I. Introduction to Cancellation of Removal
In general, Cancellation of Removal (Cancellation) is one of the defensive applications, which can only be made before an immigration judge during a removal hearing. This means that the application for cancellation of removal is only to be filed in Immigration Court, before the EOIR (Executive Office for Immigration Review) and not before the Department of Homeland Security (DHS). If the cancellation of removal application is approved, it would eliminate the deportation/removal of the noncitizen and, depending on the circumstances, allow the noncitizen to either retain his or her LPR (Legal Permanent Resident) status or acquire it for the first time. To be granted the benefit, the applicant needs to meet rigorous eligibility requirements and also convince the judge that he or she deserves the favorable exercise of discretion. This benefit is only available in rather limited number of circumstances and is a one-time deal. Once the noncitizen was granted the benefit, he or she would not be able to seek it again for the duration of his or her natural life — the fact one should always keep in mind. The benefit is provided by the Congress. It is a statutory remedy spelled out in the §240A of the Immigration and Nationality Act (INA) and implemented by the federal regulations found in Title 8 of the Code of Federal Regulations (8 C.F.R.)
Brief History of the Cancellation of Removal Remedy
The benefit came as a result of the major overhaul of the U.S. system, also known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Section §304 of the IIRAIRA amended and restructured the INA to eliminate former INA§ 212(c), which provided for a more liberal procedure known as Suspension of Deportation (Suspension). This procedure was replaced with a much more restrictive benefit — Cancellation. There are two forms of Cancellation. One found in the current INA §240A(a) and reserved for Legal Permanent Residents (LPRs) — Cancellation A, also referred to Cancellation of Removal for Permanent Residents. The other, in INA 240A(b) and reserved for individuals who are not Legal Permanent Residents — Cancelation B, also referred to Cancellation of Removal for Non-permanent Residents. There are substantial differences between Suspension and Cancellation of Removal including the basic eligibility requirements which have changed dramatically. This Article will address Cancellation-A benefit for Legal Permanent Residents (LPR).
Cancellation-A (for Permanent Residents) v. Suspension
Unlike Suspension, Cancellation-A (Cancellation of Removal for Permanent Residents) may potentially waive almost all grounds of removability but is only applicable to waive inadmissibility association with commission of relatively minor crimes. Again, unlike Suspensions, it is completely unavailable for Legal Permanent Resident (LPRs) who committed an offence defined by the INA as an aggravated felony as set forth in INA 101(a)(43). It is also not available for individuals whose past actions created security-related removability. Generally much more restrictive than Suspension, Cancellation-A did improve one aspect of the eligibility not previously available for Suspension applicants — it extended the reach of the benefit to include deportability grounds which have no comparable grounds of inadmissibility. Previously, under the former INA 212(c)(Suspension statute), individuals seeking Suspension who were inadmissible on one or more of such grounds, were not eligible for Suspension. The change from Suspension to Cancellation has eliminated this technical yet very unfortunate difficulty. AS an example, convictions for firearm offenses could not have been waived for this reason by the Suspension process. They can be now under the current Cancelation-A rules (cancellation of removal for permanent residents)
In all other respects, Cancellation-A is a much more restrictive remedy than Suspension under former INA 212(c). That includes that fact that Cancellation-A is not available to waive removability for criminal offences defined as aggravated felonies in INA § 101(a)(43), while Suspension could waive inadmissibility grounds which arose out of convictions for most crimes including aggravated felonies for which the noncitizen severed less than five years in prison. In fact, only crimes for which the respondent served five years or longer in prison or some security grounds used to preclude Suspension as a matter of law.
Policies Behind Cancellation of Removal for Permanent Residents and Non-residents
The fundamental considerations which created the benefit of Cancellation were somewhat different between those behind LPR (legal permanent resident) Cancellation-A and non-LPR Cancellation-B. Cancellation-A was intended to address immigration consequences of many relatively minor criminal convictions for Legal Permanent Residents, thus putting an individual's personal factors — the equities, into consideration for purposes of determining whether to allow the legal permanent resident (LPR) to keep his or her immigration status in light of his or her criminal conviction. Thus, Cancellation-A provides a mechanism for bringing the hardships their respective family members would potentially suffer as a result of the deportation of their loved ones, into the decision making process when an judge adjudicates whether to deport the Legal Permanent Residents (LPR) for having engaged in criminal activity for which he or she had been convicted in criminal court. Thus, the idea behind the benefit is to provide for a second chance for the Legal Permanent Residents (LPR) to protect the family members in order to avoid imposition of extreme and unusual hardship on them as a result of the criminal activity of their loved one. In this respect, it purported to provide continuity to the former INA § 212(c) waiver it replaced.
By contrast and with the exception of the noncitizens subjects to spousal abuse, Cancellation-B or Cancellation of Removal for Non-permanent Residents, though is also motivated by the Congress's desire to prevent extreme and unusual hardship to the family members, takes into account many other equitable factors including the length of the alien's residence and various humanitarian concerns to provide the noncitizen with a new benefit — Legal Permanent Residency.
Special, much more relaxed provisions of the Cancellation-B, apply to individuals subjected to severe forms of spousal abuse by their Legal Permanent Resident (LPR) or United States Citizen (USC) spouses. These rules incorporate provisions of the Violence Against Women Act as well as the § 203 of NACARA to create a much more liberally granted benefit generally known as VAWA Cancellation of Removal. This Cancellation application falls under the Cancellation-B category.
II. Cancellation-A (Cancellation of Removal for Permanent Residents). Overview
INA §240A(a) authorizes the Attorney General of the United States or his or her designees to cancel removal of the alien in the exercise of the sole administrative discretion “in the case of an alien who is inadmissible or deportable from the United States if the following is true: (1) the noncitizen has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. These three factors are considered the cancellation of removal requirements for Cancellation-A.
The Board of Immigration Appeals (BIA) is the highest administrative appellate body having jurisdiction over all immigration judges nationwide. Its decisions govern adjudication of immigration cases by courts throughout the United States. BIA decisions designated as precedents are binding on all judges in the country. By regulation, BIA has denovo jurisdiction to review all questions of law in matters in which the BIA enjoys jurisdiction. In a string of precedent decisions BIA addressed various elements of the Cancelation-A eligibility thus providing guidance on the issue and procedure to the courts nationwide.
Five Years in Legal Permanent Resident (LPR) Status
The very first eligibility requirements for Cancellation of Removal for Permanent Residents or alternatively, Cancelation-A is that the applicant must have been an Legal Permanent Resident (LPR) for “not less than 5 years”. This is a generally straightforward requirement but some nuisances should be taken into account. For instance, individuals who adjusted their status under the Cuban Refugee Adjustment Act of 1966 are given some slack. Specifically, BIA concluded in the Matter of Rivera-Rioseco, 19 I&N Dec. 833 (BIA 1988) that their five-year residency period would start running 30 months retroactive to the date when they applied for adjustment of status. Hence, if the LPR's status was adjusted but USCIS took time to adjudicate the adjustment of status application, which is often the case, up to 30 months of such time would be included in the residency period for Cancelation-A purposes. That would not mean the noncitizen was an LPR during that period, but that the period is included in the five-year statutory requirement for Cancelation-A purposes.
Fraud and Willful Misrepresentation of a Material Fact Are not Excused
At the same time, the law does not excuse fraud. In the Matter of Koloamatang;, 23, I&N Dec. 548 (BIA 2003), BIA ruled that an individual who had managed to obtain Legal Permanent Residency by fraud or willful misrepresentation of a material fact would not be able to rely on the time in Legal Permanent Resident (LPR) status to satisfy the five-year requirement for Cancelation-A purposes. Some Appellate courts went farther than the Board and expended on these nuances. For instance, the U.S. Court of Appeals for the 11th Circuit concluded that even agency error made to no fault of the noncitizen would still preclude the accumulation of the necessary 5 years for Cancelation-A purposes. In Savoury V. Atty Gen. of the U.S., 449 F.3d 1307, 1313-17 (11th Cir: 2006) the Court decided that even though the applicant had fully disclosed his prior drug conviction in the adjustment of status process, because that conviction rendered him statutorily ineligible for adjustment of status, he was not an LPR for purpose of the waiver under former INA 212(c) which carried the continuous residency requirement similar to that for Cancelation-A. The Court concluded that it was true even though the error was committed by USCIS and was not due to fraud or misrepresentation by the applicant. The Court embraced and expended upon the BIA's reading of the law that even genuine Agency's error in granting the status still made the applicant ineligible to count the years in such Legal Permanent Resident (LPR) status for purposes of the five year continuous residency requirement. U.S. Court of Appeals for the 8th Circuit concurred on this point and offered a similar reading in Arellano Garcia v. Gonzales, 429 F.3d 1183 (8th Cir; 2005). Two decades earlier, a similar issue was looked at by the U.S. Court of Appeals for the 9th Circuit. Then, the Court in essence gave rise to this line of reasoning by concluding in Monet v INS, 791 F:2d 752 (9th Cir. 1986) that failure to disclose foreign conviction rendered the Legal Permanent Resident (LPR) status invalid for continuous presence requirement for §212(c) purposes.
Waivers Can Be Combined To Preserve The Five-Year Residency Requirement
However, when a combination of waivers is available to waive the conviction at the time the LPR status was obtained, the BIA allows for the five year residency requirement to be preserved at least for purposes of the INA 212(c). As the rational is similar, it arguably applies for Cancelation-A purposes as well. In the Matter of Sosa-Hernandez, 20 I&N Dec; 758 (BIA 1993) the BIA looked at this very issue and allowed for the “stacking” of the waivers. The Board decided that availability of the waiver of deportability grounds to the respondent under the old INA §241(f)) which effectively waived the fraud or misrepresentation retroactive to the adjustment of status date, thus preserved the residency requirement for INA212(c) waiver.
Retaining Eligibility for Cancellation-B
At the same time, when the five-year residency period cannot be preserved for Cancellation-A, the noncitizen might still be eligible to seek Cancelation-B and thus to require the Legal Permanent Resident (LPR) status anew though the adjustment of status process. This, however, would require immigrant visa availability which often may run into the issue of priority and backlog.
Continuous Presence / Residence Requirement in Cancellation of Removal Cases
The second eligibility requirement for Cancellation-A is that the LPR maintained continuous presence or residence in the USA for at least seven years, provided that at least five of those year he or she spent in an Legal Permanent Resident (LPR) status after having been admitted “in any status”. Hence, provided the noncitizen was initially admitted in some lawful status, that time following that admission (up to two years in not LPR status) can be counted to comply with the continuous residence requirement even if that nonimmigrant status was not maintained and the noncitizen fell out of status at some point after the admission. It is especially important, when the LPR originally came into this country without having been admitted — as an entry without inspection (EWI) for instance. In such a case, the LPR would need to show seven years of continuous residence as an LPR to satisfy the seven year eligibility requirement for Cancellation-A.
The “stop-time” rule
There are circumstances, which render the time accumulation for continuous residence purposes to halt. In other words, once such circumstance occurred, no time that lapsed after the occurrence of such circumstance can be counted toward the continuous residence requirement. In this respect, the circumstance “stops” the time accumulation. Several of such circumstances are identified by the law. 1. Service of the Notice To Appear (NTA). Once the NTA was served, the accumulation of time stops so only the time which lapsed prior to the service of the NTA can be counted towards the continuous presence requirement. 2. Committing of some crimes might stop the time accumulation.
Stop Time Rule Does Not Apply To Five-Year Residency Requirement
It is very important not to confuse the five-year legal residency requirement with the continuous presence or residence requirement of seven years. While the so-called “stop-time” rule does apply to the latter, it does not to the former. Hence if the noncitizen commits a “time stopping” crime after he/she has accrued 7 years of residence but only four years of LPR status, or other time-stopping event occurs, he or she would remain eligible for Cancellation-A, provided other eligibility requirements are met.
The Balancing of Factors
INA 240A(a) continued to utilized the adjudication standard previously applicable to INA 212(c). Hence, most BIA precedents in this area are still applicable even though the law has changed. The most detailed discussion of the standard can be found in the BIA precedent decision in the Matter of C-V-T-, 22 I&N (BIA 1998). There, BIA discussed the balancing of the negative and balancing factors by the judges in making a determination on whether a particular responder could be granted Cancelation-A in the exercise of discretion. The factors are as follows:
- Family ties in the U.S.
- Length of residence in the USA
- Hardship to the respondent's family in the event of removal
- Respondent's employment and/or business history in the USA
- Respondent's chartable history and his or her service to the community
- Evidence of genuine rehabilitation
- Circumstances, which lead to the rise of the applicable grounds of removability
- Entire record of violations of U.S. immigration laws
- Respondent's history of criminal behavior
The Board concluded that the more extensive the negative factors were in a case, the more of the equities would be needed to warrant favorable exercise of discretion in the balancing of factors by the judge. For this reason, a hearing in Cancelation-A application might prove to be quite lengthy and exhaustive. Hence, retaining of a knowledgeable immigration attorney is well advised.
“Aggravated felony” bar to Cancellation-A
Cancellation-A is not available to LPRs who were convicted for an offense which U.S. Immigration Law considered an aggravated felony. Hence, the relevant inquiry in each case has always to be whether the conviction was for aggravated felony, which may prove to be a complex determination.
INA § 101(a)(43) 8 U.S.C. §1101(a)(43); 8 C.F.R. §1.2 define the term “aggravated felony” to include two general classes of criminal offences — (1) those specifically recognized by the statute as aggravated felonies regardless of the sentence and (2) those which carry a potential of becoming an aggravated felony depending on the punishment imposed.
Criminal offenses recognized in the text of the statute specifically as aggravated felonies regardless of the punishment imposed:
- Murder, rape, or sexual abuse of a minor. A person convicted of any of these has been convicted of an aggravated felony in the eyes of U.S. Law, period, full stop.
- Illicit trafficking in a controlled substance as defined in 21 U.S.C §802, including a drug trafficking crime as defined in 18 U.S.C §924(c);
- Illicit trafficking in firearms or destructive devices as defined in 18 §921 or in explosive materials as defined in 18 U.S.C. 841(c);
- Laundering of monetary finds and related offences as defined in 18 U.S.C. §§1956, 1957 when the amount of the funds exceeded $10,000;
- Offenses related to explosive materials as described in 18 U.S.C. §§842(h),(i) and 844(d),(e),(f),(g)(h) and (i);
- Firearms related offenses as described in 18 U.S.C. §§ 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), and (r) or 924(b) and (h) as well as 26 U.S.C. §5861;
- An offense related to the demand for or receipt of ransom as described in 18 U.S.C. §§875, 876, 877, and 1202;
- An offense related to child pornography as described in 18 U.S.C. §§2251, 2251A, or 2252;
- An offense of, or related to owning, controlling, managing, or supervising of a prostitution business as described in section 18 U.S.C.§§ 2421, 2422, if committed for commercial advantage;
- An offence of, or related to transportation for the purpose of prostitution as described in 18 U.S.C. §2423 if committed for commercial advantage; or
- An offense of or related to peonage, slavery, involuntary servitude, and trafficking in persons as described in 18 U.S.C. §§ 1581-1585 or 1588-1591;
- An offense of, or related to U.S. national security including gathering or transmitting national defense information, as described in 18 U.S.C. §793; disclosure of classified information as described in 18 U.S.C.§798; sabotage as described in 18 U.S.C. §2153; treason as described in 18 U.S.C. §§2381 or 2382; protecting the identity of undercover intelligence agents or protecting the identity of undercover agents as described in 50 U.S.C. §3121.
- An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or of tax evasion as described in 26 U.S.C. §7201 in which the revenue loss to the Government exceeds $10,000;
- An offense related to alien smuggling described in paragraph (1)(A) or (2) of 26U.S.C. §1324(a) except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent and no other individual to enter the USA
- An offense of improper entry as described in 26 U.S.C.§§ 1325 (a), 1326 committed by an alien who was previously deported on the basis of a conviction for an aggravated felony.
- An offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed;
- An offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
Criminal offenses which carry a potential of becoming aggravated felonies when the sentence of imprisonment is one year or more:
- A crime of violence as defined in 18 U.S.C. §16 (with the exception of offences which are purely political in nature);
- A theft offense including receipt of stolen property or burglary offense;
- An offense of falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of 18 U.S.C. §1543 or document fraud as described in 18 U.S.C. §1546(a), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent and no other individual to enter the USA;
- An offense related to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered;
- An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness;
Criminal offenses which carry a potential of becoming aggravated felonies when a sentence of one year imprisonment or more may be imposed
There may be a situation when the noncitizen is convicted for a crime for which he or she is sentenced to a term of imprisonment of less than a year. There are criminal offenses when, unlike others, such sentence will not prevent the immigration law treating such offence as aggravated felony because the statute predicates such treatment on the length of the potential sentence that could be imposed and not the term of actual imprisonment. These are such offenses:
- An offense of, or related to racketeer influenced corrupt organizations as described in 18U.S.C.§ 1962;
- An offense of or related to illegal gambling as described in 18 U.S.C. §1084 or 18 U.S.C. §1955, if it is a second or subsequent offense;
It is important to note that any attempt or conspiracy to commit any of the offenses described above carries the same consequence in the eyes of the Law as the underlying offense. It is also important to note that the offense in question is an aggravated felony for purposes of the INA regardless of whether it was in violation of Federal or State law and even such when the conviction took place in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
Cancellation of Removal and Suspension of Deportation
- 8 USC § 1101, et seq.
- INA § 240A(a), 8 USC § 1229b(a).
- INA § 240A(b)(1), 8 USC § 1229b(b)(1).
- INA § 240A(b)(2), 8 USC § 1229b(b)(2). This relief was first introduced into the INA by the Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103-322 (108 Stat. 1902-1955). Improvements were made to the remedy by the Battered Immigrant Protection Act of 1994, Pub. L. No. 106-386 (114 Stat. 1464).
- 82 8 CFR § 1258(c)(1).
- 83 8 CFR § 1258(c)(2).
- 84 8 CFR § 1258(c)(3).
- 85 8 CFR § 1258(c)(4).
- 86 8 CFR § 1258(c)(5).
- 87 8 CFR § 1258(c)(6).
INA §240A(a), 8 U.S.C. §1229b(a), 8 C.F.R. §§1240.l1(a), 1240.20.
Restatement of Eligibility for Cancelation-A: Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of C-V-T-,22 I&N Dec. 7 (BIA 1998).
- 89 INA § 240A(a)(2), 8 USC § 1229b(a)(2).
- 90 INA § 240A(a)(2), 8 USC § 1229b(a)(2). See also Matter of Blancar, 23 I&N Dec. 458 (BIA 2002).
- 91 INA § 240A(d)(1), 8 USC 8 USC § 1229b(d)(1).
- 92 INA § 240A(d)(1), 8 USC § 1229b(d)(1).
Aggravated Felonies-INA §§IOI(a)(43), 237(a)(2)(A)(iii), 8 U.S.C. §§1101(a)(43), 1227(a)(2)(A)(iii); S. Rep. No. 55, IOlst Cong. 2d Sess. (1990); 134Cong. Rec. S17301, S17318 (1988); 136 Congo Rec. at S17106, SI7117; SI7741 (Oct. 26—27, 1990); H.R. Rep. No. 681, 10lst Congo 2d Sess. 1990, reprinted in 1990 U.S.C.C.A.N. 6472, 6553; PL 103-416, Sec. 222, 140 Congo Rec. at SI4479-02, SI4543 (1994), 140 Congo Rec. at HI1291-01, H11293 (1994); H.R. Rep. No. 104-22 (1995); 141 Congo Rec. E330 (1995); H.R. Conf Rep. No. 828, 104th Cong., 2d Sess. (1996) at 223.