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New Published Decision from the Board of Immigration Appeals

The Board of Immigration Appeals recently issued a published decision that will effect many non-citizens who have been in the United States for many years. The Board’s decision in Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014) held that a non-citizen who is arrested and convicted of illegal entry into the United States pursuant to 8 U.S.C. s 1325, and subsequently leaves the country, may not be eligible for cancellation of removal under INA s 240A(b).

Typically, a non-citizen can obtain a green card if they are in removal proceedings and they have been in the United States for more than 10 years, have no disqualifying criminal convictions, have good moral character, and have a U.S. citizen or lawful permanent resident child, spouse or parent who would suffer exceptional and extremely unusual hardship if they were deported. This is called cancellation of removal. The 10 years in the United States can be stopped, and therefore a non-citizen disqualified from cancellation of removal, if they have departed the United States for a total of six monthy over the 10 years or more than 90 days during any one trip abroad. Typically, a short departure from the U.S. during the 10 year period, so long as it was not under the threat of deportation, will not disqualify someone from cancellation of removal.

The Board’s decision in Velasquez-Cruz changes those typical rules. Ms. Velasquez-Cruz was in the United States for over 15 years when she was arrested shortly after returning illegally to the U.S. after a short trip to Mexico. The U.S. Attorney’s Office decided to prosecute her for illegally entering the United States. She was convicted, but never turned over to U.S. Immigration and Customs Enforcement for removal. Rather, she left the United States after the conviction and then returned shortly thereafter. Ms. Velsquez-Cruz was never formally or informally deported from the U.S.

Before this decision, Ms. Velasquez-Cruz’s departure from the U.S. after her conviction would not have barred her from cancellation, as it was brief and it was not under a removal order or the threat of deportation. However, after this decision, any non-citizen in the United States without lawful status who leaves the U.S. after having been convicted of illegal entry at any time, will likely be disqualified from cancellation of removal under INA s 240A(b).

The experienced immigration and criminal defense attorneys at Shorstein, Lasnetski & Gihon can defend you in both federal criminal court and immigration court. If you are a non-citizen facing criminal prosecution in any court or deportation in immigration court, call us today for a free consultation.