Cancellation of Removal for Certain Lawful Permanent Residents (LPR Cancellation)
Lawful permanent residents (or what are commonly known as “green card holders”) often think that their permanent residence provides a shield from deportation. Unfortunately, this is not always the case. Green card holders, just like any other immigrant living here in the United States, can be deported if they commit certain crimes or acts.
Some examples of crimes or unlawful acts that cause green card holders to be placed into removal (or what is commonly known as “deportation”) proceedings include drug crimes, theft crimes, crimes involving firearms, violating a protective order, and certain crimes against other persons, usually involving aggravating factors.
That said, however, there is a special type of immigration relief only available to green card holders who have been placed into deportation proceedings: cancellation of removal for certain lawful permanent residents. Cancellation of removal essentially pardons the green card holder for their crimes or unlawful acts and restores his or her permanent resident status. In other words, if a green card holder applies for cancellation of removal, and wins, that individual may keep his or her green card.
A permanent resident can only apply for cancellation of removal if he or she meets certain requirements, as outlined in Section 240A(a) of the Immigration and Nationality Act (“INA” or “the Act”):
1) he or she must have been a permanent resident for at least five years,
2) have lived continuously in the United States for at least seven years after having entered the United States legally in any status, and
3) have not been convicted of any aggravated felony at any time.
The first requirement is simple. That person must been issued his or her green card at least five years prior to applying for cancellation of removal.
The second requirement is slightly more complicated. First, the seven years starts from the day of any lawful entry (or “admission”) into the United States. For example, let’s say you entered using a tourist or student visa and you overstayed, but you eventually got your green card. The seven-year clock starts from the date of your lawful entry on, even if you remained in the United States unlawfully after your temporary visa expired.
Notably, however, you must have continuously lived in the United States for seven years since that lawful entry. Short trips outside of the United States do not break the period of continuous residence, but longer trips may pose a problem.
The seven-year clock also stops ticking when you commit certain crimes or when you are served with your Notice to Appear (or “NTA”—the document that places you into deportation proceedings) during the seven-year period. These crimes include almost any drug crime, two or more convictions where the jail sentences add up to 5 years or more, and certain crimes involving theft, fraud, assaults with aggravating factors, and others.
Finally, with regard to the third requirement, a green card holder cannot qualify for cancellation of removal if he or she has been convicted of an aggravated felony at any time. An “aggravated felony” is a term of art defined in the INA. Many crimes are considered aggravated felonies under the immigration laws, even if the state that prosecuted you for the offense called it a criminal misdemeanor. Some common examples of aggravated felonies include convictions for drug trafficking crimes, certain crimes that qualify as “crimes of violence,” trafficking in firearms, murder, the sexual abuse of a minor, and more.
Our attorneys at the Verdin Law Firm will analyze your eligibility for this relief. If you are eligible to apply, we will use our team-oriented approach to prepare you for your hearing before the Immigration Court. There, we will present all of your positive factors to the Immigration Judge, and argue that these positive factors outweigh any negative factors that may pop up in your background. We encourage you to inquire whether cancellation of removal would help you or any of your family or friends.
Motions to Re-open and to Re-consider
When the Immigration Court issues an unfavorable decision on an individual’s case, he or she may file a motion to reopen or to reconsider with the Immigration Judge that decided his or her case. A motion to reopen or to reconsider is, in its most basic form, a request that the Judge reexamine his or her decision in some particular way.
There are generally two types of motions to reopen. The first applies to orders of removal that have been entered in absentia, i.e., when the individual who was placed into removal proceedings was not present for his or her hearing and was ordered removed. To succeed on a motion to reopen an in absentia order of removal the individual must show either that: (1) hedid not receive proper notice that he was placed into removal proceedings and/or that he did not receive proper notice of the date, time, and place of his removal hearing before the Immigration Judge, or (2) that he did receive adequate notice, but that exceptional circumstances excused his failure to appear for his removal hearing.
The second type of motion to reopen applies to removal orders that were issued after a hearing where the respondent appeared by herself or with her attorney before the Judge to present her case. To succeed on this type of motion to reopen the respondent must show that new evidence exists, that could not have been discovered or presented at the former hearing, which affects the legal result that was reached by the Immigration Judge.
A motion to reconsider is a request that the Immigration Judge reexamine his original decision in light of additional legal arguments, a change of law, or an argument or aspect of the case which was overlooked. To success on a motion to reconsider the respondent must show that the original decision was defective in some regard.
Non LPR cancellation
An individual who is not a permanent resident and who has been placed into removal (deportation) proceedings may apply for non LPR cancellation of removal, provided he or she meets the eligibility requirements.
An individual is eligible for non LPR cancellation of removal if he or she:
1) has been physically present in the United States for a continuous period of at leastten years,
(2)has been a person of good moral character during that ten-year period,
(3)has not been convicted of certain criminal offenses, and
(4)establishes that his or her removal would result in exceptional and extremely unusual hardship to his or her permanent resident or U.S. citizen spouse, parent, or child.
A variety of criminal convictions may render an individual ineligible for cancellation of removal, including those offenses that qualify as crimes involving moral turpitude and certain drug offenses, among others.
If an Immigration Judge grants an individual non LPR cancellation of removal, his or her removal will be cancelled and he or she will receive lawful permanent resident status.