A Lawful Permanent Resident (LPR) is an individual who acquires legal status in the United States. However, the word “permanent” is a misnomer because this status is not “permanent” for all intents and purposes, it can be lost and the individual may potentially be forever removed to their country of birth. On September 30, 1996, President Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). With the passage of IIRIRA, aliens now had to fight to keep their resident status in the United States upon the commission of certain crimes. IIRIRA expanded the list of crimes and aggravated felonies. Now, something as simple possession of marijuana for personal use can become an aggravated felony for purposes of immigration law if the word “sale” is included in the plea agreement. An aggravated felony bars the resident form any relief.
Cancellation of removal for permanent and non-permanent residents under INA § 240A is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced. Removal proceedings can commence after the sentence of a crime is imposed on the individual or it can be commence many years after. Essentially, you could have committed a deportable offence in 1998, plead guilty to it and in 2010 you are crossing the border coming back from a trip abroad and you are placed in removal proceedings because now you are “inadmissible” and as such, the government wants to remove you from the United States.
Lawful permanent residents may be placed in immigration removal proceedings due to certain criminal convictions that make them become inadmissible or deportable from the U.S. LPRs convicted of aggravated felonies are entirely barred from cancellation relief. In order to qualify for relief, the LPR has to prove the following: (1) Has been an LPR for not less than five years; and (2) Has resided in the United States for not less than seven years in any status; and (3) Has not been convicted of an aggravated felony.
An individual placed in removal proceedings who does not have any legal status in the United States may qualify for cancellation of removal if the following conditions are met: (1) Has continuously resided in the United States for at least ten years; and (2) Has been a person of good moral character throughout this time; and(3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in the Immigration and Naturalization Act; and (4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.
A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning the alien status to that of a lawful permanent resident. Cancellation of Removal can only be granted once in a lifetime for the alien. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of birth through a removal or deportation order. If an alien accepts an order of removal or deportation, the U.S. will carry out the order and remove the alien from the U.S. Alternatively, an alien may seek review before the Board of Immigration Appeals, and thereafter in a Federal Court of Appeals for the District in which they reside. However, for most immigrants, the process can become very expensive and although these proceedings have the elements of a criminal procedure case, deprivation of liberty, deprivation of property and even the violation of "due process of law" under the 14th Amendment to the Constitution, immigrants in immigration proceedings do not have the right to a lawyer at the government’s expense. If your loved one faces removal proceedings, The Law Offices of Maricela Amezola can help you with this process. Please call us at (619) 793-5303 to discuss your options.
