What is Cancellation?
Permanent resident cancellation is a form of relief from removal. Only those who have a green card can qualify, but even those with a green card can be disqualified from getting a cancellation hearing. This form of relief requires that an application be properly filed and that enough evidence is presented to pursuade the court to grant cancellation.
What Can Be Done to Avoid Disqualification or Having to File for Cancellation?
Well, it is always best not to have to be charged with removal and be required to go to immigration court. Many attorneys will try to prevent clients from getting convictions. Many hope that clients will see them before they are arrested or charged with deportation. This way, an attorney can remind a lawful permanent resident of the many ways that foreigners can be deported. An immigration attorney's goal should be to encourage all of those who are lawful permanent residents to become U.S. Citizens.
However, if we are not that lucky, then attorneys hope to inform these clients of all of the challenges that they can have as lawful permanent residents. There is also hope that the attorney will be informed at the time that a client is arrested. This allows us to encourage police and prosecutors to carefully consider what is in the best interests of justice.
If the facts are questionable or the witnesses are less than believable, then we want to let prosecutors know that such a criminal conviction often has a tragic effect like deportation on a lawful permanent resident, which affects his or her family, as well. At times, an immigration attorney must recommend that the old criminal conviction be vacated or re-opened, if possible, which can cost even more money.
Okay, So I Messed Up, What are the Requirements?
Those who qualify to file must show that they (1) have been a permanent resident for at least five years; (2) lived in the U.S. for seven continuous years in any lawful visa status before being placed in Immigration Court; and (3) the permanent resident cannot be convicted of what is considered an aggravated felony for immigration purposes.
An applicant must next show that they deserve a favorable decision. However, it is totally within the control of the Immigration Judge to decide whether to grant cancellation of removal. In addition, cancellation can only be granted one time. Finally, if you were already granted suspension of deportation, then you cannot normally qualify for cancellation at this time.
What is an Aggravated Felony, anyway?
It is too often difficult to appreciate how to qualify. Many get extremely confused about what is an aggravated felony. In fact, both attorneys and immigration judges dispute over what are aggravated felonies for immigration purposes. Some state crimes that are labeled felonies may arguably not be aggravated felonies for immigration purposes. At times, careful pleas and sentencing agreements may make the difference in whether someone can file for cancellation in the future.
What is a 'Conviction?'
Attorneys even argue over what is a proper ground for deportation and what is a 'conviction' for immigration purposes. Some clients may not think that they have a conviction, but actually do! The challenge is that too many criminal attorneys don't know immigration law! This upsets permanent residents who may have paid a lot of money to a criminal attorney, but end up getting deported due to a deportable crimnal conviction that bans them from filing for cancellation.
When do I Mess Up By Stopping the Time?
Well, some who could have qualified may have stopped the 5 or 7 year time period by getting convicted of a deportable crime or charged with a civil offense before they have enough years of permanent resident status or continuous presence. Whether the time has stopped can be another legal battle in court.
What Evidence Do I Need to Get the Immigration Judge's Sympathy?
Well, whether the Immigration Judge believes that a person should have their deportation cancelled may be the most difficult challenge in some claims. There are no exact rules. The Immigration Court 'may,' not 'must,' cancel removal. This is often where attorneys may have to spend the most time. However, other legal issues can also create time consuming legal arguments. Again, the goal is to end the case without having to get a deportation order and not be required to seek relief. When this is not possible, the cancellation applicant has to be extremely apoligetic, careful, humble, truthful and possess other characteristics best explained by an experienced immigration attorney.
In fact, the goal should be to avoid violating a civil immigration law that results in a deportation order that requires a cancellation of removal hearing.
Permanent resident cancellation may be one of several ways to seek relief from deportation. This is why I strongly recommend an appointment with a candid and experienced immigration attorney. Perhaps, another options is available, where an applicant is disqualified from cancellation.
The above is general information and does not create an attorney client relationship.