A criminal conviction can make you deportable. It doesn’t matter how long you’ve been in the United States. It doesn’t matter how good a person you are. It doesn’t matter if you have never been to the country of which you are a citizen. The law is cut and dry when it comes to whether you are deportable. If you have been convicted of certain crimes, you are deportable. But…there is good news. Whether you are deportable is only the first part of the analysis. Once an immigration judge determines that you are deportable, he or she must next determine whether you are eligible for any forms of relief from deportation. This is where your lack of prior criminal record, how good of a person you are and other factors may come into play. However, you must meet certain eligibility criteria in order to be eligible for each different form of relief. Today, I want to focus on one particular, and often used, form of relief: Cancellation of Removal.
What is Cancellation of Removal?
Cancellation of Removal is a form of relief from deportation. Once the judge has determined that you are deportable, the judge can cancel that removal if you qualify. It basically wipes the slate clean and you are able to keep your greencard, or you may be able to obtain a greencard, even if you entered without any documents. The bad news is that for several of the requirements, you either are or you are not eligible, and there may be nothing you can do to become eligible if you don’t qualify.
What are the requirements for Cancellation of Removal for Greencard holders?
If you are a lawful permanent resident with a green card, you must:
- have been lawfully admitted for permanent residence (greencard) for 5 years
- have continuously resided in the United States for seven (7) years
- have not been convicted of an Aggravated Felony
- warrant a favorable exercise of discretion.
In order to determine whether you warrant a favorable exercise of discretion, the Immigration Judge will look to determine whether you have substantial ties in the United States, how long you’ve resided in the United States, whether your deportation would present a hardship on your family and to what extent, your employment history, your military service (if any), property or business ownership, evidence of rehabilitation if you’ve been convicted of a crime, good character, facts underlying why you are deportable, prior immigration violations, prior criminal record, and more.
What are the requirements for Cancellation of Removal if I don’t have a greencard?
Unfortunately, it is much more difficult to qualify for Cancellation of Removal if you don’t have a greencard, however, many people do qualify. And you can end up in a better position after being placed in deportation than you were before. This is because, if you were here without any documents and you are placed in deportation proceedings and the judge grants you cancellation of removal, you will be able to obtain a greencard.
If you are not a lawful permanent resident, you must:
- be physically present in the United States for a continuous 10 years
- have “good moral character” for 10 years
- not have been convicted of certain criminal offenses
- prove exceptional and extremely unusual hardship to your United States Citizen or Lawful Permanent Resident spouse, parent or child if you were deported.
Who is not eligible for Cancellation of Removal?
In addition to those who do not meet the above requirements, the following people are not eligible for cancellation of removal:
- Those subject to the J visa 2 year foreign residency requirement
- Those inadmissible or deportable for security reasons
- Those who have persecuted others
- People granted Cancellation of Removal or 212(c) relief in the past
What if I’ve been convicted of a crime or crimes?
Any criminal conviction will have negative immigration consequences, but it will not necessarily result in denial of cancellation of removal, although it may. If you have a greencard and the basis for your removal is a criminal conviction, you may be able to file for cancellation of removal. However, you would have to establish to the judge that you have been rehabilitated and warrant a favorable exercise of discretion. If you do not have a greencard, most criminal convictions will prevent you from obtaining cancellation of removal.
Also, if you have a greencard and you committed a specific offense within 7 years of continuous residence, you would not be eligible for cancellation of removal. If you do not have a greencard and committed a specific offense within 10 years of having physical presence in the United States, then you are not eligible for cancellation of removal. Also, if you do not have a greencard and have been convicted of specific offenses at any time, you would not be eligible for cancellation of removal.
How do I get Cancellation of Removal?
Once you are in deportation proceedings, you must file an application to request cancellation of removal if you are eligible. With that application, you must file your evidence in support of the application. If you are eligible, the immigration judge will set your case for an individual hearing. At the individual hearing, you and other witnesses would testify in support of your application. The government will put on evidence in support of denying your application. Once the immigration judge has heard all of the evidence, he or she will either grant cancellation or deny it. If the immigration judge denies your cancellation of removal application, you can appeal to the Board of Immigration Appeals.
If you think you are eligible for cancellation of removal, you should consult with an experienced immigration attorney to discuss your specific facts. Cancellation of Removal cases are complex and typically include hundreds to thousands of pages of documents and several hours of evidence and testimony.
Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon. The firm focuses on criminal defense, immigration and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense. Mr. Lasnetski is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter and has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.