Cancellation of Removal Birmingham MI
Cancellation of Removal is a form of immigration relief which is defensive in nature, that is only available to someone who is in removal proceedings with an Immigration Court. A person can only receive cancellation of removal one time, even if the applicant desires to seek cancellation of removal for a basis that is completely unrelated to the first time around. There rules for persons that are not Lawful Permanent Residents, and persons that are Lawful Permanent Residents (LPRs) are different and are briefly addressed below.
A successful application for Cancellation of Removal under INA section 240A(b)(1) allows the non-Lawful Permanent Resident to obtain lawful permanent residency and stay in the United States even though he or she is in removal proceedings because he or she is inadmissible or deportable, as long as he or she meets 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).
It is extremely difficult to win a cancellation of removal case, because the standard of "exceptional and unusual hardship" is very high and often difficult to prove to the discretion of the assigned Immigration Judge. Based upon the difficulty of winning these cases, this relief 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 the discretion to decide what constitutes good moral character, and what constitutes an exceptional and extremely unusual hardship, which can be good or bad depending upon your Judge and the facts of your case. Immigration Judges are also aware that Congress places a cap on the number of persons who should be granted this form of relief per year, and are cognizant that this form of relief is only for select cases. 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, certain J visa exchange visitors that did not satisfy their 2 year requirement, or otherwise cannot satisfy the requirements) the Immigration Judge cannot approve cancellation of removal for any reason.
Cancellation of Removal is also a potential remedy for non-Lawful Permanent Residence spouses and children who have been battered or who are the victims of extreme cruelty, under the Violence Against Women Act (VAWA). To prove VAWA cancellation of removal to an Immigration Judge, the basic 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 hardhip, 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 potentially available pursuant to a INA section 240A(a) waiver and a INA section 212(c) waiver. Under INA section 240A(a) an individual can avoid deportation by establishing the following to the satisfaction of the assigned Immigration Judge:
- Must be an Lawful Permanent Resident 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 Lawful Permanent Residents an opportunity to avoid deportation despite the fact that they are inadmissible or deportable. This is a type of cancellation of removal that is very complicated with many potential pitfalls, that only applies to a small number of potential applicants, and for which a skilled immigration attorney is mandatory. The reason an individual pursues INA section 212(c) 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 (but not the only requirements) 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 in the past, and must have 7 years of lawful unrelinquished domicile.
I caution you that 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 just read does not substitute for the need to retain an experienced and capable immigration lawyer to give you great advice and to fully and fairly defend your case. There is also the existence of case law and other statutory law that may modify or influences 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 are also other forms of immigration relief which may be available to you, depending upon the facts and circumstances of the individual, even if you do not qualify for cancellation of removal, such as: asylum, CAT (Convention Against Torture), withholding or removal, 212(h) waiver, I-192, I-212, 601, 601A, U visa, S visa, T visa, CSPA, etc., etc. 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.