Practice Advisory | June 2018 NON-LPR CANCELLATION OF REMOVAL An Overview of Eligibility for Immigration Practitioners I. Introduction Cancellation of removal for Non Permanent Residents under INA § 240A(b)(1) (“non-LPR cancellation of removal”) is a critical defense to deportation available to certain noncitizens with family in the United States. A person who is granted non-LPR cancellation of removal receives a green card. Cancellation is a “defensive” application, meaning that it is only available to someone facing removal in immigration court. This means that, unlike many other applications for a green card, or lawful permanent residence, a person cannot apply for cancellation of removal by affirmatively submitting an application to the U.S. Citizenship and Immigration Services (USCIS). The eligibility requirements for non-LPR cancellation are distinct from other means of applying for a green card, and also from other types of cancellation of removal. It is imperative for immigration practitioners to be familiar with non-LPR cancellation, as it may be the only form of immigration relief available for many people in removal proceedings who entered the United States without inspection. This practice advisory will walk through the basic requirements to help practitioners screen for cancellation eligibility. The law is complicated, however; and by definition, all cancellation applicants are in removal proceedings, so the stakes are high. For a thorough analysis of cancellation of removal, see ILRC, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal. II. Cancellation of Removal Requirements A person qualifies for non-LPR cancellation of removal if she is in removal proceedings because she is inadmissible or deportable and meets the following criteria. Each of these requirements will be discussed in more detail below: 1. she has been physically present in the United States continuously for at least ten years; 2. she has had good moral character for ten years; 3. she has not been convicted of certain offenses [crimes listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3)]; 4. to deport her would cause exceptional and extremely unusual hardship to her LPR or U.S. citizen spouse, child, or parent.1 1 INA § 240A(b)(1). Non-LPR Cancellation of Removal|JUNE 2018 1 NON-LPR CANCELLATION OF REMOVAL Under INA § 240A(c), non-LPR cancellation of removal is not available to the following people: a. people who already have received cancellation of removal, suspension of deportation, or INA § 212(c) relief;2 b. people who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds; and c. crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors. WARNING! It Is Risky to Place Your Client in Removal Proceedings in Order to Apply for Cancellation of Removal. It can be difficult to win a non-LPR cancellation case, especially because of the “exceptional and extremely unusual” hardship requirement. Practitioners should not take steps to place their clients in removal proceedings in order to apply for non-LPR cancellation—except in extremely strong cases. For the most part, practitioners should pursue cancellation of removal cases only when their clients are already in removal proceedings. A. Continuous Physical Presence To meet the first requirement for non-LPR cancellation of removal, the applicant must show that she has ten years of continuous physical presence in the United States.3 This brings up two important questions. First, when does the ten-year period end (or, as it is sometimes described, what “stops the clock”)? Second, what effect do absences from the United States have? 1. The Ten-Year Clock Stops with Service of the Notice to Appear Under INA § 240A(d)(1), the applicant must acquire ten years of continuous presence before the Notice to Appear (“NTA”) is served on her. An NTA is the charging document that initiates removal proceedings against a person. In it, ICE must state why it believes the person is removable (indicating whether the person is deportable or inadmissible), and must give several warnings. Once the applicant has been served an NTA, the clock “stops,” and she cannot count any more time in the United States towards the ten-year requirement. Example: Jose Morales lived in the United States without leaving from April 1, 2008 until the present. Jose was served a Notice to Appear in removal proceedings in 2017. He does not qualify for cancellation of removal, even though he is still currently in court proceedings. Although now he has lived in the United States for more than ten years, he only has nine years of continuous residence because the clock stopped when he was served the Notice to Appear in 2017. The BIA and many courts have held that once a person has been served with a charging document, time is generally stopped for good. In other words, the clock cannot be restarted by an additional ten-year period after service of the charging document. See Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000).4 Note that in 2 Relief pursuant to former INA § 212(c) is a cancellation-type remedy for lawful permanent residents. 3 INA § 240A(b)(1). 4 Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262, 1299-1300 (11th Cir. 2001); McBride v. INS, 238 F.3d 371, 377 (5th Cir. 2001); Afolayan v. INS, 219 F.3d 784, 789 (8th Cir. 2000). 2 NON-LPR CANCELLATION OF REMOVAL | JUNE 2018 PRACTICE ALERT ON RAMIREZ V. BROWN Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004), the BIA carved out an exception to this rule for people who were in deportation proceedings before IIRIRA.5 2. Continuous Physical Presence Also Ends When the Immigrant Commits Certain Offenses The ten-year physical presence clock also stops when the person commits an offense that is “referred to” in INA § 212(a)(2) and that makes the person inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2) or INA § 237(a)(4) (grounds regarding crimes and terrorism). This is essentially a moot point for non-LPR cancellation, however, because any crime that would stop the clock would also entirely bar the person from applying because it would come within the criminal bars to non-LPR cancellation.6 3. The Effect of Absences on Continuous Physical Presence The continuous physical presence requirement does not mean the client cannot ever have left the United States. Continuous physical presence stops only if any one absence during the ten-year period is more than 90 days, or if all absences in the aggregate total more than 180 days.7 Example: Yen has lived in the United States since 2005. She was recently picked up by immigration authorities and placed in removal proceedings. Since coming to the United States, Yen has left the United States several times. Four years ago, she left the United States for 75 days to care for her sick mother; two years ago, she left for 80 days to visit family; and last year she left for 50 days. Although none of Yen’s absences individually were more than 90 days, together they totaled 205 days. Yen is ineligible for cancellation of removal because her absences total more than 180 days and therefore broke her continuous presence in the United States. 4. Absences or departures under threat of deportation Leaving the United States “under threat of deportation” will also interrupt continuous physical presence, regardless of how long the absence is. If the person has been ordered removed and then leaves the United States, even for just a few days, she will have interrupted her continuous physical presence. Leaving after a removal order breaks continuous physical presence even if the person did not know about the order, such as if the person never received her NTA and was ordered removed in absentia. Leaving after a removal order breaks continuous physical presence even if the person was ordered removed without a court hearing, as in an expedited order of removal 5 23 I&N Dec. at 672. In a fractured opinion, the Third Circuit also held that someone who had a criminal conviction that stopped time for cancellation purposes but re-entered the United States legally thereafter, accrued a new period of physical presence for cancellation eligibility. Okeke v. Gonzales, 407 F.3d, 585 (3d Cir. 2005). However, the Third Circuit has since declined to extend Okeke and held that a clock cannot restart. See Nelson v. Attorney General of U.S., 685 F.3d 318 (3d Cir. 2012) (finding that a re-entry subsequent to commission of a crime does not restart the continuous physical presence). 6 INA § 240A(b)(1)(C). 7 See INA § 240A(d)(2). Note that one absence of 90 days or multiple absences that total more than 180 days in the aggregate will not constitute a break in continuous physical presence if the applicant 1) has served for at least 24 months in an active duty status in the U.S. Armed Services, and if she stopped serving, it was under honorable conditions; and 2) at the time of enlistment, she was in the United States. See INA § 240A(d)(3). NON-LPR CANCELLATION OF REMOVAL | JUNE 2018 3 NON-LPR CANCELLATION OF REMOVAL (which usually takes place at the border). A person in this situation who is apprehended after an expedited removal is subject to reinstatement of removal; in practice, this person would likely be removed again without the chance to see an immigration judge and apply for cancellation of removal.