Tuesday, August 27, 2013

Immigration Law Basics: What is "Cancellation of Removal"?

August 27, 2013: Whenever I receive a phone call and topic revolves around "my husband is being deported, help!" or "I received an NTA (Notice to Appear) from the Department of Homeland Security, what can I do", one of my first thoughts is whether the person in question is eligible for "Cancellation of Removal". So what exactly is Cancellation of Removal? Cancellation of Removal is an immigration "benefit" if you will for those persons who are faced with removal (commonly known as deportation) from the United States before the Executive Office for Immigration Review (or immigration court).

There are two forms of Cancellation of Removal: 1) Cancellation of Removal for Certain Permanent Residents (green card holders) pursuant to Section 240A(a) of the Immigration and Nationality Act (or INA); and 2) Cancellation of Removal for Certain Non-Permanent Residents (all others) pursuant to Section 240A(b) of the INA. In many cases of removal, these may be the most viable way to remain in the United States and avoid being deported to one's country of origin. One of the best benefits of Cancellation of Removal, other than not being deported, is if you win your case and you are not a permanent resident (e.g. you win under INA 240A(b) for Non-Permanent Residents), you will also receive legal status in the United States in the form of a "Green Card".

Cancellation of Removal for Certain Permanent Residents requires that the Respondent (individual in immigration court proceedings) meet three general criteria, which are:

  1. The person must have been a lawful permanent resident ("Green Card" holder) for at least 5 years;
  2. Prior to being served with the Notice to Appear or committing the criminal violation that led to removal proceedings, the applicant has resided in the United States continuously for seven years after being lawfully admitted in any status; and
  3. The individual has not committed an "Aggravated Felony" (which is beyond the scope of this article and will be addressed in a future post).
These are the minimum requirements in order to be eligible for Cancellation of Removal (for the Green Card holders). The immigration judge will then look to several other factors in order to determine whether the Respondent deserves a favorable exercise of discretion and is awarded the Cancellation of Removal Benefit. Those factors are, but not limited to: family ties in the United States; residence of long duration in this country; evidence of hardship to the Respondent and family if removal occurs; a solid history of employment; the existence of business and property ties; evidence of value and service to the community; proof of genuine rehabilitation; and other evidence attesting to a respondent’s good character (See e.g. Matter of C-V-T). If the applicant is awarded Cancellation of Removal, then the removal proceedings are terminated and he is allowed to remain in the United States. If not, then the individual is deported to their country of origin.

Cancellation of Removal for Certain Non-Permanent Residents is a much higher threshold to overcome and is less frequently awarded by immigration judges (perhaps owing to the difference between Green Card holders who are on a path to US Citizenship versus other non-immigrants, legal or otherwise). In order to demonstrate eligibility for this form of Cancellation of Removal (Non-Permanent Residents), the Respondent must, at a minimum, demonstrate the following eligibility criteria:
  1. Must have resided in the United States for at least 10 years;
  2. Has been a person of "Good Moral Character" for this period;
  3. Has not committed certain criminal offenses covered under INA 212(a)(2) and INA 237(a)(2) relating to crimes involving moral turpitude, firearms offenses, controlled substance violations, aggravated felonies, among other things, and INA 237(a)(3) relating to falsifying documents; and
  4. Removal would result in "exceptional and extremely unusual" hardship to a qualifying United States citizen or Lawful Permanent Resident spouse, child, or parent.
As one can see, even if you avoid the criminal barriers to Cancellation of Removal (which are far-encompassing and broad), you still need to meet residency requirements and show "exceptional and extremely unusual" hardship to qualifying immediate family members. And no, "they will miss me" or "won't be able to pay rent" won't work here. Think along the lines of an elderly family member (US Citizen or LPR) who solely depend on you for their support or a child with mental and//or physical limitations solely depending on your assistance. There are numerous other factors that the Board of Immigration Appeals (BIA) has set forth in rulings, but one thing remains: the bar is set incredibly high to show "exceptional and extremely unusual hardship".

As one can see, in addition to meeting the eligibility standards, ample amounts of supporting documentation and evidence are needed to meet the discretionary factors listed above. By consulting with and retaining an experienced Orange County immigration lawyer, you stand the best chances at winning relief for you or your loved ones case. For more information on this, or other immigration matters, call 949-440-3240 or visit Orange County Immigration Attorney Kapesh Patel at www.kpimmigrationlaw.com.

Tuesday, August 13, 2013

Mexican Asylum Seekers Accused of Abusing "The System"

August 13, 2013 - Senator Jeff Sessions (R-AL) has in recent days accused Mexican immigrants of abusing US immigration laws by stating they have a credible fear of persecution from drug cartels if they are forcibly returned to Mexico. A well-known critic of comprehensive immigration reform, Sen. Sessions has argued that the House of Representatives should not advance comprehensive immigration reform until this "loophole" is addressed. He said the recent surge in asylum cases originating from Mexico has "exposed another grave flaw" in federal immigration laws. Sen. Sessions added "They must use every power they have to end this absurdity. No immigration bill should advance until these abuses are ended."

Generally, when an immigrant enters the US unlawfully and is apprehended, a Customs and Border Patrol Officer will ask the person if they have a fear of persecution if returned to their home country. If so, they will have an interview with a USCIS (United States Customs and Immigration Services) officer who will make an initial "credible fear determination" to see if there is a "significant possibility" that the individual will be eligible for asylum. If so, then the immigrant will have a hearing before an immigration judge who will make the final decision on whether to grant asylum (or other associated forms of relief such as withholding of removal or the Convention against Torture). However, before they see an immigration judge, the immigrant will either be placed in a detention facility or released. Those released promise to appear for their hearing, but that is not always the case, with many just disappearing, forcing an immigration judge to order the immigrant "removed in absentia" (in effect, an order which has no real force since the immigrant is nowhere to be found). Very few Mexican nationals are found eligible for asylum, unlike say those individuals from Syria or China.

Fox News on August 13 also ran an "exclusive article" on the surge of Mexican asylum seekers. In its report, Fox News reported that some Mexican asylum seekers are being placed in $99/night hotels in the San Diego area due to overcrowding - a fact that is sure to fire up those opposed to immigration reform. The report also mentioned that illegal immigrants have recently learned that by using a few keywords - "credible fear of persecution from drug cartels" - they can extend their stay in the United States by applying for asylum and possibly being released into the community before their court dates.

Asylum seekers, who truly have valid claims, are wise to seek the advice and counsel from immigration attorneys. This office has handled numerous asylum applications and know what the immigration judges are looking for. If you have a credible (truthful) fear of persecution if returned to your home country, speak to an Orange County Immigration Lawyer at 949-440-3240 who is best positioned to determine the merits of your case and put you in the best position to be granted asylum.

Monday, August 5, 2013

Good News and Bad News for Immigration Reform

August 5, 2013 - Good news and bad news impacted immigration law last week as the nation still awaited action from the House of Representatives over comprehensive immigration reform. Let's start with the good news. Secretary of State John Kerry, while on a visit to London, England, announced that the US visa system will now treat same-sex couples the same as heterosexual couples. This would be a major development in US immigration law, which for as long as the laws have been on the books, has denied immigration benefits to gays and lesbians. Secretary Kerry said that the State Department was "tearing down an unjust and unfair barrier that for too long stood in the way of same-sex families being able to travel as a family to the United States." He went on to add that "[i]f you are the spouse of a US Citizen, your visa application will be treated equally." Just last month Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security (which is also involved in the immigration process) would also treat same-sex couples as heterosexual ones. Kerry's announcement follows the landmark Supreme Court decision which overturned the federal Defense of Marriage Act (DOMA), effectively recognizing same-sex couples for the first time on a federal level.

Same-sex visas have been a lightning rod in the comprehensive immigration reform debate, which is the "bad news" referenced above. For seemingly months I've been reporting that comprehensive immigration reform would face a challenge in the Republican-led House of Representatives and it most certainly has. On Sunday's edition of CBS' "Face the Nation", Congressman Paul Ryan (R-WI) stated that inaction from the House of Representatives didn't necessarily mean the House did not support the Senate's immigration reform bill, just that the House would take the comprehensive immigration reform issue step-by-step. And as has been noted on this blog before, that approach is certain to encounter fierce opposition from House and Senate Democrats who want a comprehensive approach to immigration reform, as well as a path of citizenship.

With no end in sight to stalled developments in immigration reform, as well as 5 weeks of Congress' summer recess, we won't have an answer to the nation's immigration reform efforts until well into September now. And as many an undocumented immigrant knows, the Department of Homeland Security, through it's Immigration and Customs Enforcement division, is still deporting undocumented immigrants regardless of their criminal background. If you or a loved one are in removal proceedings, an Orange County Immigration Lawyer can be the only protection you have from being forcibly removed from your family and employment. Call 949-440-3240 or visit www.kpimmigrationlaw.com if you would like to speak to a licensed immigration attorney.