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RELIEF FROM DEPORTATION: CANCELLATION OF REMOVAL
Cancellation of Removal is a discretionary form of
relief that is available to persons who are in Removal
Proceedings (Deportation). Once USCIS has served a formal
Notice to Appear for a removal hearing then this form
of relief may be available. An individual could initiate
the process by turning themselves into USCIS to start
removal proceedings in order to obtain an adjustment
of status. However, this is a very dangerous place
to be without representation.
Cancellation of Removal is available in the following
situations:
Legal Permanent Residents “green card holders” who
face deportation or removal from the United States
based on criminal grounds may be eligible if;
- The applicant has been
lawfully admitted for Permanent
Residency for 5 years or
more ;
- Has resided in the United
States for 7 continuous
years; and
- Has not been convicted
of an aggravated
felony.
Conviction Defined:
101(a)(48)(A) requires a formal judgment of guilt;
or if the judgment of guilt is withheld a Judge or
jury has found the person guilty, the person has entered
a plea of no contest or has admitted sufficient facts
to warrant a finding of guilt and the Judge has ordered
some form of punishment, penalty or restraint on the
persons liberty was imposed.
Aggravated Felony Defined:
8 USC 1101(a)(43)(f) & The
U.S. Sentencing Guidelines 4B1.2(a)(2 defines an aggravated
felony as a crime
of violence involving a term of imprisonment
of at least one year under State or Federal law.
18 USC 16 defines crime of violence using a two prong
test:
(a) involves an element of the use , attempted use or threatened use
of physical force against the person or property of another (assault & robbery)
or;
(b) any offense that is a felony and by its nature involves a substantial
risk that physical force against the person or property of another may be used.
Therefore, a crime of violence may not be an aggravated
felony if the person has not been sentenced to a term
of imprisonment of a year or more.
Non Legal Resident Aliens may be
eligible only if the alien is under deportation or
removal proceedings and if:
- The applicant has resided
in the United States continuously
for a minimum of 10 years
prior to the Bureau of Citizenship and
Immigration Service issuing
a Notice to Appear or the
Order to Show Cause;
- Is of good moral character,
has
not been convicted
of a crime of moral turpitude(CMT);
and.
- Removal would
cause exceptional
and extremely unusual
hardship to the U.S. citizen
or permanent resident
spouse, child,
or parent (not to themselves)
due to any combination
of personal, economic,
socio-cultural and psychological
reasons if returned
to the home country.
Crime of Moral Turpitude(CMT):
CMT can subject one to removal if the crime was committed
within five years after the date of last entry into
the U.S. for which a sentence of a year or more could
have been imposed regardless of what was actually imposed.
There is a Petty Offense Exception for one CMT as long
as the sentence of imprisonment is less than six months
and the offense has a maximum possible sentence of
one year or less.
This is a very dangerous and complex area of immigration
law. Please contact us for more information.
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