New York Lawyer's Legal Updates

Simplified Eligibility Requirements To Qualify

Author: Deportation Lawyer Alena Shautsova

3 Simplified Eligibility requirements to Qualify For Cancellation of Removal for Non -Permanent Residents

A relief from removal in the form of Cancellation of Removal has been around since 1996, but many eligible individuals still are unaware that they qualify for Cancellation of Removal. One caveat for this very useful tool, is that an individual has to be in Immigration court to request it. It means that pa person has to put himself/herself in removal proceedings risking to be deported forever, to apply for this relief.

Not surprisingly, a person acting without an attorney, after reading this and pre-qualifying himself for Cancellation of Removal, is often reluctant to move forward with the application for cancellation of removal due to fear of deportation. However, in compelling cases, with the help of an experience advocate, the chances of the application to be approved increase immensely.

While it sounds nerve racking (as it always the case when you have to place your life in the hands of a government official or court) if one meets all 3 requirements discussed below, he/she should have a strong case for Cancellation of Removal.

1. The Individual must have a continuous physical presence in the US for at least 10 years prior to the filing of Cancellation of Removal.

a. This does not mean 10 years in the US in agregate. It means that if you file your case on January 1st 2016 you need to be continuously present in the US from January 1st 2006.

b. If notice to appear for removal proceedings has been served on an individual prior to the 10 year mark of continuous physical presence, or the individual committed a crime that disqualifies him/her from the relief, the individual will be subject to the Stop-Time Rule and the 10 year period will not accumulated.

The person also has to show that he/she had not left the country for longer than 90 days at a time, or 180 days all together. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.

Proving Your Physical Presence - You will need to provide what is known as substantial evidence to convince the Immigration Judge of your continued physical presence.

The Best - Tax Returns for each year; birth certificates for children; school and employment records

Almost The Best - Speak to an attorney to determine if anything you have in your possession can be utilized as proof. The substantial evidence is discretionary as such, pictures with dates and places that can be identified are considered substantial evidence. Travel Tickets are not always substantial evidence . In one such case that came to my office The government argued previously with a different attorney that the Plane Tickets and filing of documents was proof that the individual was in the country over 10 years ago. However they were not convinced that the individual had stayed in the US since none of the evidence provided showed "Physical presence." After digging through old photo albums we found a picture with a US Citizen in it, were able to match school records to show that the individual was in school in the USA during the time the picture was taken, and established physical presence!

2. A Person of Good
Moral Character

 
 

Currently, different jurisdictions calculate the point for GMC at a different times: some to the point when the application is adjucdicated and some to the point when an indivudal submitted the application.

Stop Time Rule must be evaluated in each case. As per recent BIA case: Matter of ORDAZ, 26 I&N Dec. 637 (BIA 2015) A notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have "stop-time" effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).

This means, that if convicted of a crime prior to the relevant time frame, it should not affect the eligibility, unless the crime is such that it compliantly disqualifies the individual.

For an in-depth look at Good Moral Character click here >>>

3. Finally, a person, non-permanent resident must establish 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 or an alien lawfully admitted for permanent residence. Please see Proving Hardship article.

01 August 2015
Watch Our YouTube Channel Free Legal Videos