Cancellation of Removal
Are you in Removal Proceedings? Is the government trying to deport you? In that case, you might qualify for a particular form of relief. It is known as Cancellation of Removal for Lawful Permanent Residents. Under United States Immigration Law, even though you are removal and deportable, this might get you your ‘get out of jail free card’.
Normally, for those people who already have their Green Cards and are permanent residents in the United States, it is important to understand that this is a form of immigration relief to allow you to keep your green card and not be deported. You would remain as a lawful permanent resident. Keep in mind that this form of relief is usually applied for in immigration court when the applicant has permanent residence (the green card) and has committed a crime. They usually are serving time in jail and then once the sentence is completed, they are transferred to immigration detention. There the immigration court will try to deport you.
What is needed in the Cancellation of Removal Packet
While in removal proceedings and while the immigration judge is trying to deport you, the immigration judge will allow you if you qualify to apply for cancellation of removal for lawful permanent residents.
If you are a lawful permanent resident and find yourself in removal proceedings, you may be eligible for a form of relief called cancellation of removal for lawful permanent residents or LPRs. This relief is available only for people in Immigration Court, before an Immigration Judge. It allows you to retain your green card. In order to succeed, however, you must prove that you:
- have been a lawful permanent resident of the U.S. for at least five years at the time that the application is filed
- have continually resided in the U.S.for at least seven years after being admitted in any status and before the “stop-time rule” is triggered
- have not been convicted of an aggravated felony
- have not received cancellation of removal or 212(c) relief in the past, and
- as a matter of discretion, deserve to win your case and keep your green card.
Try to show Good Moral Character
Having good moral character is not a specific requirement of cancellation of removal for lawful permanent residents. However, it is an important factor for the immigration judge to make a decision. Clearly, the crime which landed you in removal proceedings in the first place has issues as to whether you have good moral character and under many other circumstances, you would not. However, minus that particular crime, you can properly argue the good points of your good moral character to the Immigration Judge. Look to lack of other crimes, job history, family, religious meetings, school, etc.
If you have not had your green card for at least five years, unfortunately, you are not eligible for this form of relief from deportation. The most important factor that an Immigration Judge will look to regarding this requirement is that you obtained your green card lawfully. If you obtained your green card by fraud, or were otherwise ineligible to receive a green card, you are not eligible for cancellation of removal.
How does the Stop Time Rule work
To qualify for cancellation of removal for lawful permanent residents, you must have continually resided in the U.S. for at least seven years after being admitted in any status and before the “stop-time rule” is triggered.
What does “admitted in any status” mean? Unfortunately, that depends on which federal circuit court jurisdiction you live within. According to a 2018 decision from the Board of Immigration Appeals (B.I.A.), it means in most circuits that the person had lawful immigration status when admitted to the U.S. (most likely gained by showing a green card). But the Fifth and Ninth Circuits had previously issued decisions more broadly interpreting “in any status” so that, for example, a “wave through” would be sufficient.
The stop-time rule is triggered by your either:
- being issued a Notice to Appear (the document placing you in Immigrant Court proceedings)
- committing a crime referred to in the Immigration and Nationality Act (I.N.A.) §212(a)(2), or
- committing a security or related offense described in I.N.A. §237(a)(4).
The Notice to Appear will list the charges against you–the reason you are inadmissible or deportable.
Once the government files the Notice to Appear with the Immigration Court, the so-called “clock” counting your presence in the U.S. stops running. If you haven’t reached seven years by that point, you are not eligible for cancellation of removal.
Another way the clock might stop running is if you commit one of the types of crimes listed in I.N.A. §212(a)(2) or a security offense listed in I.N.A. §237(a)(4). These include crimes involving moral turpitude and controlled substance offenses. The clock stops on the day the crime is committed, at which point your time in the U.S. stops counting for the seven-year requirement.
Aggravated Felony Statutes
This many times is the reason you will not qualify for Cancellation of Removal. However, a good immigration lawyer might be able to argue that it is not an aggravated felony, and therefore, making you eligible for Cancellation of Removal for lawful permanent residents.
Any aggravated felony conviction will make you ineligible for cancellation of removal. There are a number of crimes that are deemed aggravated felonies, but some of the most common are: crimes of violence where you were sentenced to one year or more of imprisonment (regardless of time actually served), murder, rape, drug-trafficking crimes, theft or burglary if you were sentenced to one year or more of imprisonment (again, regardless of time actually served), and crimes involving fraud where the loss to the victim exceeds $10,000. An attempt or conspiracy to commit any aggravated felony is also deemed an aggravated felony.
A full list of aggravated felonies is found in I.N.A. §101(a)(43).
The Decision by the Immigration Judge is Discretionary
Note that there is no requirement that the Immigration Judge must say ‘yes’ to granting the cancellation of removal. You must convince her or him and show why they should agree to allow you to stay inside the U.S. as a lawful permanent resident, even though you committed a crime and even though you are inadmissible.