Cancellation of Removal for certain Lawful Permanent Residents is authorized by the Immigration and Nationality Act (INA) § 240A(a). It says that anyone with a green card who is placed in deportation proceedings due to criminal activity, can have their removal (deportation) cancelled if they have been in the United States for five years as a green card holder, and seven years in any legal status before they committed the crime in question, and if the crime is not an Aggravated Felony (this includes all sorts of serious offenses, including drug trafficking crimes, but not minor possession crimes). Also, the alien must demonstrate that they warrant such a grant of relief in the discretion of the attorney general. Generally, this requires showing some rehabilitation.
My client sat in jail for two months, even though his criminal case was resolved, whereby he was sentenced only to probation. So the criminal court saw his crime as so minor that they didn’t sentence him to any jail time. But unfortunately, INA § 236(c) requires all aliens to be detained without release pending their removal proceedings if they have been convicted of certain types of crimes (Aggravated Felonies, crimes involving moral turpitude, any drug-related offenses, etc.), including some where the alien is sentenced to no jail time, misdemeanors, and other minor offenses... though that is typically where the offense is somehow related to drugs, including possession of paraphernalia, or very small amounts of drugs.
That means that according to the INA, my client had to sit in jail these two months no matter what the government or the judge thought of his case. In fact, both parties were willing to have only a cursory hearing, and neither party expressed any reservations about approving him for relief. Even so, the law requires him to wait in jail while this is decided. This is an unjust section of law. It should be amended to allowed for release from detention in cases such as this where the alien has a clear probability of obtaining the requested relief, where the crime is non-violent, and non-serious, in that no or little jail time was ordered. Such an amendment, as part of comprehensive immigration reform would be a welcome move in the direction of justice and family unity.
Another troubling part of the puzzle here is demonstrating rehabilitation when you have been placed in deportation proceedings immediately upon release from your criminal confinement. In those cases, it is difficult to show rehabilitation because there hasn’t been any time to show a change in behavior. For other cases (the kind originally envisioned for the prior incarnation of cancellation) where the green card holder is returning to the United States and stopped at the border years after the criminal case had ended, its much easier, because you can show a pattern of behavior over the intervening years where they were rehabilitated.
When that isn’t possible, its important to show the criminal behavior as anomalous behavior, instead of the typical character of the alien. This kind of evidence generally consists of showing years without criminal behavior, involvement with family, community activities (including with religious organizations), and other good behavior over the years. In that way, you can demonstrate that rehabilitation isn’t required, but rather a simple return to the previous years of good behavior. Part of this always has to include an acknowledgement by the alien of the criminal activity, accepting responsibility, and finally demonstrating remorse.
Discretionary Factors
Normally, the type of discretionary factors covered in a request for cancellation are the same as hardship factors for other waivers, etc. That is, showing the hardship to your United States citizen or lawful permanent resident family members if you get deported. Now, in this kind of case there is no standard of hardship required, but that is the kind of evidence you need to present. This can include school records showing your children are doing well in school and their education may be interrupted by the move, or medical records showing your family members have serious medical, physical, psychological, or emotional frailties that will be exacerbated by your departure, etc.
Discretionary decisions are always difficult, though, because there really is no appeal of the decision. If it is discretionary, then unless the judge makes a serious legal error, or conducts the hearing in a constitutionally invalid way, then no appeals body will overturn the decision, or reconsider/reweigh those discretionary factors. For that reason, it is always a precarious proposition to proceed before a judge who may or may not look at the case the same way you do. Its important then to consider all the possible ramifications of the evidence presented, and attempt to cast the family in the best possible light, to avoid needing to argue on appeal.
Cancellation of Removal for green card holders remains an important form of relief, giving those who have been in the United States for a significant period of time a second chance after criminal behavior. Most important of all, though, is that this is a one-time opportunity, as once an alien has been granted cancellation he or she is no longer eligible for further grants of this relief.
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