exercise of discretion
from the Immigration Judge.
The main detriment
to his means of getting one’s permanent residency (“green
card”) is that one must be placed in Removal Proceedings in
order to apply. If Cancellation is not granted an no other form
of relief is available an order of Removal will be issued by the
Immigration Court. An Appeal of Right may then be taken to the Board
of Immigration Appeals, which can take one to five years to make
a decision, but if that appeal is denied the only other avenue of
relief would lie through the Federal Courts, an expensive and difficult
option.
Physical Presence
Physical presence is achieved by entering the U.S. and staying here.
Constant travel out of the U.S. or leaving and remaining out of
the U.S. for more than 90 days at any time terminates physical presence.
Applicants are required to prove their physical presence in the
U.S. through means such as tax records, work history, lease agreements,
government issued identification documents, birth certificates of
children and through any and all official records and documents.
Good Moral
Conduct
Good moral character is proved through general conduct. The Immigration
Judge will look to the number and nature of violations of Immigration
Law committed by the applicant. He will also look to violations
of criminal law by the applicant. There are a number of things that
the applicant can do to make himself statutorily ineligible for
this relief. One is automatically ineligible for this relief if
one is:
- a habitual
drunkard;
- a polygamist;
- a protstitute;
- a smuggler;
- convicted
of a crime of bad intent (called a “crime of moral turpitude”);
- convicted
of multiple crimes;
- convicted
of a drug crime;
- admitted
committing one of the above acts or crimes;
- one who
derives income from illegal gambling;
- a person
who has given false testimony for the purpose of receiving an
immigration benefit;
- a person
who was confined in prison for more than 180 days on any conviction;
- a person
convicted of an aggravated felony committed after November 29,
1990.
Exceptional
and Extremely Unusual Hardship
Congress made a change from “extreme hardship” to the
current standard of exceptional and extremely unusual hardship in
an effort to narrow the scope of persons eligible for this relief.
The Immigration Judge will look only to factors that effect the
hardship to the United States Citizen (“USC”) or lawful
permanent resident (“LPR”) close relative such as age
of the relative the claim is based upon, family ties in the U.S.
and abroad, length of residency in the U.S., conditions of health,
conditions in the country to which the relative would depart (if
necessary, such as in the case of a minor child of a deportable
alien), immigration history, position in the community and other
relevant information.
Decisions made
in the past by the Board of Immigration Appeals (BIA) show that
hardship occasioned by educational and health facilities in a foreign
country not up to the standards of the U.S. is not automatically
extreme hardship. Separation from one’s family has been noted
as perhaps the most important hardship factor. Immigration Judge’s
look not to any single factor, rather, all of the relevant factors
are considered in the aggregate. If hardship suffered by the USC
or LPR relative is the same as hardship suffered by any child of
any family leaving the U.S. for another country, extreme hardship
will not exist.
Discretion of
the Immigration Judge
Even if one proves that one’s removal should be canceled under
the above enumerated criteria, the Immigration Judge does not have
to grant relief. It would be important for an applicant to prove
to the Immigration Judge that he or she would be an asset to the
United States, and would not likely be a burden on the nation.
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