New York Cancellation of Removal Attorney
Removal Defense
Cancellation of removal is only available to individuals who are in removal proceedings. When a person is in removal proceedings, this means that the Department of Homeland Security is trying to deport them. This benefit is not available to individuals whose case is not before an immigration judge. Due to the discretion involved on the part of the judge, it is important to consult with a cancellation of removal attorney to learn more about the process.
A big part of the process of convincing the judge is providing as much evidence as possible to show that you meet the basic requirements and also “deserve” the benefits of cancellation.
Meeting The Ten Years’ U.S. Residence Requirement
To qualify for non-LPR cancellation, you must be able to show that you have been continuously physically present for the ten years immediately before the date that you apply for cancellation. (There’s an exception if you have completed two years of active service in the U.S. armed forces, in which case those two years alone are enough to meet the time requirements for non-LPR cancellation.)
The date of your arrival starts the ten-year “clock.” The clock stops when you receive a Notice to Appear in immigration court, commit certain types of crimes, or have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days. There are also other ways that the clock can be stopped, such as leaving the U.S. under a “voluntary departure order.”
Testimony and written declarations from you and other people who know you can be enough to show ten years of residence. However, as is always the case, if you have documentary evidence of your U.S. residence, such as rent receipts, credit card statements, pay stubs, and so on, you should probably provide it to the court.
Meeting The “Qualifying Relative” Requirement
To qualify for cancellation, the undocumented immigrant must have a relative who is his or her “spouse, parent, or child” and “is a citizen of the U.S. or an alien lawfully admitted for permanent residence.” This comes from the Immigration and Nationality Act (I.N.A.) Section 240A(b)(1)(D).
Meeting The “Exceptional And Extremely Unusual Hardship” Requirement
Every removal (deportation) causes hardship. To qualify for non-LPR cancellation, however, the hardship to the relative must be “exceptional and extremely unusual.” The distinction between “hardship” and “exceptional and extremely unusual” is critical.
To be approved for non-LPR cancellation, it is not enough to show that a U.S. citizen or LPR relative would suffer financially, emotionally, and physically. Instead, there must be proof that the qualifying relative would suffer to a degree that goes above and beyond the type of suffering that would normally be expected when a close relative is deported.
For example, evidence of a minor child’s severe illness and the lack of available medical care in the undocumented immigrant’s home country might be enough. Evidence of a long history of living in the U.S., children who do not speak the language of the country to which you would be removed, and no support structure to rely on in your home country, might also be enough.
Meeting The “Good Moral Character” Requirement
An immigration judge will deny an application for non-LPR cancellation if the applicant does not have “good moral character”. The judge will decide that the applicant does not have good moral character if the law specifically says that the applicant cannot have good moral character (because, for example, he or she is a “habitual drunkard”) or if the judge decides that there are other “discretionary factors” indicating that the applicant isn’t a “good person.”
There are many reasons in the law for a judge to find that an applicant for non-LPR cancellation does not have good moral character.
