Cancellation of Removal Process for Non Permanent Residents in Virginia

The process for cancellation of removal for non-permanent residents is generally the same process as for a lawful permanent resident. These processes can be incredibly complicated, requiring mountains of evidence and delicate attention. Utilizing an experienced attorney is of the utmost importance, as they can craft a case to assist in providing you with the best possible outcome.

Process for Cancellation of Removal

Initially, an individual will be issued a Notice to Appear or an NTA. The individual will then be issued a notice of hearing, which will let the individual know the date that their first immigration court hearing will occur. The first immigration court hearing will be a master calendar hearing with a number of other people. An individual is going to then present the basic facts of their case to the judge. Next, an individual will let the judge know that they are going to be pursuing a release to their cancellation of removal. They will then submit the forms that they need to submit, including the 42B for non-LPR’s, and they will need to submit a copy of that form to the Texas Service Center. The center will then schedule an individual for fingerprints, and will need to wait for the immigration court to schedule an individual hearing. Sometimes, this can take a number of years.

At the individual hearing, the non-permanent resident is going to present all of the evidence, including the hardships and other statutory requirements. An individual is to prove hardship and the other statutory requirements before a judge will make a decision on the case. The prosecutor will also examine the individual during the case, and they can oppose the grant if they believe that the individual does not have a compelling case. If an individual’s case is denied at that point, they can appeal it to the board of immigration appeals, and then on to the circuit court wherever the individual is located. If an individual is in detention, the process is the same, but they will be on a different calendar. The court has a different docket for people who are detained. The non-permanent resident does not have to wait in jail for five years to adjudicate the case, but it can still be several months that they will wait if they are subject to mandatory detention, or are unable to pay a bond.

An individual should definitely apply for cancellation of removal if they are eligible. This is because for many people, this is their only option if they have any desire to stay in the United States and obtain a legal status.

Length of the Process

The length of a cancellation of removal process for non-permanent residents depends on the court that they are in. In Virginia, the waiting time is normally about five years for non-detained people to be scheduled for their individual hearings. If an individual is in detention and is not eligible for a bond, then they will be on the detain docket, which is significantly faster. However, this process will still be several months.

Points of Note

An individual should know that it is an uphill battle to prove hardship and suffering of the qualifying relative, and it is something that needs to be as thoroughly documented as possible in the case. It is something that the government is going to oppose if the individual is not an unusual case. It is important to make sure that the individual demonstrates to the court and to the prosecutor that the non-permanent resident’s situation falls outside the norm. It is also very important to document physical presence, and it is important to be prepared with as many witnesses and individuals who can provide testimonies to all the equities in the case at the day of the hearing.

Proving Good Moral Character

There are a number of different disqualifying factors for good moral character, it is not always just criminal offenses that can prohibit someone from demonstrating good moral character. The presumption is that an individual does have good moral character in these cases. Good moral character is a statutory determination that is defined in Section 101 of the Immigration and Nationality Act.

The list of disqualifying factors varies from things like multiple drunken offenses, or gambling vices, to polygamy. They are statutorily defined as preventing a person from obtaining a finding of good moral character, and people need to be aware of what the statutory bars to good moral character are before moving forward in the case.

Showcasing Unusual Hardship

The first thing for someone to do to showcase their qualifying unusual hardship is to show that they actually have a qualifying relative who is going to be the person suffering an exceptional and extremely unusual hardship and they just need to do that through birth certificates, marriage certificates, and proof of the qualifying relationship.

The second step is different in every case because every family’s hardship is going to be different. It is going to be based on their individual circumstances. If for example, someone has a child who has a medical condition, they need to thoroughly document that medical condition. They will need to have letters from doctors and letters from schools to document the suffering that the child is going to endure if they are not here in the United States with them.

If possible, it is good to have people present in court who can testify to the hardships as well. If they can have a doctor present either in person or over the phone for a court hearing, that would also be beneficial. It depends on what someone’s hardship argument is. The documents they will be submitting will depend on the type of hardship they are trying to prove.

Importance of an Attorney

It is always important to consult with an immigration attorney in cancellation of removal cases because they are difficult cases to prove, they are highly discretionary in immigration court, and it is very important for an individual to have a strong advocate for them throughout the process.

Another situation where an attorney is absolutely essential is in cases where they may be close to meeting the physical presence requirements, but not quite be there. In those cases, an attorney can apply for prosecutorial discretion, which is an application a non-permanent resident will submit. There is no kind of form or anything to fill in, but it is a petition that an individual is going to submit with the prosecutor to ask them to terminate the proceedings and re-issue the notice to appear, so the individual will have a different date on their case. It is essential that an individual has an attorney for those processes.

Common Mistakes

One common mistake individual’s make is focusing all of their attention on the substantial hardship argument, which is often the most difficult argument for most cases. However, an individual has to remember to not neglect the physical presence requirements and make sure that they do everything they can to demonstrate their date of entry.

This is a little bit more of a challenge for non-LPRs, because often if they have entered illegally, they are not going to have any set of documents showing the date of entry. If they have not had lawful status for the time that they have been in the United States, they may not have a paper trail that traces back to the date of entry. That is something that an individual will need to be prepared to litigate in front of the court. People may not properly calculate their physical presence, because they may be looking at the date of the hearing or the date that they were fist scheduled to appear in the immigration court – not the actual notice to appear. An individual needs to make sure that the date on the notice to appear is going to satisfy the physical presence requirements.

Another mistake that people make is not properly or sufficiently documenting their hardship. The legal standard is exceptional, and is something that the courts take very seriously. Unfortunately, even the fact that any family without a parent or a child would logically be in an extreme amount of suffering if a parent, child, or spouse were deported, it is sometimes not enough. An individual has to prove that they have a qualifying family member who is going to suffer significantly more than an ordinary family member who is going to go through the same kind of proceeding.

An individual will need to submit as much hard evidence as possible. Most often, this includes:

  • Medical records
  • Statements from counselors or teachers
  • Experts that can come to testify to the conditions in an individual’s own home country. This is to explain why it presents extreme hardship to the qualifying relative if they were forced to move away with the individual in question.

Because an individual only gets one change in front of the immigration judge, it is important that they make sure they have all the correct documents together.

Non-Permanent Residents Cancellation of Removal in Virginia