Written by attorney Brian David Lerner

Cancellation of Removal for Lawful Permanent Residents

I'm in Deportation Proceedings. Can I apply for Cancellation of Removal?

Question: I'm in deportation proceedings and somebody stated I can apply for Cancellation of Removal. Can you shed some light on this and what is required?

Answer: The Attorney General may cancel the may cancel the removal of an Lawful Permanent Resident (LPR) if he or she: Has been “lawfully admitted for permanent residence" for 5 years, been physically present inside the United States for 7 years, is not convicted of an aggravated felony and in the discretion of the Immigration Judge, Cancellation of Removal should be granted.

Question: What is meant by being lawfully admitted for permanent Residence for 5 years?

Answer: On it's face, it is fairly clear. It means when you have received your lawful permanent residency and you must have at least 5 years of residency upon applying for Cancellation of Removal. However, a person who obtained LPR status by fraud or mistake is deemed to have not been “lawfully admitted for permanent residence. An example would be where LPR status fraudulently obtained through bigamous marriage, respondent ineligible for cancellation. Other examples would be: Where petitioner fully disclosed his prior drug conviction but DHS granted AOS by mistake. A person given Voluntary Departure breaks the residency and would not have qualified if less than 5 years of residency. Basically you want to look at and determine if there was any fraud at the inception of obtaining residency. If you are not an actual resident now, this will also not work.

Question:What is meant by being physically present in the United States for 7 years?

Answer: Again, on its most basic level, this would apply assuming you entered the United States legally over 7 years ago. However, there are some issues. For example, continuous residence not required where the person has served in an active duty status in the Armed Forces for a minimum of 24 months and if separated, was honorably discharged, and was in the U.S. at the time of enlistment or induction.

Admission in “any status" includes admission as a temporary resident. The 7-year period must be continuous. Although physical presence is not the test, traveling back and to a foreign country will preclude you from establishing continuous residence. The 7-year period is deemed to end when the person is served with an Notice to Appear or has committed an offense that renders him or her inadmissible or removable Applicant may accrue a new 7 years when he sought to reenter as LPR after commission of a crime.

Question: What is meant by an aggravated Felony?

Answer: Since 1996, the definition of what is considered to be an aggravated felony has greatly increased. Therefore, if the Immigration Judge rules that you have committed and aggravated felon, then you will not be eligible for Cancellation of Removal for Lawful Permanent Residents. Now if you happen to have an undisputed aggravated felony, then it would be advisable to try to seek criminal relief on that particular crime so that you can either vacate it or reduce it so that you will not be considered an aggravated felon.

Question: If I do not meet either the 5 years of Lawful Permanent Residency, or the 7 years of physical presence, can I use the presence of my mother or father who would easily meet these requirements and add it to my current residency?

Answer: The Board of Immigration Appeals has held that a parent’s LPR status may not be imputed to give a child the necessary 5 years of LPR status to qualify for cancellation. It has been held that it is a reasonable construction of the statute to require each applicant to separately meet the residence requirements, and neither the 5 years of LPR status nor the 7 years of lawful admission requires the imputation of the parents’ residence to the child.

Question: What is meant by the stop-time rule?

Answer: This is basically if you commit a specified crime within either the 5 year residency requirement or the 7 year physical presence requirement, it stops the time from accruing, thereby possibly making you ineligible for Cancellation of Removal for Lawful Permanent Residents. Therefore, it would be critical to find out when the crime occurred and whether it renders you ineligible for Cancellation of Removal for Lawful Permanent Residents.

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