January 20, 2011
The Department of Homeland Security (DHS) has made it abundantly clear that one of its top priorities is to remove individuals from the United States who do not have lawful immigration status. While focus is placed on individuals with a criminal background, the DHS is also actively pursuing removal proceedings against individuals when a petition or application is denied. It is therefore imperative to understand the laws surrounding eligibility for Cancellation of Removal when an individual is out of status in the United States.
Cancellation of Removal (COR) is an application that may only be submitted to an Immigration Judge after an individual has been placed in removal proceedings. If granted, an individual would be granted lawful permanent residency to the United States.
The first requirement to qualify for COR is that an individual must have 10 years of continuous physical presence in the United States. The running of the 10-year clock ends once an individual has been served a Notice to Appear, which is the document that initiates removal proceedings. As such, it may be wise to delay the filing of a petition or application if an individual is approaching the 10-year mark just in case the petition or application is denied. The 10-year clock also stops once an individual has committed a criminal offense that renders him inadmissible from the United States.
The second requirement is that an individual must prove that he is a person of good moral character. The judge will consider factors such as the payment of income tax returns, any criminal record, fulfillment of child support obligations, receipt of government welfare, any fraud or misrepresentation committed, any other factors that may tend to show if an individual deserves the opportunity to become a permanent resident of the United States.
With respect to an individual with a criminal conviction, the consequence of a criminal conviction will depend on the type of crime involved. If minor, the individual may still be eligible to apply for COR; however, it will impact the judge’s assessment of good moral character. Other crimes, such as crimes involving moral turpitude and certain drug-related crimes, will actually bar an individual from even applying for COR.
The final requirement for COR is the most difficult one to handle. To be granted, an individual must convince the court that a qualifying relative(s) would suffer exceptional and extremely unusual hardship should the individual be deported from the United States. A qualifying relative is a parent, spouse, or child who is a United States citizen or lawful permanent resident. This includes step-parents and step-children, which under the immigration laws require that the marriage establishing the step relationship was entered into before the child’s eighteenth birthday.
The judge will consider any and all factors to determine whether a qualifying relative(s) would suffer exceptional and extremely unusual hardship. Since there is harm anytime an individual is deported from the United States, COR will be granted only when an individual can differentiate the normal harm experienced from exceptional and extremely unusual hardship.
Family separation is an important factor; however, the courts view family separation as a choice. As such, an individual must be able to describe the hardship on the qualifying relative(s) should they remain in the United States without the individual, as well as the hardships the qualifying relative(s) would encounter should they leave the United States with the individual. Other factors considered include, but are not limited to, the extent of the individual’s family members in the home country, the age of the individual’s children, ability to speak the foreign language, educational consequences, health-related issues, financial impact, and emotional and mental anguish.
Finally, even if all of the fundamental requirements are shown, the immigration judge will also determine if COR should be granted in his discretion. The judge will essentially weigh the positive and negative aspects of the case against one another to determine whether the individual deserves the opportunity to be given lawful permanent residency.
The prospect of being deported from the United States is unfortunately becoming more prevalent due to the rise of enforcement measures being undertaken by the DHS. Because removal proceedings are an extremely stressful and frustrating experience, individuals who are able to proceed with a Cancellation of Removal application must ensure that they have the best possible representation so that the extreme hardship that would be encountered can most effectively be conveyed to the court. Since the consequence of denial, namely deportation, is so severe, individuals must ensure that they maximize the possibility of being granted the prized status of that of a lawful permanent resident of the United States.