Cancellation of removal for certain nonpermanent residents

It is not only lawful permanent residents (green card holders), as discussed in a previous article, but also certain nonpermanent residents (without a green card) who are placed in removal (aka deportation) proceedings are eligible for relief known as cancellation of removal if they meet the requirements prescribed by the Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and case law. An LPR who obtained such status by fraud or mistake and was barred from applying for cancellation for lawful permanent residents under INA § 240A(a) may apply for cancellation of removal as a nonpermanent resident under INA § 240A(b), provided it is timely. See Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005)

STATUTORY ELIGIBILITY

INA § 240A(b)(1) [8 USC § 1229b(b)(1)] provides:

“The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application [The period of continuous physical residence is deemed to end when the alien is served a notice to appear or when the alien has committed an offense referred to in INA section 212(a)(2) that renders the alien inadmissible under INA section 212(a)(2) or removable under section 237(A)(2) or 237(a)(4). An alien is considered to have failed to maintain continuous physical presence if the alien has departed from the U.S. for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days];

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under INA section 212(a)(2) [certain criminal offenses], 237(a)(2) [certain criminal offenses], or 237(a)(3) [failure to register and falsification of documents], subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).

INA § 240A(b)(2) [8 USC § 1229b(b)(2)] provides a special rule for a battered spouse or child.

ALIENS INELIGIBLE FOR CANCELLATION OF REMOVAL

Cancellation of removal is not available to the following aliens:

(1) An alien who entered the United States as a crewman subsequent to June 30, 1964.

(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J), or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e).

(3) An alien who- (A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training, (B) is subject to the two-year foreign residence requirement of section 212(e), and (C) has not fulfilled that requirement or received a waiver thereof.

(4) An alien who is inadmissible under section 212(a)(3) [security and related grounds] or deportable under of section 237(a)(4) [security and related grounds].

(5) An alien who is described in section 241(b)(3)(B)(i) [persecuted others].

(6) An alien whose removal has previously been canceled under this section [240A] or whose deportation was suspended under section 244(a) or who has been granted relief under section 212(c), as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

FACTORS CONSIDERED IN EXERCISING DISCRETION

As in cancellation of removal for lawful permanent residents, the nonpermanent resident must also establish that he/she warrants a favorable exercise of discretion by the Attorney General, represented by the Immigration Judge. That discretion is not absolute. In Matter of Mendez, 21 I&N Dec. 296, 300-301 (BIA 1996), the Board of Immigration Appeals said that the IJ must balance the positive equities and adverse factors with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country.

In Matter of Mendez, 21 I&N Dec. 296, 300-301 (BIA 1996), the Board set out the factors used in weighing the positive factors or equities and negative factors of an alien seeking cancellation of removal.

Positive Factors or Equities: (1) Family ties within the United States; (2) residency of long duration in this country; (3) evidence of hardship to the alien and family if the alien is excluded and deported; (4) service in the Armed Forces; (5) history of stable employment ; (6) existence of property or business ties; (7) existence of value and service to the community; (8) evidence of genuine rehabilitation if a criminal record exists; and (9) other evidence attesting to the alien’s good character.

Negative Factors: (1) Nature and underlying circumstances of exclusion ground at issue; (2) additional significant violations of this country’s immigration laws; (3) existence of criminal record, and if so its nature, recency, and seriousness, and (4) the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country.

Form EOIR-42B is used in applying for cancellation of removal for certain nonpermanent residents. The Form contains advice and instructions. There is a filing fee of $100 and a biometrics fee of $85.

PRACTICE TIP: The alien should consider retaining the services of an experienced, competent, and hardworking (not hardly working) attorney who must establish the eligibility requirements with evidence, particularly the requirement of “exceptional and extremely unusual hardship,” and who must successfully answer the ultimate question to be resolved: is it in the “best interests of this country” to grant cancellation of removal?

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has also a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.MilitaryandCriminalLaw.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with retired Manila RTC Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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