Published June 28, 2018
In their recent ruling in Pereira V. Sessions, the U.S. Supreme Court significantly widened opportunities for certain lawful residents AND undocumented individuals to fight their deportation – also known as removal proceedings. At issue are avenues of relief known as “Cancellation of Removal for Nonpermanent Residents” (undocumented) and “Cancellation of Removal for Lawful Permanent Residents” (green card holders) and the amount of time in the U.S. the foreign national is required to demonstrate in order to qualify for these defenses.
For starters, both undocumented individuals as well as green card holders can be placed in removal proceedings. For undocumented individuals, merely being present in the U.S. without status, working in the U.S. without authorization, overstaying their status is enough of a basis to initiate removal proceedings against them. For lawful permanent residents, a violation of criminal or other laws might lead them to face removal.
But in removal proceedings, a foreign national, whether in lawful status or not, have a variety of defenses available, including “Cancellation of Removal”. To avail of the Cancellation of Removal defense – an undocumented person must demonstrate 1) good moral character, 2) continuous physical presence in the U.S. for 10 years or more and 3) that their forced removal would present “exceptional and extremely unusual” hardships to their U.S. citizen or lawful permanent resident spouse, parent and/or under 21 year old child.
For green card holders (permanent residents), Cancellation of Removal is available when a resident can demonstrate 1) 5 years as a lawful permanent resident and 7 years of continuous presence in the U.S. 2) that they have not been convicted of an “aggravated felony” (as defined under U.S. immigration law) and 3) that in the discretion of the court, the applicant is worthy of being granted relief, i.e. the positive factors about their life in the U.S. (such as family ties, hardships, community involvement, etc) outweigh the negative factors. The latter requirement is much easier to satisfy than the hardship standard for Cancellation of Removal for the undocumented.
With regard to satisfying the “physical presence” requirements under either avenue of relief, the foreign national is subject to a “stop time rule” – where the accumulation of time toward meeting the “physical presence” requirement” comes to a stop the moment Department of Homeland Security files a “Notice to Appear” or “NTA” (the paperwork to initiate removal proceedings) with the Immigration Court. Often, if not most of the time, though, NTA’s filed with the court do not include a particular date and time for the first court date and merely generally state that a notice with these specifics will be sent in the future. That future notice may arrive a month or a year later.
RULING – The Supreme Court stated that the foreign national fighting removal now can accumulate time in the U.S. toward satisfying Cancellation of Removal requirements even after the NTA is filed with the court in circumstances where the NTA did not include a specific court date/time – which means most individuals who may have come close to qualifying for consideration, except for the stop time rule, may have an opportunity for a hearing, or to have completed cases reopened. This ruling potentially opens up the door to tens of thousands, if not hundreds of thousands, of undocumented individuals and green card holders fighting removal proceedings – possibly even those who have been deported – and who might qualify to be considered for cancellation of removal relief under this new method of physical presence.
PUBLISHED June 28, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois