I am currently working on a cancellation case for an individual from San Francisco. As I work on the case, I am going to write posts on different aspects of this form of relief. This post will discuss the basic statutory requirements for cancellation of removal for permanent residents. (There is another form of relief of cancellation of removal for non-permanent residents but I will not be discussing it in this post.)
Cancellation of Removal is a discretionary form of relief that is available to individuals who are placed into removal proceedings due to criminal and/or immigration violations. The idea is that if they can show that they have been present in the United States for a certain period of time and meet other requirements discussed further below, their removal will be cancelled. In effect what they receive is a second chance to remain in the United States.
The statute that provides for Cancellation of Removal for permanent residents is Immigration and Nationality Act (“INA”) Section 240A(a). This statute allows an Immigration Judge to cancel the removal of an individual if he or she:
- has been lawfully admitted for permanent residence for not less than five years,
- has resided in the United States continuously for 7 years after having been admitted in any status, and
- has not been convicted of any aggravated felony.
In addition, the applicant has to show that he or she has not
- been found by a judge to be a spy, terrorist, threat to national security, persecutor, torturer, to have committed genocide or extrajudicial killing, or severe violations of religious freedom, and
- been previously granted cancellation, or suspension of deportation.
Permanent resident status for five years
The five years starts (is counted from) when the individual has been admitted into the United States as a lawful permanent resident. Time in another status does not count toward this requirement; all five years must be as a permanent resident. If the applicant obtained his or her green card by fraud or mistake, the applicant is not considered to be a permanent resident. Moreover, an applicant generally cannot use his or her parent’s permanent resident status to count toward the five year requirement. However, this interpretation may depend upon the circuit in which the applicant is located. In the 9th Circuit, the Court of Appeals ruled in Mercado-Zazueta v. Holder, 580 F.3d 1102 (2009), that a minor child may rely on his or her parent’s lawful permanent resident status to meet the five year requirement.
Seven years of continuous residence
The time when an individual begins to accrue continuous residence begins when an individual is admitted to the United States in any status. Thus, an admission as a tourist or with a temporary business visa may count. The seven year period must be continuous. There is a great deal of case law on what continuous means but basically it means that an individual must be present in the United States without frequent interruptions.
The seven year period may end if one of the following events occurs:
1. The Department of Homeland Security serves the individual with a “Notice to Appear.” This is the document which lists the charges rendering an applicant removable and is filed in the Immigration Court.
2. The individual commits an offense that renders him or her removable or inadmissible.
If either of these events occur, the individual stops accruing the seven years of continuous residence necessary to apply for cancellation of removal.
No conviction for an aggravated felony
If an individual has been convicted of an aggravated felony, he or she is ineligible for cancellation. A list of crimes that constitute aggravated felonies is found in INA Section 101(a)(43). There is a great deal of case law about what constitutes an aggravated felony. An individual should consult with an immigration attorney and seek post-conviction relief if necessary in order to avoid having a conviction constitute the definition of an aggravated felony.
Cancellation of removal is discretionary
Even if an applicant meets the statutory requirements discussed above, the applicant still needs to show that he or she merits the relief. The Immigration Judge will weigh both the favorable and unfavorable factors in making a decision. My next blog post on cancellation of removal will discuss discretion in more detail.
