Eligibility Requirements for Non-Lawful Permanent Resident Aliens

The eligibility requirements for non-lawful permanent resident aliens are much more difficult than those compared to lawful permanent residents. Both parties can face removal proceedings, but the process for non-lawful permanent resident aliens include extra clauses and evidence that would burden any family or individual in this situation. If you are a non-lawful permanent resident alien and find yourself in the middle of removal proceedings, it is crucial you hire an experienced Maryland cancellation of removal attorney to help guide you through this stressful and important process.

Eligibility of Non-Lawful Permanent Residents

Non-lawful permanent residents can be eligible for cancellation of removal, but it is a different set of requirements even though the process is similar. Non-lawful permanent residents must have ten years of physical presence in the U.S., versus the seven-year requirement for lawful permanent residents. They also need to demonstrate that they have been continuously, physically present in the U.S. for ten years prior to being placed in removal proceedings.

Non-lawful permanent residents will also need to demonstrate that they have a qualifying relative who is going to face hardship. That needs to be a lawful permanent resident or U.S. citizen’s spouse, parent, or child who is going to suffer exceptional, extreme and unusual hardship if the individual in removal proceedings were deported. They also have to prove good moral character for at least 10 years. and that they warrant a favorable exercise of discretion. Non-lawful permanent residents must also prove that they do not have any disqualifying criminal convictions, namely an aggravated felony.

Eligibility Timeline

The physical presence clause starts the date the individual entered the United States. However, if there was an absence in time, such as entering the country illegally and then returning to the individual’s home country for a few years before coming back to the states, the clause will start at the date of the most recent entry.

There are occasionally exceptions to this. An individual can argue that a brief departure did not interrupt physical presence, but typically they must be physically present without interruption for the entire 10-year period. The date that the clock stops is the date that is printed on the Notice To Appear, or NTA. There is occasionally some leeway. Prosecutorial discretion can come into play in cancellation of removal cases by convincing the prosecutor to withdraw and re-issue the NTA in situations where someone is close to meeting the physical presence requirement. It can be issued to reflect a slightly later date, so the 10-year requirement can be met. This, however, is rare and difficult to accomplish. It may, however, be something to discuss with an attorney.

Good Moral Character

Good moral character is a general requirement that constitutes a favorable exercise of discretion, by documenting positive traits of a good person. These can include traits as being a responsible and upstanding member of the community. Certain statutory offenses or activities can disqualify an individual from proving good moral character.

If they have served more than 180 days in jail within the 10-year period as a result of convictions, this may eliminate the finding of good moral character. The presumption is that the individual has good moral character, but criminal offenses can shift that presumption. Time spent in jail as well as other disqualifying factors for good moral character, such as a habitual drunkard, thought to be polygamous, or certain domestic violence issues can affect an individual’s case.

Disqualification

There are a number of things that can actually disqualify an individual without a criminal conviction. Generally, however, the most common way to disqualify someone from proving good moral character is a criminal offense.

Proving Exceptional and Extreme Hardship

Proving exceptional and extreme hardship is case specific to each family. Most importantly, the only person or people the government is concerned with are the family members who have legal status. The hardship of the applicant is not a concern. An individual needs to prove how the hardship will impact the family member who has legal status. There are a few different ways to go about this. Medical issues with you or your qualifying relative is another option and are important to submit any evidence of.

If an individual does not have a very strong case, they may want to consider sending a qualifying relative to a counselor to discuss any emotional and psychological impact the departure of the non-LPR would cause. A judge needs to be convinced that the situation is in a different, more extreme category than the average family living without a family member.

Eligibility of Non-LPRs vs. LPRs

It is much more difficult for non-LPRs to fulfill eligibility requirements because they must show the qualifying relative who is going to face exceptional and extremely unusual hardship. It is a very high bar and is difficult to prove. Many times, that is the most difficult obstacle to overcome that LPRs do not have to deal with at all.