Cancellation of Removal Ferndale MI
Cancellation of Removal is a form of defensive only immigration relief (it cannot be filed affirmatively), that is available to someone once he or she is placed in removal proceedings. This form of immigration relief is a once in a lifetime opportunity, even if the applicant desires cancellation of removal for a basis that is completely different from the previous occasion. There are different types, restrictions, and qualifications 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 addressed in very brief details below.Cancellation of Removal under INA section 240A(b)(1), if awarded by an Immigration Judge, allows the non-Lawful Permanent Resident to become a Lawful Permanent Resident (a green card holder) and stay in the United States. If the non-Lawful Permanent Resident is placed in removal proceedings because he or she is deportable and/or inadmissible and is seeking this type of immigration relief, he or she must satisfy the following criteria under this statute:
1. the person has been physically present in the United States for at least ten years;
2. the person has good moral character for at least ten years;
3. the person has not been convicted of certain crimes listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3);
4. the persons 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).
The granting of Cancellation of Removal is rather uncommon, because the standard of "exceptional and unusual hardship" is very high burden and often difficult to prove to the discretion of the Immigration Judge. Cancellation of Removal should only be pursued if the non-Lawful Permanent Resident or Lawful Permanent Resident is in removal proceedings; the non-citizen should not purposely place him or herself into removal proceedings to try to obtain Cancellation of Removal, even if the individual believes he or she has a very strong case. The Immigration Judge has broad discretion to decide whether the applicant possesses the requisite good moral character, and has broad discretion to decide if an exceptional and extremely unusual hardship actually exists, so there is a risk of not being successful and facing deportation (even with a strong case). Also, Immigration Courts are limited by an act of Congress in the number of Cancellations of Removal they are permitted to grant each year, and therefore the Immigration Judges usually issue this relief in very limited circumstances. If the individual does not qualify for Cancellation of Removal (because of criminal or antiterrorism grounds, the individual is crewman who entered after June 30, 1964, is considered a certain J visa exchange visitors that did not satisfy their two year requirement, previously was granted Cancellation of Removal, or does not meet all of the other requirements outlined above) the Immigration Judge will not approve Cancellation of Removal.
The Violence Against Women Act (VAWA) is a variety of Cancellation of Removal for non-Lawful Permanent Residents who are spouses and children that have been battered or who are the victims of extreme cruelty from a US citizen or Lawful Permanent Resident abuser. The applicant for VAWA cancellation of removal must establish all of the following requirements:
1. individual has been battered by or suffered extreme cruelty from a Lawful Permanent Resident (green card holder) or United States citizen abuser, or is the parent of a child who suffered such abuse;
2. must be present in the US for three years before applying;
3. would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the individual was removed;
4. good moral character during the period of physical presence;
5. 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;
6. merits a favorable exercise of discretion
Other varieties of Cancellation of Removal for Lawful Permanent Residents (green card holders) include INA section 240A(a) waiver and a INA section 212(c) waiver. Under INA section 240A(a) a Lawful Permanent Resident (green card holder) can potentially avoid deportation by attempting to prove the following with the Immigration Court:
1. Must be an Lawful Permanent Resident for at least five years;
2. Must have resided in the United States continuously for seven years after lawful admission;
3. No aggravated felonies, cancellation of removal, INA 212(c) relief, or suspension of deportation in the the past;
4. Does not fall into other categories such as being a terrorist, persecutor, certain crewmen, or an exchange visitor;
5. 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 variety of immigration relief that gives Lawful Permanent Residents a chance to avoid deportation despite the fact that they are determined to be inadmissible and/or deportable. This is a very convoluted, complex area of immigration law with many potential grounds for denial, for which an immigration law expert is absolutely mandatory. The reason a non-citizen pursues INA section 212(c) relief is because it gives the Immigration Court the ability to waive all grounds of inadmissibility, and also the burden is often easier to meet than the standard of "extreme hardship" under INA section 212(h). INA section 212(c)'s general requirements are that the inadmissibility or deportation of the non-citizen is based on one or more criminal convictions from before April 1, 1997 (the date is critical), the individual did not receive Cancellation of Removal on a previous occasion, and the non-citizen must have seven years of lawful unrelinquished domicile in the United States.
The above information about Cancellation of Removal is subject to modification, change, or repeal at any point in time, and is only intended to provide general information. The information that you are reading in no way is a replacement for the need to hire experienced immigration legal counsel to give you solid legal advice and to fully and fairly defend your immigration case. There is also the existence of other government policy, case law, and statutory 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 of the individual that may impact an Immigration Judge's calculation of how long the non-citizen was deemed to be physically present in the United States in order to qualify for Cancellation of Removal. There may be other forms of immigration relief available to the individual, depending upon the individual's prior personal history and the facts and circumstances of their situation, which may (or may not) include the following: I-192, I-212, 601, 601A, asylum, CAT (Convention Against Torture), withholding or removal, 212(h) waiver, U visa, S visa, T visa, CSPA, etc.. A non-citizen who is is required to appear in Immigration Court should always seek legal advice and representation from an outstanding immigration lawyer, such as the lawyers at Hilf & Hilf, PLC.