In this comment, Godfrey Muwonge, Esq. discusses the Defense to Deportation/Removal known as Cancellation of Removal for Non-Lawful Permanent Residents (LPRs):
Cancellation of Removal for Non-LPRs:
Cancellation of removal for a Non-LPRs is a form of relief
from removal/deportation that Congress authorizes an immigration judge to grant
to a non-citizen (known in removal proceedings as the respondent) charged with
removability from the United States. This form of relief is not available to
the non-citizen unless the Immigration Service has issued him or her a Notice
to Appear (NTA) in which it charges that the non-citizen is subject to removal
for one or more of various reasons, and the Service has filed the NTA with the
Immigration Judge to commence removal proceedings.
The relief is essentially a green card. The Immigration
Court, meaning all immigration judges together, can grant a maximum of 4,000 of
these to respondents before them.
In order to qualify for cancellation relief, a
respondent must demonstrate the following:
1.
The respondent must
have resided continuously in the United States for at least 10 years and, if he
or she departed during this period, only have departed for a maximum of 90 days
at any one time and an aggregate of 180 days during the entire 10-year period.
The continuous presence must have accrued prior to the Immigration Service
issuing the NTA, and issuance of the NTA stops the 10 years accruing. Also,
conviction of certain offenses, offenses that render the non-citizen
deportable, and offenses related to terrorism stops the 10 years from accruing.
Leases,
paychecks, hospital records, birth records of children, affidavits of persons
with knowledge of the respondent’s presence, and other proof would be critical
in establishing continuous-physical presence in addition to the respondent’s
own testimony;
2.
The respondent
must show that he or she has been a person of good moral character throughout
the 10-year period. Regardless of when it happened, a person is barred from
establishing good moral character if she is barred by statute. Statutory bars
include murder and one of the aggravated felonies Congress defined beginning on
November 29, 1990, or if he or she engaged in persecution, genocide, torture,
or severe violations of religious freedom. In addition, because cancellation is
a discretionary form of relief, and a finding of good moral character is, thus,
a discretionary decision, once the respondent demonstrates that he or she is
not barred by statute, the Immigration Judge must still decide whether that
individual has good moral character.
Affidavits
from high-placed members of one’s community, members of one’s church,
synagogue, temple, mosque or other place of worship, or civic organization, and
other sources vouching for the respondent’s good moral character may go a long
way in convincing a judge as to a person’s good moral character. Paying one’s
taxes, evident from tax returns over the years, is another example of how to
prove good moral character. And so on;
3.
Certain offenses,
especially major criminal offenses and crimes involving moral turpitude bar a
respondent from cancellation. For instance, a crime involving moral turpitude
for which a term of imprisonment of at least one year may be imposed, for which
the respondent actually served at least 180 days in detention, would bar the
respondent from cancellation. Of course, offenses that have to do with national
security and terrorism bar the respondent from cancellation.
4.
Exceptional and
extremely unusual hardship to a qualifying relative. A qualifying relative is
either a child (under 21 years of age), a spouse, or a parent. Although the Immigration
Judge may not consider non-qualifying relatives, if the hardship would be
suffered by a non-qualifying relative but would affect a qualifying relative,
the respondent can present that hardship to the Immigration Judge for consideration.
For
example, the respondent is a non-qualifying relative. However, if he or she
suffers a life-threatening illness that would, more likely than not, result in
his or her death were he or she to be removed to his or her home country, there
would be an argument for exceptional and extremely unusual hardship to him that
would affect his qualifying relatives; that is, his children and his spouse.
Cancellation of Removal for LPRs:
Respondents
who are LPRs can seek cancellation of removal when in front of the Immigration
Judge. However, the standard they must meet is different from the non-LPR
cancellation. For instance, the LPR must have resided in any legal immigration
status for seven years. He or she must have been admitted as an LPR for at
least five years prior to commencement of removal proceedings. Details of this
relief will be discussed in a future instructional comment in this series.
In
reading these instructional comments, the reader must remember that these
comments are not legal advice but comments on the law. They do not substitute
for the legal advice of an experienced immigration attorney, and the reader is
urged to seek advice from an experienced immigration attorney when thinking
about issues such as these.
*** Godfrey
Y. Muwonge is an immigration attorney in Milwaukee, Wisconsin. Education:
Marquette University Law School, Juris Doctor
(1997). Author of “Immigration Reform: We Can Do It, If We Apply Our Founders'
True Ideals, Revised Edition” (Univ. Press of America, 2010), which was
selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of
Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
References
Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See https://www.amazon.com/Immigration-Reform-Apply-Founders-Ideals-ebook/dp/B00D79W838
