Cancellation of removal protects the LPR from forced Deportation/Removal, also keeping eligibility for underlying LPR status, notes Magdalena Cuprys
Cuprys & Associates (N/A:N/A)
— Magdalena Cuprys, Immigration Lawyer
Cancellation of Removal for an LPR (Lawful Permanent Resident) is a Discretionary Immigration Defense or form of Relief from Removal – thereby sparing the Respondent the consequences of forced Removal/Deportation from the United States, notes Ms. Cuprys. This form of relief is only available before a US Immigration Court after an Individual has been placed into Removal Proceedings after the Issuance of an NTA (Notice to Appear).
This form of relief not only protects the LPR (Green Card Holder) from forced Deportation/Removal, yet it also provides for eligibility to retain his/her underlying Lawful Permanent Residence status through this Application process; if found eligible by the Immigration Court.
In order to qualify for Cancellation of Removal and retain Lawful Permanent Residence status before a US Immigration Court, one must demonstrate that the individual as well as his US Citizen and LPR family members would endure extreme hardships as a result of the impending forced separation. Further, the Applicant/Foreign National must also prove the following as well as demonstrate numerous positive equities (examples listed below) which when taken in the aggregate warrant a favorable exercise of discretion by the Court:
1. Continuous Physical Presence:
You have been living continuously in the United States for at least 7 years after having been admitted in any status;
Please note that the date of Issuance of the NTA must be carefully examined, as such date officially ends one’s continuous physical presence date for Cancellation of Removal calculation purposes. Further, one must have qualified Immigration Counsel review the particular Criminal Offenses, as well as the exact dates of the offenses, which can also stop or terminate continuous presence in terms of Cancellation eligibility requirements. This is commonly known as the “Stop-Time” Rule.
2. Green Card Status:
You have been a Lawful Permanent Resident (Green Card Holder) for a minimum of 5 years prior to Application. The Stop-Time Rule is in most cases inapplicable to the Green Card status requirement, as the applicant may count time spent after issuance of the NTA or initiation of proceedings, etc. in order to calculate the 5 year LPR status requirement.
3. Extreme Hardships:
Removal from the USA would cause extreme hardship to the Applicant as well as to the US Citizen or LPR Qualifying Relatives of the Applicant. For example, evidence of a minor child’s medical condition, severity of illness, lack of available and suitable medical care in Applicant’s home country, etc. are strong examples of extreme hardships.
4. Family Ties in the United States
Length of Residence in the USA – which includes age of Applicant at entry to USA and documentation as to level of assimilation into American culture and society;
5. Good Moral Character:
You must demonstrate that you are a good person and possess good moral fiber. Gathering evidence to prove this is critical, and should not be undertaken nor submitted without assistance of Counsel.
6. No Major/Felony Criminal Violations:
Criminal violations in many cases can automatically disqualify the Applicant from eligibility to apply for Cancellation of Removal (i.e. Felony violations which in many cases are deemed Aggravated Felonies under US Immigration Law). Any Violations whatsoever, including all arrests, etc. must be carefully reviewed by Counsel.
7. In the event of a Criminal Conviction, evidence of Rehabilitation and Program Certifications;
8. Evidence and nature of Employment history and level of Education;
9. Property and Business Ties to the US community;
10. Evidence of Community Service (i.e. Volunteer work, charitable contributions, church/religious affiliations, etc.) in which one documents that the applicant is an asset and benefit to the US community at large);
11. Discretionary Relief:
This form of relief is Discretionary, which means it is NOT a right; it is a privilege. The Immigration Judge shall make an individual case determination (on a case by case basis) of whether or not to grant or approve you any such relief from Removal. You must be able to prove to the Court that you deserve this discretionary form of relief.
Cancellation of Removal for Non-LPR:
There also exists another defensive remedy before the US Immigration Court – known as Cancellation of Removal for a Non-LPR (for those who do not possess Green Card status). This should NOT be confused with the Cancellation of Removal standard discussed above which is exclusive to Lawful Permanent Residents. This form of relief from removal was previously discussed in depth in a prior issue of the Cuprys Law Instruction series which is available on-line.
About Magdalena Ewa Cuprys
Magdalena Cuprys is the principal attorney of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases.
Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq
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