If your client is a legal permanent resident (LPR) (i.e., has a ‘green card’), then this may help you find out if your client would be eligible for
“Cancellation of Removal for Certain Permanent Residents,” if found to be removable.
Despite being deportable under the criminal grounds, qualifying permanent residents who are put into removal proceedings are eligible for the general “cancellation of removal” waiver, and if is granted they preserve their legal resident status. However, conviction of any aggravated felony is a bar to cancellation.
This waiver is only available from the Immigration Judge, and thus must be applied for while in removal proceedings. This means there is a good chance the person will be detained during the proceeding.318 The waiver is discretionary, and can be denied even though the person was eligible to apply.
There are three main statutory requirements, the legal permanent resident must:
(1)ha[ve] been an alien lawfully admitted for permanent residence for not
less than 5 years, 319
(2)ha[ve] resided in the United States continuously for 7 years after having been admitted in any status,320 and
(3)ha[ve] not been convicted of any aggravated felony.321
Insufficient residence time in the U.S., or a conviction for an aggravated felony at any time, are the most common bars to this waiver, but there are some others.322 (If your
client originally got her papers through “suspension of deportation;” or has previously received cancellation323 or the pre- 4-1-1997 waiver known as “212(c)” she is ineligible for cancellation now.)
318
Most— but not all— immigrants charged as removable under the criminal grounds will also be subject to mandatory detention. See 8 USC 1226(c)(1); INA 236(c)(1).
319
8 U.S.C. 1229b(a)(1); INA 240A(a)(1).
320
8 U.S.C. 1229b(a)(2); INA 240A(a)(2).
321
8 U.S.C. 1229b(a)(3); INA 240A(a)(1).
322
8 U.S.C. 1229b(c); INA 240A(c).
323
That includes the waiver discussed here, and two other forms of cancellation mainly designed to provide relief to non-citizens without criminal convictions. 8 U.S.C. 1229b(b)(1&2); INA 240A(b)(1&2).
Part II, C: Quick Guide to Cancellation or Removal of LPR’s 139
Be aware that the 7-year continuous residence requirement is subject to a peculiar additional requirement—the ‘stop-time rule’.324 The seven years begin to run from the date of lawful admission “in any status.” (Your client could have come in as a student or visitor and then gotten her residency, and that original admission should count). It ends “when the alien is served a notice to appear” that begins removal proceedings, or when the alien has committed a criminal offense referred to in the criminal grounds of
inadmissibility, that makes her removable. This means that, even though you may have been in the US after a legal admission for more than 7 years, commission of some crimes will stop the 7-year clock (e.g., CIMTs) but others (e.g., firearms; DV offenses) will not. 325
For example: an offense that causes deportability only under the firearms or DV ground does not “stop the clock” for purposes of acquiring the seven years residence required for cancellation. (However, a firearms or DV offense that also is a crime involving moral turpitude, such as assault with a firearm, would stop the clock if the person became inadmissible or deportable under the moral turpitude ground.)
If you are a WDA member and are trying to preserve eligibility for cancellation for an LPR client, who you think is or is going to become deportable despite your best efforts, please feel free to contact the WDA Immigration Project to help figure this out.
Finally, aside from needing to be statutorily eligible, the cancellation of removal eligibility is a discretionary waiver. The seriousness of the offense is weighed against the
immigrant “respondent’s” positive factors, or equities. As the offense becomes more serious, greater countervailing equities may be needed to balance the seriousness of the adverse factors. Rehabilitation, including expression of remorse for criminal conduct, is among the most important of these equities. Other equities include long-term residence in the U.S., family and community ties, payment of child support, recentness of the offense and other criminal history, health problems, evidence of psychological or economic hardship, and many others. Your client will have to testify and can expect to be put under a microscope. Documents that cannot be used to establish deportability, such as police reports, can still be examined in the discretionary or “relief” phase.
******
INA 240A, 8 U.S.C. 1229b, Cancellation of Removal; Adjustment of Status (a) Cancellation of Removal for Certain Permanent Residents
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien:
324
8 USC §1229b(d); INA §240A(d). The continuous residence requirement is also waived for an LPR who served 24 months on active duty in the armed forces and was honorably separated INA §240A(d)(3), 8 USC §1229b(d)(3).
325
See 8 USC §1229b(d); INA §240A(d). That section provides that a clock-stopping offense must be one that is referred to in 8 USC §1182(a)(2); INA §212(a)(2). Because that section does not include a firearms offense, such an offense does not stop the clock. Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000).
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony. …
(c) Aliens Ineligible for Relief
(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) or who has been granted relief under section 212(c), as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
(d) Special Rules Relating to Continuous Residence or Physical Presence (1) Termination of Continuous Period
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end:
(A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a), or
(B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.
(3) Continuity Not Required Because of Honorable Service in Armed Forces and Presence upon Entry into Service
The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who: (A) has served for a minimum period of 24 months in an active-duty status in
the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and
Appendix A: Expanded Immigration Questionnaire 141
Appendix A
WDA’s Immigration Project - Intake Questionnaire
This information is confidential and protected by attorney-client privilege.For technical assistance, please provide the following information to Jonathan Moore by email or telephone at:
email: [email protected]
telephone: (206) 726-3332
Information About You
Your 2ame: Date of Inquiry:
Relationship to 2oncitizen Defendant: (e.g. defense attorney):
Agency or Firm County
Telephone Email address
Information About the 2oncitizen Defendant
1. Client’s country of origin ____________________________.
2. Client’s current immigration status _______________________________. 2OTE: some possibilities are: Refugee/Asylee; Undocumented; Lawful Permanent Resident (LPR) (greencard holder).
3. If client has lawful status, how and when did s/he get it? (E.g. Client entered the U.S. in 1981 as a refugee from Cambodia; client got greedcard through her U.S. citizen spouse in 1993; client entered on a toursist visa.)
3. Client’s current charge and any offers.
4. Client’s criminal history. Include convictions, sentence (imposed and suspended) and juvenile history.
5. If possible list client’s immediate relatives (spouse, parent(s) and/or child(ren)) who are U.S. citizens or lawful permanent residents (greencard holders).
Immigration Questionnaire - Expanded Version
For all non-citizen defendants
Purpose: To obtain the facts necessary for an immigration expert to determine current immigration status, possible immigration relief, and immigration consequences of a conviction and.
Documents: Photocopy any immigration documents/passport.
Criminal History: Rap sheets and possible current plea-bargain offenses needed before calling.
Note: While completing this questionnaire, on a separate sheet of paper create one chronology showing dates of criminal acts and convictions as well as the
immigration events discussed in the questionnaire.
_____________________________ ________________ YES NO
Client's Name Date of Interview Immigration Hold
___________________________ ( )____________ ______________
Client's Immigration Lawyer Telephone Number Client’s DOB
1. Entry: Date first entered U.S.? ________________ Visa Type: _______________ Significant departures: Date: ___________________ Length: _______________
Purpose: ______________________________________ Date last entered U.S.? _____________ Visa Type: _______________
Relief: Undocumented persons here for 10 yrs with citizen or LPR family might be eligible for non-LPR cancellation. See CCLI § 11.3.
2. Immigration Status: Lawful permanent resident? YES NO If so, date client obtained green card? ______________
Relief: Consider cancellation of removal for long-time residents; See CCLI § 11.10.
Other special immigration status - circle any that apply:
(refugee) (asylee) (temp. resident) (work permit) (TPS) (Family Unity) (ABC) (undocumented)
Visa - type :________________ Date obtained? _____________
Did anyone ever file a visa petition for you? YES NO
Appendix A: Expanded Immigration Questionnaire 143 Type of visa petition: __________________ Was it granted? YES NO
3. Prior Deportations: Ever been deported or gone before an immigration judge? YES NO Date? ________________ Reason? ___________________________ Do you have an immigration court date pending? YES NO
Date? _______________________________ Reason?_________________________________
4. Prior Immigration Relief: Ever before received a waiver of deportability [§ 212(c) relief or cancellation of removal] or suspension of deportation?
YES NO Which: ______________ Date: ____________
5. Relatives with Status: Do you have a U.S. citizen (parent), (spouse),
(childs’ DOB(s) _________________________________), (brother) or (sister)?
Do you have a lawful permanent resident (spouse) or (parent)? YES NO
Relief: Consider family immigration, see CCLI § 11.13.
6. Employment: Would your employer help you immigrate (only a potential benefit to professionals)? YES NO
Occupation:__________________________
Employer's name/number:____________________________________________
7. Possible Unknown U.S. Citizenship:
Were your or your spouse's parent or grandparent born in the U.S. or granted U.S. citizenship? YES NO
Were you a permanent resident under the age of 18 when a parent naturalized to U.S. citizenship? YES NO
8. Have you been abused by your spouse or parents? YES NO Relief: Consider VAWA application, see CCLI § 11.19.
9. In what country were you born? _____________________________
Would you have any fear about returning? YES NO
Why? __________________________________________________________
Relief: Consider asylum/withholding, or if recent civil war or natural disaster, see if entire country has been designated for “TPS.” See CCLI §§ 11.4-5, 7.
10. Are you a victim of serious crime or alien trafficking and helpful in investigation or prosecution of the offense? YES NO
Appendix B: Immigration Safe Deferred Adjudication Agreements 145
Appendix B
Immigration Safe Deferred Adjudication Agreements
The immigration statute contains a definition at 8 U.S.C. 1101(a)()(A), which states in relevant part:
The term conviction means, with respect to an alien…if adjudication of guilt has been withheld where a judge or jury has found the alien guilty or the alienhas entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt….
The crux of the issue here is what constitutes a conviction for immigration purposes. In short, even though the deferral scheme may allow for a dismissal under Washington state law of the offense(s), any deferral scheme which requires the defendant, at the time of the deferral, to agree to admissibility of the police report, and/or stipulate to facts and/or enter a guilty plea puts a non-citizen at risk that the deferral scheme will be a conviction for immigration purposes regardless of whether the case is subsequently dismissed by the Court after defendant complies with the condition(s).
In the case Matter of Roldan, Int. Dec. 3377 (BIA 1999), the Board of Immigration Appeals interpreted the statutory language extremely broadly such that any admission of guilt will constitute a conviction in perpetuity for immigration purposes. The recent Ninth Circuit decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) tempers this broad interpretation only for first-time simple possession and lesser drug offenses. Meanwhile, as a practical matter, the DHS treats virtually all diversionary schemes as convictions for immigration purposes where, at a minimum, the police report was admitted into evidence at the time of the deferral and/or the defendant stipulated to facts.
As an alternative, non-citizen defendants could agree to a deferral scheme that was structured as follows:
Rather than admission of the police report at the time of the deferral, non-citizens would agree to waive their right to object and/or contest ANY evidence presented at any subsequent violation/revocation hearing and agree that the judge will review the evidence presented at that time (which would be the police report) and make a decision as to her/his guilt based solely on that evidence.
Thus, it would be understood at the time that the deferral scheme is agreed upon by the parties, that the prosecutor would present the police report at a subsequent
violation/revocation hearing if the defendant does not comply with conditions. However, if the defendant complies with the conditions, the case is dismissed without any
admissions by the defendant and the police report will not have been entered into evidence for purposes of determining guilt. This will (hopefully) avoid the offense being deemed a conviction for immigration purposes.
Alternative Language for Pre-Trial Diversion
Agreements/SOCs
[NOTE: If boilerplate forms are used, it is necessary to cross-out/eliminate language referencing admissions or stipulations of guilt/police reports/facts and substitute in the following language.]
I understand that I have a right to contest and object to evidence presented against me. I give up the right to contest and object to any evidence presented against me as to my guilt or innocence regarding the underlying charge at any future hearings if I fail to comply with the conditions of this agreement. I also understand that I have the right to present evidence on my own behalf. I give up the right to present evidence on my own behalf as to my guilt or innocence regarding the underlying charge.
I understand that if I do not comply with the conditions of this agreement, evidence will be presented against me at a future hearing and I understand that the judge will read and review that evidence in determining my guilt or innocence.
Appendix C: Additional Resources 147
Appendix C
Additional Resources
In addition to the resources provided by WDA’s Immigration Project, the following sources also provide information concerning the immigration consequences of crimes.