Permanent Resident Aliens Eligible for Cancellation of Removal:

You may be eligible to have your removal canceled under section 240A(a) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:

A. You have been a permanent resident for at least five (5) years;

B. Prior to service of the Notice to Appear, or prior to committing a criminal or related offense referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing a security or related offense referred to in section 237(a)(4) of the INA;

– you have at least seven (7)years continuous residence in the United States after having been lawfully admitted in any status; and

C. You have not been convicted of an aggravated felony.

NOTE: If you have served on active duty in the Armed Forces of the United States for at least 24 months, you do not have to meet the requirements of continuous residence in the United States. You must, however, have been in the United States when you entered the Armed Forces. If you are no longer in the Armed Forces, you must have been separated under honorable conditions.

History of Cancellation of Removal for Permanent Resident Alien

The IIRIRA introduced a new cancellation of removal section in response to many congressional concerns about the former INA 212(c).  Section 240A(a), the new cancellation of removal law for permanent resident, does not mention anything about domicile, as dealt with in the previous Section 212(c) relief in immigration court.  The alien must now have at least five years standing as a lawful permanent resident to qualify for cancellation of removal in immigration court, and in addition, seven (7) years of continuous residence in the United States as an added requirement.

A permanent resident alien is no longer required to relate his status as a lawful permanent resident to his status as a domiciliary.  Although it was arguable under former Section 212(c) that a lawful permanent resident of less than 5 years standing should be eligible for consideration for cancellation of removal as long as he had five years of domicile, the new section 240A(a)(1) lays that argument to rest by clearly requiring five years of lawful permanent residence.

Permanent resident status obtained by fraud

Problems persist where the alien resident obtained the green card by fraud.  the alien in In re Koloamatangi thought that he could retain his status as a permanent resident despite his fraud, on the ground that his status could be terminated only upon entry of a final administrative order.  His argument was not successful because the rule regarding termination of lawful permanent resident status assumes that the permanent resident status was obtained lawfully.  It did not, therefore, apply to permanent residence which as obtained by fraud.  Since an alien must have at least five years’ standing as a lawful permanent resident, he must comply with the substantive requirements for admission and not merely the procedural niceties.  Once an alien is ineligible for admission, that makes his status unlawful from the beginning, and he cannot therefore qualify for any period of lawful residence to satisfy the statute.  Thus, residence obtained by fraud will not satisfy the statutory requirement.

7 Year Residence Requirement for Cancellation of Removal under 240A(a)

Another Requirement for cancellation of removal is that a lawful permanent resident must reside continuously in the United States for seven years after having been admitted in any status.  the term “residence” means the alien’s actual dwelling place in fact, without regard to the alien’s intent.  Therefore, an alien who is admitted to the United States as a non-immigrant starts his period of residence at that point and does not interrupt it even if he subsequently falls out of status.  The alien’s residence follows the alien’s admission, and that admission ensues from the alien’s lawful entry . . . after inspection and authorization by an immigration officer.”  The statute does not, however, require that the residence must continue to be lawful once the alien has been admitted.

No Conviction for Aggravated Felony

An alien is not eligible for relief under Section 240A(a) if he has been convicted of an aggravated felony.  Although the term “aggravated felony” is amply defined in section 101(c)(43) of the Immigration & Nationality Act, some of the definitions have led to disagreements about whether certain offenses are covered.  One offense that has received critical attention is a crime of violence for which the term of imprisonment is at least one year.

Section 101(a)(43) refers to a crime of violence as defined in 18 U.S.c. Section 16, and so, for the crime to be one of violence and thus be an aggravated felony, it must be a crime that falls within the definition under the statute.  The challenge lies in applying the definition to a state criminal statute to determine whether the alien has committed an aggravated felony.  A good example of the problem can be found in Flores v. Ashcroft, where the alien pleaded guilty to a misdemeanor battery under an Indiana statute for causing bodily injury to another person by intentionally touching that person in a rude, insolent or angry manner.  The court found that there was no crime of violence here because the local statute did not make intent to injury an element of the offense.  The statute required an intent to touch, but not an intent to injury, in order for a person to be guilty of the offense.  Moreover, since the conviction was for a misdemeanor, physical force had to be shown as an element of the offense under section 16(a) for the alien’s offense to be categorized as a crime of violence.

This did not settle the matter, however.  The court still had to answer the question whether the alien mere touching constituted the use of physical force so that the alien’s conviction could be recognized as being a crime of violence under the federal definition.  The legal difficulty here in immigration law is that it is impossible to touch someone without applying some force, but it is still questionable whether the force would be enough to constitute “physical force.”  The Flores court supported a distinction between violent and nonviolent offenses.  It observed that the word “force” must have a meaning in the legal community that differs from its meaning in the physics community.  Thus, it was not the mere exertion of energy that brought the alien’s offense within the statute.  The force contemplated there is violent in nature, and thus likely to cause injury.  It was necessary, therefore, to distinguish between violent and nonviolent offenses; if not, physical force against a person would end up on a parallel with physical contact with a person, and the statute contemplated a difference between the two.

As a result, one must concentrate on the elements of a crime in order to determine whether the offense can be categorized as a crime of violence under 18 U.S.C. Section 16(a).  In the case of a misdemeanor, it is Section 16(a) that matters, and the only relevant element there is “the use, attempted use or threatened use of physical force against the person or property of another.”  If physical force is not part of the equation, then there is no crime of violence even if injury occurs as a result of the alien’s action.

There is a tendency in some of these cases for the courts to confuse the use of physical force with the causation of injury.  Simply because Section 16(a) imposes the use of physical force as an element of the offense does not mean that every event that results in harm to someone is such a crime of violence.  The Federal law requires the showing of the use of physical violence , and if the offense was a misdemeanor under state law, there may be nothing linking the offense to Section 16(a)’s requirements that the use of physical force must somehow be involved.

Appeal Immigration Judge’s Decision

An immigration judge’s decision to deny the application for cancellation of removal may be appealed to the Board of Immigration Appeals, or to the appropriate Federal District court or even the Federal Circuit Appellate Courts.  Generally, appeals must be filed within small window of time after the application is denied by the immigration judge.  Depending on the type of appeal, a new decision may be several months later.

Even if you win a judgment in your favor, the DHS attorney may also decide to appeal the judge’s decision to the higher courts.

 

Immigration Attorney Assistance with Cancellation of Removal

To retain my office to represent you in immigration court for cancellation of removal, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney. Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week. Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California. Free immigration consultation and advice within 24 hours guaranteed.