Introduction
The Department of Homeland Security defines deportation as “the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws.”
In other terms, deportation is when an immigrant inside the US is ordered to be removed by an Immigration Judge for violating the law. The words “deportation” and “removal” have the same meaning within this context and are used interchangeably.
Deportation may be ordered on any non-US citizen, meaning even if you are a green card holder, you are not exempt from being removed from the country by the government. Until an immigrant has been through the entire process of naturalization and has officially become a US citizen is he then barred from being removed to his originating country.
An official order of deportation has a greater legal consequence than being sent back to your home country. Depending on the reasoning behind the order of removal, not only is an immigrant sent out from US territory, but the immigrant must also remain outside of the US for a certain period of time before he is allowed to return. This period could range from five years to ten years, or even amount to an indefinite exile from the country.
Therefore, if you, a friend, or a loved one has been issued an order of removal, it is critical to obtain an experienced immigration lawyer right away. Along with the help of an immigration lawyer, it is important for the immigrant to stay informed and have knowledge of all possible avenues for relief.
What Causes Deportation Proceedings?
There are a variety of reasons why an immigrant may be issued an order of deportation and placed into deportation proceedings in immigration court. In general, the law says immigrants are deportable for violating immigration laws; however, violation of US laws may also put an immigrant at risk.
The Immigration Nationality Act §237 lays out all classes of deportable immigrants. In summary, these classes include:
- Overstay of visa/violation of status
- Smuggling
- Marriage Fraud
- Criminal Offenses
- Drug Offenses
- Firearm Offenses
- Documentation Fraud
- Public Charge
- Security and Related Grounds
While most of these grounds for deportation seem like clear violations of the law, even non-violent acts or common mistakes may easily put an immigrant at risk of removal. For instance, registering and/or voting in US elections is a strict liability offense that will place an immigrant in expedited deportation proceedings.
In recent years, it has become a common phenomenon where voter registration tables are set-up in public places, and sometimes, representatives register people of all backgrounds, regardless of their citizenship status. Many immigrants unfamiliar with the law do not realize that completing voter registration forms will lead to negative consequences.
Another commonplace example is failure to notify the government of an address change. While this lack of action seems mundane, and in fact, many people make the mistake of forgetting to report their address change when moving houses or location, not reporting to USCIS of a change of address will make an immigrant subject to deportation.
Reporting an address change can be done through an online submission, a mail-in form, or a call to USCIS. Note: Changing your address with the US Postal Service will not change your address with USCIS.
What is Cancellation of Removal? Am I Eligible?
Under INA §240A, cancellation of removal is a discretionary form of relief, otherwise known as a waiver of deportability. If an immigrant finds himself/herself in removal proceedings, he/she may file for cancellation of removal if certain requirements are met.
The immigrant may file an application for relief before an Immigration Judge, who then determines whether that person is eligible for-
- Waiving certain charges of immigration violations that initiated the deportation order; and
- Canceling the removal order and, if a non-LPR, adjusting to the status of an immigrant lawfully admitted for permanent residence.
Cancellation of removal is a one-time-only form of relief, and an applicant must provide substantial evidence to prove that he or she meets the following requirements in order to be granted relief. Eligibility differs for green card holders and non-green cardholders.
Immigrants of LPR Status must show
- Green Card was obtained lawfully;
- Continuous residence in the US for 7 years after admission AND lawful permanent resident status for at least 5 years before the “stop-time” rule is initiated (see below);
- No conviction of an aggravated felony;
- No offense triggering criminal inadmissibility/crime of moral turpitude; and
- Have not received relief in the past.
Immigrants of non-LPR Status must show
- Continuous and physical presence in the US for at least 10 years (date of admission to date issued Notice to Appear);
- Good moral character (No convictions of criminal inadmissibility or deportability grounds); and
- Exceptional and extremely unusual hardship to LPR relative (see below).
Continuous Presence
Continuous presence in the US is one of the primary factors when determining whether the applicant may be granted cancellation of removal. For non-green card holders, they must have accrued continuous and physical presence in the country for at least 10 years to be eligible for relief.
Think of this factor as time accrued on a stopwatch. Once an immigrant enters the US, his “timer” begins. That time will continue to accrue, and even brief trips abroad i.e. vacation or business trips will not disrupt the timer for continuous presence (so long as a single departure does not exceed 90 days and there was less than 180 days in total departure over the course of 10 years).
According to INA §240(A)(d), an immigrant’s continuous residence or continuous physical presence ends when: (1) the immigrant has committed an offense that renders him inadmissible to or removable from the US; or (2) in the case of applying for cancellation of removal, when the immigrant is issued a Notice to Appear, whichever is earliest. This is known as the “stop-time” rule.
Recent case law has emphasized specificity in Notices to Appear in order for the timer to be stopped. In Pereira v. Sessions (2018), the US Supreme Court ruled that NTAs must specify the date, time, and location that the hearing will take place.
Otherwise, if an immigrant’s NTA states the date of his hearing is “to be determined” or fails to specify on the matter, the stop-time rule has not been triggered until the immigrant is scheduled a specific time and place for his hearing.
For immigrants enlisted in the armed forces and whose induction was in the US, and have served in the armed forces for a minimum of 24 months and was separated under honorable conditions, this continuous presence requirement does not apply.
Aggravated Felonies & Crimes Involving Moral Turpitude
Aggravated felonies are particularly serious crimes, and convictions of aggravated felonies may bring about the most severe punishments in immigration law. In addition to deportability, the conviction of an aggravated felony may result in an immigrant’s: (1) ineligibility for most waivers of removal; (2) permanent inadmissibility to the US after removal; and (3) enhanced prison sentence for illegal reentry. Conviction of an aggravated felony will bar immigrants of any status from the relief of cancellation of removal.
Remember, a crime may not be considered an aggravated felony under state or federal criminal law, but it may rise to the level of an aggravated felony for immigration purposes. INA §101(a)(43)(a)-(u) states an expansive list of crimes that fall under aggravated felonies.
Aggravated Felonies include, but are not limited to, the following
- Murder
- Rape
- Drug trafficking
- Money laundering
- Crimes of violence + at least 1 year prison sentence
- Theft/Burglary + at least 1 year prison sentence
- Child pornography
- Prostitution
- Fraud/Deceit
- Alien smuggling
Crimes Involving Moral Turpitude (“CIMT”) often overlap with aggravated felonies and may rise to the level of barring one from various forms of relief. CIMT is a term of arm used within immigration law without a precise definition. CIMT often refers to crimes that are morally reprehensible or otherwise characterized as crimes involving conduct that shocks the conscience.
CIMTs include, but are not limited to, offenses such as rape, murder, robbery, and fraud. When determining whether an offense falls within the meaning of CIMT, a general rule of thumb is identifying whether there was intent or evil motive behind the act or conduct.
For purposes of cancellation of removal, for non-green card holders, conviction of 1 CIMT with a potential sentence of 1 year or longer—even if the offense was not within 5 years of an admission to the US—he is barred from applying for cancellation of removal.
However, for green card holders, only if he has committed and been convicted of a CIMT prior to reaching his 7-year continuous residence requirement, then he is barred from applying for cancellation of removal.
Public Charge
For purposes of cancellation of removal, it is unlikely that public charge status will weigh heavily into your application for removal relief. Public charge refers to someone who is or is likely to become primarily dependent on public benefits or government subsistence.
Cancellation of removal is a form of discretionary relief where public charge inadmissibility grounds do not apply, therefore it is highly unlikely that an applicant who receives public benefits will have an adverse factor to his cancellation application.
Discuss with your immigration attorney if you have any concerns on whether your application might be affected based on public charge circumstances.
Good Moral Character
INA §101(f) defines good moral character (“GMC”) as “character which measures up to the standards of average citizens of the community in which the applicant resides.” Applicants for cancellation of removal must prove he/she has established GMC for 10 years counting backwards from the date of the final decision.
***Note: this 10-year period differs from that of continuous presence as the time accrued for continuous presence STOPS once the immigrant is served the Notice to Appear..
Although determining a person’s GMC is a matter of discretion for the Immigration Judge, INA §101(f) lays out statutory bars to establishing GMC, which include:
- Habitually drunkard;
- One whose income is derived principally from illegal gambling activities;
- Conviction of 2+ gambling offenses;
- False testimony/Fraud;
- Conviction of an offense resulting in an aggregate prison sentence of 180+ days
- Conviction of an aggravated felony;
- One who has participated in genocide, persecution, or acts of torture.
Along with considering case law, the seriousness of the offense, and the negative factors of GMC, an Immigration Judge may also use a balancing test and weigh any positive factors of GMC, such as reformation of character, rehabilitation, voluntary community service, and absence of significant undesirable factors.
Exceptional and Extremely Unusual Hardship
This factor is arguably the most difficult requirement to prove for non-LPR cancellation of removal. Cases involving exceptional and extremely unusual hardship are tough to win and are analyzed by a stringent standard. We dissect this factor under a 2-prong approach: (1) who does the hardship apply to; and (2) what qualifies as exceptional and extremely unusual hardship?
Who does the hardship apply to?
To prove this requirement, it’s important to understand that the hardship of deportation must not be to you, but to a qualifying relative. A qualifying relative can be one of the following:
- A US citizen or LPR parent or step-parent
- A US citizen or LPR spouse from a bona fide marriage
- A US citizen or LPR child who is under 21 years of age and unmarried
If you are applying for non-LPR cancellation of removal and you do not have a qualifying relative, then you are not eligible for this form of relief. However, if you do have a hardship to a non-qualifying relative, discuss with your immigration lawyer on how you can frame that hardship directly or indirectly to a qualifying relative. Creating a strategy on how you frame the hardship may be critical to how you win your case.
What is exceptional and extremely unusual hardship?
When determining hardship for purposes of non-LPR cancellation of removal, in addition to applying case law, the court will analyze several factors of your case. The BIA has held that the standard of showing hardship must be substantially beyond the ordinary standard, meaning mere economic hardship will not constitute a sufficient showing.
Common factors considered include the qualifying relative’s: age, health, length of US residence, lack of financial support resulting from removal, and circumstances in the home country, including language, the standard of living, and availability of education and medication.
For example, for hardship cases, immigration courts often refer to Matter of Recinas (BIA 2002). In Recinas, the BIA granted cancellation of removal to Recinas who met the burden of showing exceptional and extremely unusual hardship to her six children based on the heavy burden to provide sole financial/familial support for her children if deported, the lack of any family in her native country, her children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.
Other Forms of Relief
Cancellation of removal cases involves high standards and is very hard to win. If you are doubtful of your case, speak with your lawyer about other options you may have. Consider if you may qualify for the following:
- Cancellation of Removal for Victims Battered or Subject to Extreme Cruelty by LPR Spouse/Parent: Must meet these requirements for eligibility:
- You have been battered/subject to extreme cruelty in the US by your US citizen or LPR spouse or parent, OR you are the parent of a child of a US citizen or LPR and the child has been battered or subjected to extreme cruelty in the US by a such citizen or LPR parent;
- Prior to service of the Notice to Appear, you have maintained a continuous physical presence in the US for 3+ years and a person of GMC during such period;
- You are not inadmissible/deportable, no conviction of an aggravated felony; and
- Removal would result in extreme hardship to you or your child who is the child of the US citizen or LPR, or you are a child whose removal would result in extreme hardship to you or your parent.
- Asylum/Convention Against Torture: If you have been persecuted or fear future persecution in your country removal based on your race, religion, nationality, political opinion, membership in a particular social group, or fear persecution by the government, speak with your attorney about possible avenues of relief against torture.
- Voluntary Departure: If you are in removal proceedings and/or in the event that your application for cancellation of removal has been denied, you may request a voluntary departure from the Immigration Judge. By doing so, voluntary departure allows you to leave the US within a certain period of time without the enforcement of immigration officials. In addition, the voluntary departure does not result in a period of inadmissibility to the US based on a deportation order. Keep in mind that conviction of certain crimes may bar you from being granted voluntary departure.
