Friday, September 01, 2017

Cancellation of Removal

Written by  Linda A. Dominguez

When a person is able to reside in the US without being caught by Immigration and Customs Enforcement (“ICE”) officers for at least ten years, they are eligible for cancellation of removal as a nonimmigrant. This means that they can apply for permanent resident status before the Immigration Court if they can demonstrate several things:

1) their residence in the US before the Notice to Appear was issued lasted for at least ten years from the date of entry

2) they have good moral character and have not been convicted of a crime involving moral turpitude within five years or other crimes as listed in Section 237(a)(2)(A) of the Immigration and Nationality Act

3) they are able to demonstrate “exceptional and extremely unusual hardship” to a qualifying relative, who is a US citizen or permanent resident (child, spouse, or parent), and finally

4) that they are deserving of a favorable exercise of the court’s discretion.

So, how does a person prove these four factors?

The first one is fairly easy if they entered the US with a visa: just make a copy of the passport showing the date of entry. If they entered without a visa, then it becomes more difficult because they need documents to prove they have been living in the US the entire time. Those documents (in both cases) include: leases, utility bills, letters from employers and friends in the US, Federal and state tax returns for every year they have lived in the US.

The second factor can be proven by getting a police clearance report based on fingerprints from every state in the US that they have lived in since entering the US, as well as copies of any child-support orders (and proof that they are paying the required child support), tax returns, and letters from family and friends stating that the person is a good person and contributes to the wellbeing of the community in which they live.

The third factor is the most difficult to prove because it is a given that the relatives a person leaves in the US will suffer emotional hardship because they are no longer living in the US with them. If the spouse, parent, or child suffers from a medical condition and the person in removal proceedings is a key provider of health care for the relative with the medical condition, this is the ideal scenario to prove exceptional and extremely unusual hardship. The person must also show that the medical condition cannot be treated properly in the country of their birth so that taking the relative with them is not possible. There is case law that says this level of hardship may be proven if the person is able to show that they are the sole financial support of the qualifying relative (without a medical condition) and there is no one else to care for the relative if they are removed from the US. However, this is not easy to do. Anyway, a lot of documents and records are needed to demonstrate the level of hardship required by law.

Finally, the court has the discretion to deny the application if it feels that the positive factors do not outweigh the negative factor of being illegally in the US. If the person is able to prove the first three factors, then usually the only reason why the court would deny the application as a matter of discretion is if they show arrogance in court or refuse to agree to obey the laws of the US. So, the lesson here is to be humble and agreeable because they are asking for a benefit that can be granted or denied at the whim of the court. While a person does have the right to appeal a denial based on the Court abusing their discretion, it is better and easier on the mind and heart (not to mention the wallet!) to not need an appeal to the Board of Immigration Appeals. The court’s granting of the application for cancellation of removal results in permanent residence or green card for the person in removal proceedings.

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