Waivers 101 - Cancellation of Removal for Legal Permanent Residents

By: Jose Aponte, Esq.

In my experience as an immigration attorney, there are two questions I repeatedly get asked: 1) How can a person legally immigrate to the United States?; and 2) What can a person who is already in the U.S. do to remain and obtain their “papers?”  Both questions are quite broad and my answer for either has been equally broad, “It depends.”  

Is the person seeking to enter the United States eligible to apply and receive the visa classification they seek?  For example, is the person seeking to enter the United States on a K-3 visa married to a U.S. citizen?  Is the person seeking asylum protection, truly being persecuted in their home country?  Did the individual, who is currently undocumented, enter the country with a visa and overstayed, or did they enter the country without inspection?  Answering these questions help to determine whether or not that person will be allowed to enter or remain in the United States.

Once initial questions like these are answered one must then, proceed to inquire whether there are any reasons that would pose as an impediment for that person to be allowed inside the country.  In other words, once it has been determined that an individual is eligible, the second question is whether or not they are “admissible” to the United States.

The Immigration and Nationality Act (“INA”) list a number of reasons why a person should not admitted into the United States – also known as “Grounds of Inadmissibility.”  Some of these reasons include: 1) criminal grounds; 2) health-related grounds; 3) misrepresentation of information; 4) public charge grounds; and 5) unlawful presence in the U.S., to name a few.  Moreover, for similar grounds, a person that is already in the United States can be deemed removable.

The INA also provides a mechanism which, functions like a remedy for several of these and other grounds. If granted, these remedies function as pardons for a specific violation of immigration law. These pardons are better known as “Waivers.” If used effectively, waivers can be important tools in the advocacy of a client’s interests.

We will begin our series on Waivers by introducing one of remedies potentially available for foreign nationals already present in the United States when the government seeks to remove (deport) them to their country of origin.  This remedy is known as Cancellation of Removal for Lawful Permanent Residents.

Cancellation of Removal for Lawful Permanent Resident

The goal of most immigrants in the United States, is to one day be able to recite the oath of citizenship thereby become one of this nation’s most recent citizen. Not all immigrants, however, aspire to become a naturalized U.S. citizen.  There is a sizable portion of the immigrant population whom, for various reasons, has decided that they wish to remain in the status of a Legal Permanent Resident (“LPR”).  While there is no statute that requires a LPR to naturalize, with time many LPR’s unfortunately discover that Legal Permanent Resident status is not always permanent.

There are a number of situations that allow the U.S. government to strip an individual of their LPR status.  For example, spending more than six months out of the country, or being convicted for a number of certain criminal acts, may expose you to being placed in removal proceedings.  You can easily then find yourself in a situation where you are facing being deported back to a country you have not seen in decades. Cancellation of Removal for Legal Permanent Residents is a defense that, if successful, will allow an individual to remain in the United States and return to their normal lives.

Cancellation of Removal for Legal Permanent Residents was created by the Illegal Immigration Reform and Immigrant responsibility Act (“IIRAIRA”) of 1996 as successor to INA §212(c).  LPR removal cancellation waives most grounds of removal and inadmissibility and is often the only remedy available to an individual with criminal convictions.

Under INA §240A(a), to be eligible for Cancellation of Removal an LPR must have:

·     Been lawfully admitted for permanent residence for, at least, five years;

·     Resided in the United States continuously for seven years after having been admitted in any status; and

·     Has not been convicted of any aggravated felony.

This defense is available only while the LPR is in deportation proceedings in Immigration Court.

An advocates first job is to establish that his/her client (a.k.a. “Respondent”) is eligible for this relief.  Government attorneys will often challenge the respondent’s eligibility for the defense by questioning whether the respondent has met the time sufficiency threshold, a.k.a., Continuity of Residence.

Continuity of residence can be broken in two ways.  First, is a single departure from the United States for more than 90 days, or if there have been more than one departure, for any amount of time less than 90 days, does the aggregate of days exceed 180 days. Continuity of residence can also be lost by the application of the so-called “stop-time rule.” Under this rule, continuity of residence ends when an individual is served with a Notice to Appear (“NTA”), or when the individual commits an offense referred to in INA §212(a)(2), thereby rendering the foreigner inadmissible under §212(a)(2) or removable under §237 (a)(4).

Under INA §240A(c), the following foreign nationals are not eligible for LPR cancellation:

·     Those who entered the U.S. as “crewman” after June 30, 1964;

·     Foreign nationals admitted to the U.S. under J nonimmigrant status;

·     Foreign nationals who are inadmissible and “deportable” under security grounds;

·     Foreign nationals who have persecuted others; and 

·     Foreign nationals previously granted LPR cancellation, suspension of deportation under INA §244(a), or relief under §212(c).

Another important characteristic of this defense that should always be kept in mind is that, like several other remedies in Immigration jurisprudence, Cancellation of Removal for LPR’s is a discretionary relief. The immigration judge makes this determination by balancing the positive and negative factors present in the respondent’s case.  This is known as,  “balancing of the equities.”

Positive factors include; 1) payment of taxes, 2) children, 3) the number of years spent in the United States versus country of origin, 4) having most your family in the United States versus home country, 5) service to the community, 6) any evidence attesting to the respondent’s good character.

Negative factors may include; 1) the circumstances underlying the grounds for removal, 2) the existence of any criminal history, and 3) any evidence of bad character or undesirability.

Cancellation of removal is an attractive remedy to consider using because, if successful, it results not only in the cancelation of all deportation proceedings but, in the full restoration of the client’s LPR status.

Next time on AIS Law Blog:

We will discuss a similar remedy available to individuals facing deportation but who are NOT Legal Permanent Residents. 

Remember that this and all blog entries on this website are for educational purposes ONLY and should not be interpreted as legal advice.  If you have an immigration matter you want to resolve, make an appointment with a duly-licensed Immigration Attorney.  To make a consultation appointment with Aponte Immigration Solutions, please click here.