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Asylum & Cancellation of Removal
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This relief requires a showing by the non-U.S. citizen that he/she is entitled to apply for this relief. This showing requires that he/she meet the statutory elements as stated in the law of Immigration and Naturalization Act (INA) and discretionary factors as decided by the Immigration Judge. What this means is that in order to even apply for this form of relief, one must first meet the specific elements to be eligible to apply for this relief, and once eligibility is determined, it is the applicant’s burden to prove to the Immigration Judge that he/she should be allowed this relief and persuade the Immigration Judge to use his/her discretion and allow the applicant to remain in the United States.
There are two (2) forms of discretionary relief known as Cancellation of Removal. One form of this relief is specific to lawful permanent residents (LPR) and the other form is specific to non-LPRs. Each will be discussed below.
Cancellation of Removal for LPR
If you are a LPR, in order to apply for this form of relief, you must meet the following criteria as stated in section 240A(a) of the INA, which allows the cancellation of removal if the alien:
1. Has been a LPR for not less than 5 years;
2. Has resided continuously in the United States for 7 years after being admitted in any status; and
3. Has not been convicted of any aggravated felony.
In addition to showing that you meet the above statutory elements to apply for Cancellation of Removal, you must also show that you deserve this relief as a matter of discretion. In order for the Immigration Judge to determine whether you deserve to stay in the United States, a hearing is held. This hearing is called the Individual Hearing on the Merits. At this hearing, the Immigration Judge will hear testimony and review the entire application for Cancellation of Removal.
During the hearing and after a thorough review of the application, the Immigration Judge balances both positive and negative factors about you. The Immigration Judge “must balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his or her behalf to determine whether the granting of … relief appears in the best interest of this country.” Matter of C-V-T, Int. Dec. 3342 at 3 (BIA 1998).
The following is a list of positive and negative factors. Generally if you have more positive factors than negative, you will have a strong application for Cancellation of Removal. Thus, you will have a strong presentation to persuade the Immigration Judge to use his/her discretion to allow your application for Cancellation of Removal, and allow you to stay in the United States.
A. Positive Factors:
1. family ties in the U.S.;
2. residence of long duration in this country (particularly when begun at a young age);
3. evidence of hardship to the respondent and family if removal occurs;
4. service in the U.S. Armed Forces;
5. history of steady employment;
6. existence of property or business ties;
7. evidence of value and service to the community;
8. proof of genuine rehabilitation if criminal record exists; and
9. any other evidence of the applicant’s good character.
B. Negative Factors:
1. nature and underlying circumstances of the grounds of removal;
2. presence of additional significant violations of U.S. immigration laws;
3. existence of criminal record and, if so, its nature, recency, and seriousness; and
4. any other evidence of bad character or undesirability.
These balancing factors are just examples, and each case is decided on its own specific facts.
Cancellation of Removal for Non-LPR
If you are a non-LPR, in order to apply for this form of relief, you must meet the following criteria as stated in section 240A(b) of the INA, which allows the cancellation of removal if the alien:
1. can show physical presence in the United States for a continuous period of not less than ten (10) years;
2. can show good moral character during the ten year period;
3. has not been convicted of a crime; and
4. can show that removal from the United States would
result in exceptional and extremely unusual hardship to the alien’s USC
or LPR spouse, parent, or child.
Each of the above elements, have very specific requirements to them, however, the most difficult element to meet, generally, is the exceptional and extremely unusual hardship factor.