Cancellation of Removal Auburn Hills MI
Cancellation of Removal is a defensive form of immigration relief, that is only available to someone who is in removal proceedings with an Immigration Court. This is a one time only remedy that cannot be pursued again in the future for the individual, even if the applicant desires to seek cancellation of removal for a basis that is completely unrelated to the first time around. There are different rules for persons that are not lawful permanent residents, and persons that are lawful permanent residents (LPRs), that are set forth in the Immigration and Nationality Act (INA), which are briefly addressed below. Cancellation of Removal under INA section 240A(b)(1), if successful, allows the non lawful permanent resident to obtain lawful permanent residency and stay in the United States. If the individual is in removal proceedings because he or she is inadmissible or deportable, he or she must meet the following criteria:
- the individual has been physically present in the United States for at least 10 years;
- the individual has good moral character for at least 10 years;
- the individual has not been convicted of certain crimes listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3);
- the individual's removal would cause an exceptional and extremely unusual hardship to the individual's lawful permanent resident or US citizen spouse, child, or parent (also known as a qualifying relative).
Winning a cancellation of removal case is extremely difficult, because the standard of "exceptional and unusual hardship" is very high and often difficult to prove to the discretion of the assigned Immigration Judge. These types of proceedings should only be pursued if the individual is already in removal proceedings; the individual should not voluntarily place him or herself in removal proceedings to try to obtain cancellation of removal, even if the individual has a very strong and compelling case. The Immigration Judge has a lot of discretion to decide what constitutes good moral character, and what constitutes an exceptional and extremely unusual hardship, so the risk of losing is high even with a strong case. If the individual does not qualify for cancellation of removal (due to their prior use of cancellation of removal, because of criminal or antiterrorism grounds, crewman who entered after June 30, 1964, or certain J visa exchange visitors that did not satisfy their 2 year requirement, does not meet other requirements outlined above) the Immigration Judge does not have the discretion to approve cancellation of removal for any reason.
Cancellation of Removal also may be available for non-LPR spouses and children who have been battered or who are the victims of extreme cruelty, under the Violence Against Women Act (VAWA). The VAWA cancellation of removal requirements are as follows:
- individual has been battered by or suffered extreme cruelty from a LPR or US citizen abuser, or is the parent of a child who suffered such abuse;
- must be present in the US for 3 years before applying;
- would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the individual was removed;
- good moral character during the period of physical presence;
- is not inadmissible or deportable due to certain crimes (including, but not limited to, aggravated felonies), terrorism grounds, marriage fraud, false claim of US citizenship, failure to register, or providing false documents;
- merits a favorable exercise of discretion
Cancellation of removal for Lawful Permanent Residents is available under a INA section 240A(a) waiver and a INA section 212(c) waiver. Under INA section 240A(a) an individual can avoid deportation if he or she can establish the following:
- Must be an LPR for at least 5 years;
- Must have resided in the US continuously for 7 years after lawful admission;
- No aggravated felonies, cancellation of removal, INA 212(c) relief, or suspension of deportation in the the past;
- Does not fall into other categories such as being a terrorist, persecutor, certain crewmen, or an exchange visitor;
- Is able to convince the Immigration Judge that the positive factors for keeping the individual in the US outweighs the reason for removal of the individual.
INA section 212(c) is another form of relief that gives LPRs a chance to avoid deportation despite the fact that they are inadmissible or deportable. This is a very complicated area of law with many potential pitfalls, for which an immigration expert is mandatory. The reason an individual pursues this form of relief is because it gives the Immigration Judge the discretion to waive all grounds of inadmissibility if the individual qualifies under the provisions of INA section 212(c), and the burden is often easier to meet than the standard of "extreme hardship" under INA section 212(h). INA section 212(c)'s general threshold is that the inadmissibility or deportation is based on one or more convictions from before April 1, 1997, the individual did not receive cancellation of removal previously, and must have 7 years of lawful unrelinquished domicile.
The above information about cancellation of removal is general in nature and always subject to change at a moment's notice, The information that you are reading does not substitute for the need to retain an experienced immigration lawyer to give you great advice and to fully and fairly defend your case. There is also the existence of case law that may modify the interpretation of the requirements for cancellation of removal. Also, there may be "stop clock" provisions based upon certain criminal convictions that may impact an Immigration consideration of how long the individual was deemed physically present in the United States. There may be other forms of immigration relief available to the individual, depending upon the facts and circumstances of the individual who does not qualify for cancellation of removal. Asylum, CAT (Convention Against Torture), withholding or removal, 212(h) waiver, I-192, I-212, 601, 601A, U visa, S visa, T visa, CSPA, are a few of the other options that may (or may not) apply to your situation . An individual with immigration issues should never go it alone, and should always seek legal advice and representation from an outstanding immigration lawyer, such as the lawyers at Hilf & Hilf, PLC.