Virginia Cancellation of Removal Lawyer

Cancellation of removal is a type of immigration status or benefit only available to people who are in removal or deportation proceedings. It is a way that individuals, often with no other options for immigration release, can apply to terminate their removal proceedings and obtain the status of a legal permanent resident. A person cannot apply for it affirmatively if they are not in immigration court proceedings. If cancellation is granted, the reasons that a person became inadmissible or fell out of status and the reasons they were placed into removal proceedings are cleared from their record moving forward. If they are granted cancellation of removal and become a resident through that route, they are eligible for naturalization in the future assuming they don’t commit any other crimes or have any other immigration violations during the time they are in legal permanent resident status. When someone is faced with a situation where they are considering cancellation of removal they should consult with a Virginia deportation defense attorney who can determine if they should apply for the status, and guide them through the application process.

Eligibility

There are two types of individuals eligible for cancellation of removal and there are two categories of cancellation. One is for people placed into deportation proceedings while they have green cards, e.g. – legal permanent residents, the other is for people who are undocumented or non-legal permanent residents.

Non-Legal Permanent Residents

The standard is different for non-legal permanent residents and permanent residents. For non-legal permanent residents, the person must prove they have had a continuous physical presence in the United States for ten years or more. It is important that they are able to document that, which can be difficult for some people who are here illegally. The person must prove the date they entered and prove they haven’t departed in the past ten years. They must also prove they are a person of good moral character and have not been convicted of an aggravated felony or crime of moral turpitude. The most difficult part usually is that they must prove that their removal would result in exceptional and extremely unusual hardship to a United States citizen (USC) or lawful permanent resident (LPR) such as a spouse, parent, or child. Finally, the person must show that they are deserving of a favorable exercise of discretion.

Legal Permanent Residents

A lawful permanent resident cannot be eligible for a cancellation of removal unless they violated their lawful permanent residence status in some way and are in removal proceedings. Generally, this occurs because they have committed a criminal offense that violates their status, but it can also be done if they abandon residency and were placed into removal proceedings. It can happen for other reasons as well—if their green card is being challenged in court and they do not have the opportunity to renew it in the traditional way, then they can apply for Cancellation of Removal.

The legal permanent resident who applies for cancellation of removal does not have to prove hardship to their USC or LPR relative. They just need to prove their continuous physical presence in the United States and for only seven years as opposed to ten. They do not have any requirement to prove a hardship to a qualifying spouse, or parent, or child, but they still have to prove that they are deserving of a favorable exercise of discretion.

Victims of Abuse

Finally, there is a third type of cancellation of removal that is available to people who have been victims of domestic violence, battered, or subjected to extreme cruelty by a United States citizen, lawful permanent resident spouse, or parent. It is called a VAWA cancellation and has different requirements than the other two types.

Experts Witnesses

It is important to have an immigration attorney in these cases because they can be complex cases that need to be carefully litigated in front of the immigration court. Another type of expert an immigration attorney can help someone hire when they are defending themselves are psychologists who can attest to the suffering that the person’s qualifying family member will endure if they are not in the United States. This is just for the non-legal permanent residents, who must prove the exceptional and extremely unusual hardship point. They can also hire country condition experts such as professors or foreign policy experts who can attest to the conditions in the person’s home country. The experts can explain how the conditions in the person’s home country would impact the suffering of their family member if they had to go back home with the person or if the person was deported and forced to go home to less than ideal circumstances.

Granting Cancellation of Removal

Only an immigration judge can grant a cancellation of removal case because a person is not eligible to apply for it unless they are in immigration proceedings. There are a lot of people in the United States who might meet the requirements for cancellation and have very strong cancellation of removal cases. They want to apply for cancellation, but they are not in a deportation proceeding. It is kind of a strange situation when a person may actually be better off in immigration court or in deportation proceedings than not. In some cases, attorneys can actually try to get a notice to appear to be issued by the court, to try to artificially place someone into immigration proceedings so that they will be eligible to have the status granted in front of a judge. This is risky, and should only be done with the help and advice of a seasoned practitioner.

Impotant Things to Know

The first thing a person should know is that they are not eligible for a cancellation of removal unless they are in removal proceedings. People are often confused, believing that they are eligible for it after just being in the country for a long period of time. A person is just absolutely not eligible unless they are in immigration court proceedings.

In some cases, people have requested that a prosecutor exercise prosecutorial discretion to initiate removal proceedings and issue a notice to appear in any case, which has seemed a little counterintuitive to ask to be put on deportation proceedings, but if a person has a really compelling Cancellation of Removal case, they may want to try to go this route, but until that notice appears as issued, they cannot apply.

Another thing to remember is that the individual needs to be very thorough when documenting their presence in the United States, and this can be a challenge for people sometimes who have been living here undocumented. They do not have a big paper trail in some cases to trace their time in the United States and their date of entry, so that is something that an attorney can help with, and something that should not be overlooked even though sometimes it looks likes it is not the most difficult thing to prove in a case because they are usually concentrating on proof of hardship for non-legal, permanent residence.

Another thing to know about Cancellation of Removal is that it can take a very long time, and can only be granted by an immigration judge. The immigration courts right now are exceedingly backlogged. Right now in Virginia and Baltimore, for example, court dates for a final hearing for cancellation cases set back all the way in 2021 or 2022. It is about more than a five-year wait in some cases, so it will not happen overnight.