New York Lawyer's Legal Updates

Continuous Presence For Cancellation Of Removal For Non-permanent Residents And EWI

Author: New York Deportation Attorney Alena Shautsova

You probably have heard that if a person entered the country illegally, “nothing can help him” to obtain legal status in the United States even if she/he marries a US citizen.

Well, it is not quite true. It is very difficult for such a person to obtain a status, to wit: most of the time they cannot adjust their status in the United States without leaving the country, even if they marry a US citizen; but there are some very limited options.

One of those options, or one of the forms of relief from removal or deportation available for those who entered the country without inspection (EWI) is a cancellation of removal for certain non-permanent residents under the INA 240. Generally, in addition to other conditions, a person should be residing in the US for ten years and more to qualify for this relief. The law requires that that the presence in the US must be continuous. One might think that it means that the applicant should not be travelling abroad at all during the 10 years. However, the law defines continuous presence more broadly than that: a person should be in the US for 10 years prior to service on him/her Notice to Appear, and the person should not have 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.

The recent decision from the Tenth Circuit one more time emphasized the importance of continuous residency requirement for cancellation of removal for non-permanent residents. In Barrera -Quintero v. Holder, 11-9552 (November 15, 2012) the respondent argued that he stayed in the country for 10 years, but the government claimed that because he traveled back to Mexico for only SIX DAYS after he learned that there was an Immigration case started against him, his continuous presence requirement for cancellation of removal for non-permanent residents was broken. You may read the text of the decision here.

This case demonstrates that it is very important to prepare your application with an experienced attorney and that the Immigration law is more complicated than it may seem.

If you have immigration concerns, consult a skilled New York Immigration lawyer at 917-885-2261 and find out about your options.

22 November 2012
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