ABCs of Immigration: Cancellation of Removal for Non-lawful Permanent Residents

Posted on: December 30th, 2016
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What is Cancellation of Removal?

Cancellation of removal for non-lawful permanent residents is a defense to deportation, and a pathway to a green card for people who are in removal (deportation) proceedings.

There is a separate form of relief, called “cancellation of removal for lawful permanent residents,” that is available for people in deportation proceedings who already have green cards. There are also special types of cancellation of removal for people who have experienced domestic violence by a spouse or parent, and those applying under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

This article focuses only on non-LPR cancellation of removal.  Below are answers to common questions about cancellation.

 

What do I have to prove to win Cancellation of Removal?

You have to prove four things, each of which are explained in further detail below:

  • You have been physically present in the United States (in any status, or without status at all) for at least ten years.
  • You have been a person of “good moral character” for at least ten years.
  • You do not have any disqualifying criminal convictions.
  • You have a US citizen or Lawful Permanent spouse, parent, and/or child under 21 who would suffer “exceptional and extremely unusual hardship” if you are deported.

 

How do I prove that I have been physically present in the US for ten years?

Your “ten years of physical presence” stops as soon as your “Notice to Appear” (NTA) is issued.  The NTA is the charging document that starts your immigration court proceedings. This means that unfortunately, if you entered the US in 2009 and you are detained and issued an NTA in 2017, you are not eligible for Cancellation even if your final hearing isn’t until 2020.

To prove physical presence, you can use any document that shows that you were living in the US: taxes, lease agreements and mortgages, birth certificates of children, medical records, bills, bank statements, employment records, letters and affidavits from family and friends, etc. This is sometimes tough for people without status who have lived their lives in the shadows, but the more documents you can provide, the stronger the case will be.
If you have left the United States and returned in the 10 years before your removal proceedings started, your lawyer will also need to analyze the exact dates.  You will need to show that you were never away from the United States for more than 90 days in one trip, and no more than 180 days total.

Other problems, including certain criminal convictions, can “stop the clock” and prevent you from showing 10 years of physical presence.

 

How do I prove that I’ve been a “person of good moral character” for ten years?

“Good moral character” is a two-part concept.  First, there are certain things that outright bar you from having “good moral character” and make you ineligible for cancellation if they happened during the 10 year period.  Examples include people who have served a criminal sentence of at least 180 days, people who have participated in genocide or torture, and people who have two or more convictions for gambling-related offenses.

Even if you don’t have anything that absolutely disqualifies you, a judge can take into account almost anything in your life to determine whether you are a “person of good moral character.”  Positive factors generally include: maintaining employment and paying taxes, participating in volunteer work or religious activities, good relationships with family members and the community, and showing “rehabilitation” for any negative factors (for example, attending Alcoholics Anonymous after having a DUI).  Negative factors include: any non-disqualifying criminal record such as a DUI, failing to maintain strong relationships with children (such as failing to pay child support), failing to pay taxes, etc.  You don’t have to be an absolute angel, but if there are any negative factors in your case, you will want to have lots of positive factors to help the judge justify a decision in your favor.

Strangely, the ten years for good moral character is calculated differently than for physical presence.  Your ten years for “good moral character” ends on the date of your final hearing, so you keep accruing “good time” after your court proceedings start.  For example, imagine that you have two gambling convictions from January 2010.  If your NTA is issued in 2017, you do not yet have 10 years of “good moral character” because you have two gambling convictions within 10 years.  However, if your final hearing is after January 2020, you will become eligible, because the gambling offenses are now outside your 10 year period.

 

What types of criminal convictions disqualify me from Cancellation of Removal?

Unfortunately, the criminal bars to cancellation of removal are extremely broad and complex.  Many crimes, including some that seem relatively minor such as shoplifting, assault, or simple possession of most drugs, can make you ineligible, no matter how strong the rest of your case is.

Many people believe that if their criminal case is “closed” or “taken care of,” especially if they never served any jail time, they will not face any immigration consequences.  We often hear “but I already paid my fine and completed my probation! Why does the judge care about this old case?” Unfortunately, immigration law is very unforgiving, and even if you have put a legal problem behind you, an immigration judge will take it into account.

An immigration lawyer will be able to analyze all of your court records and explain whether any particular criminal case disqualifies you, or if it will simply factor into the judge’s “good moral character” analysis.  The effect of any given case will depend on what statute you were charged under, what your sentence was, how long ago it was, what other types of convictions you have, whether you have shown “rehabilitation,” and even what the police report says.

 

How do I show that my spouse, parent, or child will suffer “exceptional and extremely unusual hardship” if I am deported?

If you are otherwise eligible, “hardship” to your qualifying relative is the heart of your cancellation case.

A qualifying relative must be a US citizen or Lawful Permanent Resident, and must be your spouse, parent, or child (under 21 years old at the time of the final hearing).  An adult child does not count, siblings do not count, and an unmarried partner does not count.  Same-sex spouses can be qualifying relatives just like opposite spouses, as long as they are lawfully married.  You can have more than one qualifying relative.

Of course, as human beings we understand that any family separation or relocation is extremely difficult and painful.  However, in order to win a cancellation case, you must convince the immigration judge that the court that the hardship your relative would suffer is beyond the “normal” or “average” suffering that people experience when a relative is deported.

Common types of hardship include medical, emotional, financial, and cultural.  An experienced immigration attorney analyze each case individually and creatively in order to document all types of hardship that the qualifying relative would suffer, and to prepare the relative to testify in court (if she is able) about her hardship.

Here is an example of a very strong cancellation case, which would probably win if it is well documented, and if there are no other strong negative factors:

Jose is in removal proceedings.  He is a single father of a US citizen daughter.  Jose’s daughter is 7 years old and has a very serious and rare type of cancer.  If Jose is deported and his daughter goes with him to his home country, she would not be able to get the necessary medical care she needs, and she would die.  Jose also takes care of his elderly father, who is a Lawful Permanent Resident.  Jose’s father survived a civil war in Jose’s home country, and is both physically disabled and emotionally traumatized.  If Jose is deported, his father will not be able to afford a home health aide to address his day-to-day needs, and he may become suicidal if he is unable to cope emotionally with being left alone.

Here is an example of a fairly weak case that probably will not win, even if there are no other strong negative factors:

Ivan has a US citizen wife who is healthy and financially independent.  The couple met and married very recently, and have never lived together because they have jobs in different cities.  Ivan comes from a middle-class family in a stable, English-speaking country where his wife could easily find a good job.  Even though Ivan has a qualifying relative for purposes of cancellation of removal, it would be challenging to show that she would suffer “exceptional and extremely unusual hardship” if she has to relocate to Ivan’s country or remain in the US without him.

 

Can I get a work permit (employment authorization document) while I’m waiting for my case to be heard?
Yes.  As soon as you have paid the government filing fee and filed your initial application for cancellation of removal, you can apply for work authorization.  Usually you will get an employment authorization document (EAD) that is valid for one year; you can keep renewing it while you’re waiting for your final hearing, and again after the final hearing while you are waiting for the judge’s decision.

 

How long does it take to win a Cancellation of Removal case?

Currently, approximately four years for non-detained cases. If you are detained and unable to get released on bond, you may only have a few months to prepare your case.

There are two reasons for the very long delay.  First, there are not enough immigration judges to promptly hear everyone’s case.  In the Memphis Immigration Court (which serves all of Tennessee, Arkansas, and Kentucky, as well as Mississippi north of Jackson), people typically have to wait between 18 months and two years between their first preliminary hearing, and the final individual hearing where their case is heard.  Some courts in other parts of the country move a bit faster or slower.

Second, there are a fixed number of green cards given every year for winning Cancellation of Removal cases.  This means that there is a long waiting list.  At the final hearing, the applicant usually has to wait another 12 to 18 months to find out whether she will win her case or be deported.  For now, this means that even people who eventually lose their cases are able to continue to renew their work authorization and remain in the United States for another year or two after their hearing.

However, in the fall of 2016 the Department of Justice proposed a chance to this rule which would allow judges to deny cancellation cases and order people deported immediately at their final hearings.  Winning cases would still have to wait a year or two to get their green cards, but at least they would have a better idea at the date of their hearing whether they would ultimately be successful.

 

I heard that if I’m not currently in removal proceedings, there’s a form I can file to apply for cancellation of removal and get my work permit. What’s that about?

WATCH OUT! This is a common myth and a common scam.  Cancellation of removal is only available in removal proceedings, which means that if the government is not currently trying to deport you, you are not eligible to apply.

However, there are some scam artists who will promise to “get you a work permit and a green card because you have been here for 10 years.” Usually, these are “notarios” who are not authorized to practice law and who take advantage of people’s hope and ignorance.

What they do is file a form I-589, which is an application for asylum.  Sometimes they don’t explain to their clients what they are signing, and sometimes they even encourage people to make up fake requests for asylum.  They know that the asylum case will eventually be denied, which leads to the person being referred to immigration court. In the meantime, the client can apply for work authorization based on the pending asylum claim, and so they believe they have received a benefit when in reality the notario has increased their risk for deportation.  The client believes that everything is fine, but eventually she winds up in deportation proceedings where the fake asylum claim makes her ineligible to apply for cancellation of removal.

If you are genuinely afraid to return to your country of origin, and you are also eligible for cancellation of removal, you should talk to an experienced, reputable immigration lawyer about the possibility of filing an asylum claim.  A good immigration lawyer will evaluate your asylum case and give you a realistic picture of how likely you are to succeed with your initial asylum claim.  She will explain that if you are not successful with your asylum claim, you will be referred to immigration court where you will have a second chance to present your asylum case, or to apply for cancellation of removal. She will also evaluate your possible cancellation of removal claim and give you an idea of how likely you are to succeed.  An ethical lawyer will help you understand that coming out of the shadows to file a weak asylum claim is very risky, and that cancellation of removal is never a guaranteed “backup plan” because at the end of the day, the judge has a lot of discretion and you do not know what your qualifying relative’s hardship will be in two, three, four, or five years.

 

What should I do to prepare myself for Cancellation of Removal if I am not currently in removal proceedings?

If you are not currently in removal proceedings, you can still take action to make sure that your case is as strong as it can be, in case you ever find yourself before an immigration judge.

  • Keep records. Keep a file of any paperwork that can show that you are physically present in the United States: bank statements, leases from prior apartments, W-2s and letters from prior employers, holiday cards from friends and family members addressed to you, etc. If you have qualifying relatives who have any kind of health problem, disability, learning disorder, or emotional challenges, get it evaluated and keep all records from medical, educational, and mental health professionals.

 

  • Evaluate your criminal record. A lot of people think that their past arrests can’t hurt them if the case was dismissed, or if they completed their sentence or probation, or if they paid their fine. This is not true.  If you have ever been in handcuffs, ridden in the back of a police car, got a notice in the mail to come to court, seen a judge, spent the night in jail, etc, you may have a case that will affect your eligibility for cancellation.  If you don’t have records, call each court and ask for your “record of disposition,” and if possible, all other documents in the court file including police reports, complaints, docket sheets, and plea sheets.  Bring these documents to an experienced immigration attorney, who can evaluate whether you are eligible for cancellation, how your criminal record will affect the strength of your case, and whether you may want to consult with a criminal attorney about getting any of your cases reopened and vacated.

 

  • Show rehabilitation. If you’ve ever had a problem with drugs or alcohol or violence, especially if you’ve ever been arrested for a DUI or assault, take action now.  Of course, reasonable people understand that a person can make a mistake and drive drunk once or twice, without being an alcoholic. We also understand that people may plead guilty to DUI even if they were totally sober and innocent, just to avoid the expense and risk of jail time.  However, immigration judges take DUI very seriously.  A judge will want to see that you recognize the problem and have taken action to make sure it never happens again.  Attend Alcoholics Anonymous or a similar program, and keep records of your attendance.  Attend individual counseling or therapy or rehab.  Similarly, if you’ve ever had an arrest involving violence (including simple assault or “just a fight”), or gambling, now would be a good time to think about what happened, and enroll in an anger management program, gambling recovery program, or individual counseling to show that it won’t happen again.  For extra rehabilitation “bonus points,” you can volunteer with a support organization like AA, or contact a group like Mothers Against Drunk Driving to tell your story to teens.

 

  • Don’t get arrested. As explained above, there’s no time like the present to get help if you’ve ever had a problem with drugs, alcohol, violence, or gambling. Understand that even though marijuana is now decriminalized under many local and state laws, possession of even a small amount is still a federal crime.

 

  • Don’t commit fraud or pretend to be a US citizen. Lots of people work with false documents, accidentally register to vote when they apply for a driver’s license, or file taxes claiming false dependents.  Now is a good time to get a Tax ID Number (TIN) so you can file under your own name, and consult a professional to make sure you’re filing everything correctly and lawfully.  Don’t use fake documents or check a box on any forms claiming to be a US citizen. These actions can disqualify you from cancellation of removal, or make it harder to win.

 

  • Ask an immigration attorney about other forms of relief. Even if you can’t apply for cancellation of removal right now, there may be other pathways to status for you.  For example, there are programs to help people get green cards if they have been a victim of a serious crime and cooperated with police, if they have been a victim of domestic abuse by a US citizen or lawful permanent resident, or if they are a child who has been abused or abandoned by one or both parents.  We even occasionally see people who are United States citizens and didn’t even realize it!

 

Prepare for bond.  If immigration agents arrest you, you may need to pay a bond in order to get out of detention.  All of the actions described above to help prepare your cancellation case will also help your request for reasonable bond, because an immigration judge will evaluate whether you are a danger to your community, how likely you are to ultimately be successful in your cancellation case, and whether you are likely to return to court.  Understand that if you have a DUI or drug-related arrest, your bond may be as high as $10-15,000, and if you have multiple arrests, it may be hard to get a bond at all.  Unlike some state jails, you have to pay the amount in full before you are released; immigration bond companies can be difficult to access or charge extremely high fees.  Start putting money aside now, if you need to, and think about which friends and family members may be able to contribute in a pinch.  Even if your bond is very high, paying it is always a good idea, because it is very challenging to win a cancellation case from detention.  Your case will move much more quickly, it will be harder to prepare your records and testimony, and you may be tempted to give up on your case if you are unsuccessful and need to appeal.

 

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