Cancellation of Removal for Non-Permanent Residents

Apr 27, 2015 | Crimes

As a Miami immigration lawyer, I have represented foreign-born clients who have been living in the United States without legal status for some time, and who have been placed in deportation (removal) proceedings. Being placed in deportation proceedings is obviously a stressful scenario for the immigrant, and for his/her family. If the scenario described above applies to you, all may not be lost. Below are some frequently asked questions about the cancellation of removal process.

What do I need in order to qualify for cancellation of removal? 
If you are not a lawful permanent resident and you meet the requirements outlined below you might be eligible to apply for Non Legal Permanent Resident (LPR) cancellation of removal. You must demonstrate to the immigration authorities that:

  • You have lived in the United States for 10 years or more;
  • You can show that you have “good moral character”
  • You have a spouse, parent or child (under age 21) who is legal permanent residents or U.S. citizen; and
  • You can show that a member of your family will suffer “exceptional” and “extremely unusual” hardship if you are removed from the United States. Hardship to yourself does not count.

If I meet all the basic requirements above, am I guaranteed to win cancellation of removal?
No.  Applications for cancellation for removal are discretionary. In fact, unless your attorney tells you so, you should never assume that anything is “automatic” or “guaranteed” when it comes to immigration applications. Each application is considered on a case-by-case basis. If you have any questions, do not guess – it is best if you consult with a Miami immigration lawyer to discuss your options.

How do I show that I have been living in the U.S. continuously for 10 years?
The key phrase here is “continuous physical presence.” You need to demonstrate to the U.S. government that you have been continuously physically residing in the U.S. ten years immediately before the date of your application for cancellation of removal.

What kind of documents do I need to demonstrate that I have been physically living in the U.S. for the past 10 years?
If you have been living in the U.S. for the past 10 years, there is a good chance that you would have had the following to offer as evidence of continuous residence:

– Utility bills
– Medical records
– Payroll stubs
– Tax returns
– School records
– Social Security records
– Bank statements

If you have family or close friends who can provide written testimony that you have been living the U.S. continuously for the past 10 years, this can also be included to bolster your application. However, it is still very important for you to maintain and proffer meticulous records. Again, if you have any questions at all, ask your Miami immigration attorney.

What does it mean to have “good moral character?”
The question of which applicant has “good moral character” is better defined by what “good moral character” is not under the eyes of the immigration authorities. Under immigration statue, you do not have “good moral character” if you are:

  • a habitual drunkard (or an addict);
  • a prostitute (or pimp) or drug trafficker
  • a person who makes most of their income from illegal gambling
  • a person who has given false testimony to get an immigration benefit
  • convicted of an aggravated felony
  • a terrorist or torturer, or someone who has belonged to an organization condoning those acts
  • a person who has made a false claim to citizenship or voted illegally
  • a person who has failed to support dependents
  • a person who has committed adultery
  • a person who has committed polygamy
  • a person who has a controlled substance violation
  • a person who has been incarcerated for 180 days or more

Note: Even if none of the above apply to you, it does not mean that you have adequately demonstrated “good moral character.” It just means that you probably do not have any of the conditional bars to “good moral character.”

Who counts as a “member of the family” who will suffer “exceptional and extremely unusual hardship?”
The applicant must have a relative who is his or her “spouse, parent, or child” and “is a citizen of the U.S. or an alien lawfully admitted for permanent residence.” You must also prove that said relative would suffer “exceptional” and “extremely unusual hardship.” How do you demonstrate that? Again, meticulous documentation is key. Your Miami immigration lawyer will be best equipped to provide you with guidance on the kind of documentation that he/she will need for the “exceptional and extremely unusual hardship” requirement.

If you would like more information on cancellation of removal, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com .