Despite their right to live and work in the U.S. permanently, lawful permanent resident (LPR) aliens may be removed from the U.S. due to criminal behavior or prohibited conduct. During removal proceedings, LPRs may avoid removal by applying for relief, which include cancellation of removal. Both LPRs and non-LPR aliens may apply for cancellation of removal but cancellation for LPRs has unique advantages not present in non-LPR cancellation.
Under INA 240A(b), a non-LPR alien may apply for cancellation if: (1) he has been physically present in the U.S. for a continuous period of 10 years; (2) has been a person of good moral character; (3) has not been convicted of a disqualifying criminal offense; and (4) whose U.S. Citizen (USC) or LPR spouse, parent or child would suffer exceptional and extremely unusual hardship upon alien’s removal.
Under INA 240A(a), an LPR may apply for cancellation if: (1) he has been an LPR for not less than 5 years; (2) has resided in the U.S. continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. An LPR must also show that he deserves to be granted relief as a matter of discretion by showing that the positive factors in his favor outweigh any negative factors.
Cancellation for non-LPRs is more difficult to establish than cancellation for LPRs because there are plenty of simple criminal offense that would disqualify a non-LPR from relief but only the most serious offenses, which are characterized as aggravated felonies, would disqualify an LPR. Non-LPRs are also required to meet the toughest hardship standard that allows relief only in rare cases. However, LPR cancellation is by no means easy. Let’s examine the requirements for LPR cancellation.
First, the alien must have valid LPR status. If LPR status was obtained by fraud or mistake, the alien does not qualify for LPR cancellation. For example, if LPR status was obtained through a bigamous marriage, the alien would not qualify for LPR cancellation because he was never in any legal sense an LPR even though procedurally he was granted LPR status. In another example, if during adjustment of status, the alien disclosed to USCIS a disqualifying conviction but he was still granted LPR status by mistake, this alien would not qualify for LPR cancellation in the future.
Second, the LPR must show continuous physical presence for 7 years. Under INA 240A(d)(1) any period of continuous physical presence ends: (1) when an alien is served a notice to appear (NTA), which informs an alien that he is in removal proceedings, or (2) when he commits a disqualifying criminal offense. Hence, if an LPR has physical presence of less than 7 years when the NTA was served on him, he would not qualify for LPR cancellation. If an LPR commits a crime involving moral turpitude (CIMT) such as theft before he has completed 7 years of continuous physical presence, he would not qualify for LPR cancellation.
Interestingly, physical presence may be counted from the time of admission in any status. For example, an alien was admitted on a B-2 visa on January 15, 2000. This alien overstayed and fell out of status. On January 15, 2002, he was granted LPR status through adjustment. On February 15, 2007, he was served an NTA. This alien would qualify for LPR cancellation because he has been an LPR for 5 years and he has continuous physical presence for 7 years counted from his B-2 visa admission on January 15, 2000 until the service of the NTA on February 15, 2007, which is the time we stop counting his physical presence.
Some LPRs who fall short of 7 years of physical presence have argued that their parents’ physical presence when these LPRs were minors should be counted. For example, if a parent came in January 15, 2000 but the child came a year later and was served an NTA on February 15, 2007, the Supreme Court held that this child does not have sufficient physical presence because he cannot take credit for his parents’ physical presence.
Lastly, an applicant for LPR cancellation must not have been convicted of an aggravated felony. INA 101(a)(43) defines an aggravated felony to include, among others, murder, rape, sexual abuse of a minor, illicit trafficking of drugs, and illicit trafficking of firearms. It also includes theft, burglary, crimes of violence, perjury and commercial bribery but only if the term of imprisonment is at least 1 year. It also includes fraud and tax evasion if the loss exceeds $10,000.
Aliens tend to think that if somebody they know was granted relief, they should also win relief. But sometimes status makes a difference and this is especially true in cancellation of removal. A non-LPR would be disqualified from cancellation if he was convicted of possession of methamphetamine but an LPR would not. A non-LPR would be disqualified if he was convicted of grand theft but an LPR would be disqualified only if he was sentenced to at least 1 year for the same offense. This may not seem fair but this is one area where the law shows some consideration for LPRs.
