Cancellation of Removal for Non-Permanent Residents

    Section 240A(b)(1) of the INA provides that the DHS may cancel the removal of an inadmissible or deportable alien who:

            1.      has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application;

            2.      has been a person of good moral character during such period;

            3.       has not been convicted of certain offenses under the INA; and

            4.      establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the    United States States or a lawfully permanent resident ("green card" holder). 

    More often than not, a grant of cancellation of removal turns on whether or not the applicant met the “exceptional and extremely unusual hardship” to his or her USC or LPR spouse, parent, or child. This is the most challenging hurdle for applicants to prove. The Board of Immigration Appeals has issued three cases setting out the parameters of the requisite hardship: Matter of Monreal, Matter of Andazola, and Matter of Recinas. The applicants in each case were the parents of U.S. born children. Relief was denied in the first two but granted in the third. The cases underscore the fact specific nature of cancellation adjudications. The Board instructed that while “any hardship case ultimately succeeds or fails on its own merits and on the particular facts presented,” the standards set forth in Monreal and Andazola, “are the starting points for any analysis of exceptional and extremely unusual hardship.”  In Matter of Monreal, the 34-year-old Mexican national was the father of three U.S. citizen children. The Board stated that the alien need not show that the hardship would be “unconscionable” and relevant considerations included the age, health, and circumstances of the qualifying family members, including showing of how a lower standard of living or adverse country conditions in the country of return might affect those relatives. The standard was not met where the Board found that applicant was in good health, the children were in good health and that the eldest, who was 12 years old, could speak, read, and write Spanish, and that the applicant would be able to work and support his U.S. citizen children in Mexico. Also upon his return to Mexico, the applicant would be reunited with family members, including his wife (the mother of their three children), who had already returned to Mexico with one of the children.

    The Board has reiterated that the hardship must be “substantially” beyond the ordinary hardship that would be expected when a close family leaves this country. Factors that will be considered are the age, health, and circumstances of the qualifying relatives, including how a lower standard of living or adverse living conditions in the country of return might affect the relatives. A lower standard of living or adverse country condition in the home country in and of itself does not suffice. However, an applicant who has elderly parents in this country who are solely dependent upon him for support might well have a strong case. Another strong candidate might have a qualifying child with very serious health issues, or compelling special needs in school.

The Immigration and Nationality Act (INA) under Section 240A allows the Department of Homeland Security (DHS) to cancel the removal of non-citizens who meet certain statutory requirements. There are three types of cancellations of removal: cancellation of removal for permanent residents; cancellation of removal for non-permanent residents; cancellation of removal for battered spouses; and cancellation of removal for Guatemalans, Salvadorans, and former Soviet Bloc nationals (NACARA Cancellation).

Cancellation of Removal for Certain Permanent Residents Under INA 240(A)(a)

Section 240(A)(a) of the INA allows the cancellation of removal of certain permanent residents who have been placed in removal proceedings if they fulfill the following requirements:

a.       The alien must be a lawful permanent resident. The key word here is “lawful”. Persons who acquired their permanent resident status through fraud or misrepresentation are considered not to have been lawfully admitted for permanent resident status and thus are ineligible for cancellation of removal.

b.      The alien must have resided continuously in the United States for at least seven years after having been admitted in any status. The seven-year continuous residence can be accumulated after admission in any lawful status, immigrant or nonimmigrant. Thus, aliens who entered without inspection cannot use the time in which they were in unlawful status in the United States to qualify for cancellation of removal. On the other hand, persons who entered as non-immigrants and later adjusted their status to permanent residence may count the period of time they were in nonimmigrant status in the United States (whether or not they overstayed their status or otherwise violated their status) to meet the seven-year continuous residence requirement.

c.       The alien must not have been convicted of an aggravated felony as defined under INA Section 101(a)(43); and

d.      The alien must not have been granted cancellation of removal previously.

Cancellation of removal under this Section waives all removable criminal offenses except aggravated felony convictions and security-related conduct.

It is important to note that in addition to satisfying the foregoing statutory requirements, the applicant must establish that he or she warrants cancellation of removal as a matter of discretion. The factors to be considered for a favorable exercise of discretion are family ties in the United States, residence of long duration in this country, evidence of hardship, if any, to the applicant and the applicant’s family if removal occurs; service in the U.S. Armed Forces; a long history of employment; the existence of business and property; evidence of family and service to the community; evidence of rehabilitation if a criminal record exists; and other evidence attesting to the applicant’s good moral character.

Unfavorable factors include: the nature and the underlying circumstances of the grounds for removal; the presence of additional immigration violations; the existence of a criminal record and its recency and seriousness. The leading case for this type of cancellation is Matter of C-V-T- , decided in 1998.

On January 3, 2012, the Board of Immigration Appeals, in Matter of R-A-M-, held that a conviction for possession of child pornography is an aggravated felony and a particularly serious crime, barring withholding of removal.

The case involved a citizen of Honduras, who applied for asylum and withholding of removal based on his alleged mistreatment on account of his sexual orientation. While his asylum application was pending with the immigration court, the respondent was convicted of possession of child pornography in violation of the California Penal Code § 311.11(a), which makes it unlawful to knowingly possess or control any image or film that depicts a person under the age of 18 years engaging in or simulating sexual conduct. The respondent was convicted of possessing videos and images depicting child pornography on two computers, and he was sentenced to 280 days of imprisonment and three years' probation. At the conclusion of a removal hearing, the immigration judge denied asylum, finding that the respondent's offense was an aggravated felony, but he granted withholding of removal, holding that the respondent had not been convicted of a particularly serious crime. The Department of Homeland Security (DHS) appealed the Immigration Judge’s decision, arguing that the respondent's conviction was for a particularly serious crime and the respondent should be barred from the relief of withholding of removal. The Board of Immigration Appeals agreed with DHS and found the respondent’s conviction was for a particularly serious crime and remanded the case to the Immigration Judge. 

On November 20, 2011, the USCIS issued an updated policy memorandum on terrorist-related inadmissibility grounds. The new memo, entitled “Revised Guidance on the Adjudication of Cases Involving Terrorism-Related Inadmissibility Grounds (TRIG) and Further Amendment to the Hold Policy for Such Cases,” changes the USCIS’ hitherto policy on the adjudication of cases relating to terrorist-related inadmissibility grounds under INA § 212(a)(3)(B). Prior to this memo, USCIS adjudicators were required to place on hold (pending further instructions) cases involving applicants who provided material support to a terrorist organization or member of a terrorist organization. The new memo changes that and instructs adjudicators to deny cases that were put on hold for terrorism-related inadmissibility grounds with the exception of those who provided medical care to terrorist organizations or members thereof and the children and spouses of those who provided material support. 

The Immigration and Nationality Act (INA),  in one of its rarest attempts at clarity, defines the term “conviction” as follows (INA §101(a)(48):

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo

contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty

to be imposed.

There are two instances in which a criminal disposition constitutes a conviction for immigration purposes. One is the obvious case in which a formal judgment of guilt is rendered by a court. The second instance applies to what, in criminal law parlance, is called “deferred adjudication,”  whereby the final or formal judgment is withheld, postponed, or "deferred" until the end of a probation period. If adjudication of guilt is withheld, the law requires two elements to be fulfilled to constitute conviction: (1) a judge or jury must find the foreign national guilty or the foreign national pleads guilty, or enters a no-contest (nolo contender) plea, or admits sufficient facts to warrant a finding of guilt; and (2) the judge ordered some form of punishment, penalty or restraint on the person’s liberty.

The legislative history of the definition of conviction shows that Congress intentionally broadened the scope of what constitutes conviction in order to include “deferred adjudications.”

As a result, the following instances have been held to be convictions for immigration purposes:

1. Probation sentences
2. Deferred sentences
3. Expunged convictions
4. Pretrial interventions such as conditional discharge if accompanied by a guilty plea or plea of no-contest

1. A sentence of imprisonment
2. Fine
3. Imposition of costs and surcharges in sentencing
4. Probation is also punishment for immigration purposes

The full text of USCIS announcement and its accompanying Q & A can be found here.

The USCIS issued a memorandum instructing district offices that approved self-petition visas based on Violence Against Women Act (VAWA) can only be revoked by the Vermont Service Center, the only Service Center entrusted with the adjudication of such petitions. This memorandum is designed to address concerns that district offices are revoking approved VAWA petitions without consultation with the Vermont Service Center. The Vermont Service Center VAWA Unit is equipped with trained personnel on VAWA issues, including expertise in identifying fraudulent filings. The memorandum directs that once a VAWA petition is approved, district offices can request a revocation in writing based only on evidence discover after the approval. The request must be made to the Vermont Service Center and such request must be signed by a supervisor. The full text of the memorandum can be found here.

1. What is Immigration Fraud?

In immigration context, fraud is the willful misrepresentation of a material fact in order to obtain a visa, other documentation or entry into the United States or other benefit provided in the Immigration and Nationality Act (INA).  (See INA §212(a)(6)(C).) Thus, fraud requires two essential elements: willfulness and materiality. A misrepresentation is willful when it is deliberate and voluntary. Willful misrepresentation includes providing false information to a government official in order to obtain an immigration benefit; entering or attempting to enter the U.S. with photo-switched passport, deliberately withholding a material fact (e.g. prior name, marital status, a criminal conviction, prior Alien Number---provided that the disclosure of such information would have altered the outcome). A misrepresentation is material when it is capable of affecting the official decision or the misrepresentation tends to shut off a line of inquiry relevant to the visa, document or other benefit sought. (See Kungys v. U.S., 485 U.S. 759 (1988); Matter of Hui 15 I&N Dec. 228 (BIA 1975,  finding a misrepresentation by a Chinese national to be material where it involved his identity, birthplace, nationality and birth date.)

2. Consequences of Immigration Fraud

Fraud results in inadmissibility, which means the perpetrator of fraud will be denied admission to the United States; if he is in the United States, he will be subject to removal.

3. Is There a Relief from a Fraud Charge?

Yes, there is a relief from a finding of fraud; however, there are stringent requirements for a relief. A person who has been found to have committed fraud can file for a waiver under INA §§ 212(i) and 237(a)(1)(H).