Lawful Permanent Resident’s Cancellation of Removal in Virginia

Sometimes people believe that they are eligible for a cancellation of removal because they have five years of lawful permanent residence at the time that the case is adjudicated in front of the judge or at the time that the first master calendar hearing is scheduled. This is not true, the time is determined by the date that is on the notice to appear. Before moving forward with the cancellation of removal, the first thing that has to be done is confirming that all of the statutory requirements are met.

Lawful permanent residents should:

  • Be very aware of all of the time rules
  • Make sure that they meet the physical presence and legal permanent resident duration requirements
  • Be adequately prepared to defend themselves on the discretionary factor.

If you are an LPR applying for a cancellation of removal in Virginia, it is important to have an experienced Virginia Cancellation of Removal lawyer on your side.

Eligibility Requirements

If someone is a lawful permanent resident and they want to apply for Cancellation of Removal, they first need to be on removal proceedings. Second, they need to have been an LPR for at least five years at the time that their application is filed or the attendant notice to appear was issued. They need to have resided in the United States for at least seven years after being admitted to the United States. That presence begins the date they are admitted to the United States in a lawful status, and it ends the day their notice to appear was issued.

Someone cannot ever receive Cancellation of Removal in the past, so they cannot get it twice. They cannot have any aggravated felonies on their record and then they also have to show their case warrants a favorable exercise of discretion. They have to say that and prove to the judge the positives in their case as a whole outweigh the negatives.

A lawful permanent resident (LPR) could be facing removal proceedings because they committed a criminal offense that violated their status. As long as that criminal offense was not an aggravated felony, then they could still be eligible to apply for Cancellation of Removal. Another way is if a legal permanent resident has spent a significant time abroad and they have abandoned their residency, they can be placed into removal proceedings when they re-enter the country. In that case, if they do not have a good argument to reinstate their green card in another way by arguing that they have an abandoned residency, then they could be eligible for cancellation as well.

Physical Presence Requirements

The physical presence requirement affords the stop-time rule. The date their clock stops on the seven years of physical presence is required to qualify for cancellation. It is the date they are lawfully admitted in any status to the United States. Someone may have entered as a student or on a student visa and then adjusted their status through marriage, in this case, they would not start the clock at the date they got their green card. They would start the clock at the date they were last admitted in a lawful status, for instance as a student.

The date that the clock stops is the date on the notice to appear. That can be a problem for some people and sometimes there are really unfortunate cases where maybe the notice to appear was issued days before they met the seven-year requirement. In those cases, an attorney can talk to the prosecutor and in some cases, they will be amenable to reissuing the notice to appear. They can terminate the case in front of the immigration judge and re-initiate removal proceedings with the different date on the notice to appear so that somebody can qualify. But you need to basically request prosecutorial discussion for the prosecutor to do this and you have to have some good equities in your case in order for them to want to help you in this way.

The Process

The first thing that will happen is the notice to appear will be issued. In some cases, the person may be detained if they have a criminal offense that makes them removable, and they may actually have to apply for a bond at the initiation of the proceedings. In some cases, an individual may not be eligible for a bond, so they will have to spend the entire day of the cancellation of removal case in jail. One caveat of that is if a person is in detention, then they will be placed in a different docket in the court, and the case will be faster so they are not going to sit in jail for five years waiting to apply for cancellation. 

Even though it is still not fast, it is definitely faster than people who are not in detention. The first step is determining eligibility, and then attending the master calendar hearing, which is a hearing with a number of other respondents in front of the court. The detainee will tell the judge that this is the release that they are going to be seeking. Then, the 42A application needs to be submitted; this includes several pages of biographical information and all information about the applicant’s immigration and criminal history.

The process and its length depend completely upon where the applicant is in removal proceedings, because it depends on the calendar of the court. In Virginia, it is probably going to take around five years at this time, because the state is extremely backlogged and it takes a long time to hold individual hearing dates.

While it ultimately depends on the case, most people are applying for Cancellation of Removal because it is their only option. If eligible, a person should absolutely apply in order to remain in the United States in lawful status. An experienced Virginia cancellation of removal attorney can guide applicants through the process to assist them in achieving the best outcome.

Common Application Mistakes 

One of the most common mistakes is that people neglect some of the statutory requirements when they believe that they merely need to present a strong argument to prove that they deserve an extra side of positive discussion. A person may have to present a great deal of evidence if they have a serious criminal offense that led to the removal proceedings, but a sole focus on this can lead to neglect of the other documentary evidence. For example, a person may forget they have to prove physical presence, or they may miscalculate the physical presence.

Consulting with an Immigration Attorney

An immigration judge will make the initial determination as to whether an application for cancellation should be approved. There is a tremendous amount at stake in cancellation of removal cases, especially for people who are legal permanent residents and have been here for an extended period of time. This is the last option and only hope of remaining in the United States legally, so it is extremely important to have an experienced Virginia immigration lawyer who is aware of the laws and specifics of the situation, and who has a working knowledge of the judge that the client will be appearing in front of.

The discretionary decision that is going to be made by the judge is something that an applicant needs to put time into in order to ensure that they really warrant an exercise of positive discretion. In some cases, as long as a person has been here for a long time and does not have a serious criminal record, the exercise of discretion element of the case will be simple to overcome. In other cases, the judges are more discerning on the discretionary elements of the case, and the applicant needs to work hard to prove that the good factors in their case outweigh their criminal offense. Knowing the judge is critical, and constructing the best defense for that judge is something that an experienced immigration attorney can help craft.