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Practice Advisory
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I INTRODUCTION 3, II LEGAL ELEMENTS OF NON LAWFUL PERMANENT RESIDENT CANCELLATION OF REMOVAL 4. A Continuous Physical Presence in the United States for At Least Ten Years 6. 1 T ermination of Continuous Presence 7, 2 Departures That Break Continuous Physical Presence 12. 3 Armed Forces Exception to the Continuous Physical Presence Requirement 20. B No Convictions Under INA 212 a 2 237 a 2 or 237 a 3 20. C Good Moral Character During the Ten Year Period Prior to the Entry of a Final Administrative Decision 24. D Exceptional and Extremely Unusual Hardship to the Applicant s U S Citizen or LPR Spouse Parent or Child 28. 1 U S Citizen or LPR Spouse Parent or Child Qualifying Relatives 28. 2 Exceptional and Extremely Unusual Hardship 31, 3 Merits Favorable Discretion 36. III INELIGIBILITY FACTORS 38, IV RELEVANT COUNTRY CONDITIONS FOR THE TOP FIVE COUNTRIES OF ORIGIN FOR DACA RECIPIENTS 39. A Mexico 40, B El Salvador 41, C Guatemala 43, D Honduras 45.
V CONCLUSION 47, 2 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. I INTRODUCTION, Given the uncertain future of the Deferred Action for Childhood Arrivals DACA program DACA. recipients fear possible removal from the United States 2 Following the Trump Administration s rescission of. the DACA program and Congress s lack of action to protect DACA recipients multiple federal courts have. issued preliminary injunctions staying the Trump Administration s plan to end DACA 3 However since then. seven states opposed to DACA have filed papers in federal court seeking to end the program further raising. the likelihood that the Supreme Court of the United States will eventually decide the issue 4 If the temporary. injunction extending the DACA program is lifted and DACA protection expires DACA recipients who do. not have a prior order of removal could be placed in removal proceedings pursuant to the Immigration and. Nationality Act INA 240 5 Even with the protection of the current injunction DACA recipients convicted. of certain criminal offenses could be detained and placed in removal proceedings 6 In preparation for potential. removal proceedings DACA recipients should assess their eligibility for cancellation of removal for non lawful. permanent residents non LPR cancellation 7, Non LPR cancellation is a form of discretionary relief from removal that provides a path to lawful permanent. residency to certain non citizens placed in removal proceedings on or after April 1 1997 8 Non LPR. cancellation like its predecessor suspension of deportation 9 is meant to benefit undocumented immigrants. 2 The White House Fact Sheet President Donald J Trump Restores Responsibility and the Rule of Law to Immigration Sept 5. 2017 https www whitehouse gov the press office 2017 09 05 president donald j trump restores responsibility and rule law. Memorandum from Elaine C Duke Acting Secretary Department of Homeland Security DHS Memorandum on Rescission of. Deferred Action for Childhood Arrivals DACA Sept 5 2017 https www dhs gov news 2017 09 05 memorandum rescission. 3 See National Immigration Law Center Status of Current DACA Litigation https www nilc org issues daca status current daca. litigation last updated Sept 6 2018, 4 Texas et al v United States of America No 18 00068 S D Tex filed May 1 2018 https www courtlistener com recap gov uscourts. txsd 1501682 gov uscourts txsd 1501682 1 0 pdf, 5 Michael D Shear Julie Hirschfeld Davis Trump Moves to End DACA and Calls on Congress to Act N Y Times Sept 5 2017.
https www nytimes com 2017 09 05 us politics trump daca dreamers immigration html. 6 See CLINIC Bond Related Issues for DACA Recipients Mar 26 2018 https cliniclegal org sites default files Bond for DACA. holders pdf see also USCIS Guidance for the Referral of Cases and Issuance of Notices to Appear NTAs When Processing a Case. Involving Information Submitted by a Deferred Action for Childhood Arrivals DACA Requestor in Connection With a DACA. Request or a DACA Related Benefit Request Past or Pending or Pursuing Termination of DACA June 28 2018 https www. uscis gov sites default files USCIS Laws Memoranda 2018 2018 06 28 PM 602 0161 DACA Notice to Appear pdf. 7 In a national survey of 67 immigrant serving organizations that provide legal services 14 3 percent of those found to be eligible. for DACA were also found to be eligible for some other form of immigration benefit or relief In other words 14 3 percent. of individuals who were found to be eligible for DACA which provides temporary relief from deportation may now be on. the path towards lawful permanent residency Of these 14 3 percent 9 4 percent were found to be prima facie eligible for non. LPR cancellation based on the residency requirement and having a qualifying relative See Tom K Wong et al Paths to Lawful. Immigration Status Results and Implications from the PERSON Survey Volume 2 Number 4 Journal on Migration and Human. Security 287 2014 http jmhs cmsny org index php jmhs article view 37 Practitioners could also assess DACA recipients for. VAWA cancellation of removal which is beyond the scope of this practice advisory. 8 It is important for DACA recipients to know that only the immigration judge IJ has jurisdiction over non LPR cancellation. because unauthorized practitioners of law and even unscrupulous lawyers may try to defraud them by charging money to erroneously. file the application with U S Citizenship and Immigration Services USCIS These unauthorized practitioners commonly call. this attempted immigration benefit the ten year visa or the ten year law Others may recommend filing for asylum because if. the asylum claim is denied the applicant will be placed in removal proceedings which would allow the person to file for non LPR. cancellation However filing for asylum for the purpose of being placed in removal proceedings and pursuing cancellation has ethical. implications See American Immigration Lawyers Association Ethics Practice Advisory Ethical Considerations Related to Affirmatively. Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent. Resident Nov 1 2016 AILA Doc No 16110105 http www aila org infonet. 9 Individuals who were issued an Order to Show Cause prior to April 1 1997 may apply for suspension of deportation per former. INA 244 a Under former INA 244 a an IJ could exercise discretion to grant suspension of deportation to an individual who. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 3. who have deep roots or established affiliation 10 in the United States Likewise DACA was intended to benefit. individuals who came to the United States as children 11 or in other words undocumented immigrants who. have perhaps the deepest roots in the United States Indeed in most cases DACA recipients only have strong. ties to the United States and lack such ties to their country of birth Given the long U S residence of DACA. recipients many of them may qualify to apply for non LPR cancellation of removal if they are placed into. removal proceedings, This practice advisory seeks to assist practitioners working with DACA recipients who could be subject to. INA 240 proceedings in immigration court Section II provides an explanation of the non LPR cancellation. legal elements and application of these elements to the DACA context Section III discusses the grounds. of ineligibility for non LPR cancellation Section IV details country conditions information for the top five. countries of origin for DACA recipients for purposes of assessing non LPR cancellation relief. II LEGAL ELEMENTS OF NON LAWFUL PERMANENT RESIDENT CANCELLATION. OF REMOVAL, Non LPR cancellation allows non citizens12 to obtain lawful permanent residence if they establish the following. before an immigration judge IJ 13, Physical presence in the United States for a continuous period of no less than ten years. Good moral character during the ten year period prior to the entry of a final administrative decision in. No conviction of an offense that would make the applicant inadmissible or deportable under INA. 212 a 2 237 a 2 or 237 a 3, Exceptional and extremely unusual hardship to the applicant s U S citizen or LPR spouse parent or. Merit of a favorable exercise of discretion, An applicant for non LPR cancellation bears the burden of proving all the requisite facts pertinent to.
proved that he or she had both seven years of continuous physical presence in the United States and good moral character during. all that time and also that deportation would cause extreme hardship to the applicant or the applicant s U S citizen or LPR spouse. parent or child Non LPR cancellation increased the relevant time period of continuous residence to ten years eliminated hardship. to oneself as a basis for relief and elevated hardship to one s U S citizen or LPR qualifying relative to exceptional and extremely. unusual hardship See Monica Gomez Note Immigration by Adverse Possession Common Law Amnesty for Long Residing Illegal. Immigrants in the United States 22 Geo Immigr L J 105 121 25 2007. 10 Hiroshi Motomura Americans in Waiting The Lost Story of Immigration and Citizenship in the United States. 80 114 2006, 11 Memorandum from Janet Napolitano Secretary DHS Exercising Prosecutorial Discretion with Respect to Individuals Who Came. to the United States as Children June 15 2012 rescinded https www dhs gov xlibrary assets s1 exercising prosecutorial. discretion individuals who came to us as children pdf. 12 A lawful permanent resident may apply for non LPR cancellation Matter of A M 25 I N Dec 66 74 76 BIA 2009 In Matter. of Koloamatangi 23 I N Dec 548 BIA 2003 the BIA found that the applicant never had LPR status because he had committed. fraud in obtaining his residency however the BIA determined that he could still apply for non LPR cancellation although the. fraud would be a factor in the good moral character assessment. 13 See Immigrant Legal Resource Center Non LPR Cancellation of Removal An Overview of Eligibility for Immigration Practitioners. June 2018 https www ilrc org sites default files resources non lpr cancel remov 20180606 pdf. 4 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. eligibility 14 The IJ will consider any credible evidence relevant to the application 15 The IJ has discretion to. determine what evidence is credible and the weight to give the evidence 16. Respondents wishing to apply for non LPR cancellation must complete and submit Form EOIR 42B to the. IJ 17 Note that if an applicant for non LPR cancellation submits other applications for relief from removal the IJ. will adjudicate concurrently the other applications for relief and if the applicant is granted asylum or adjustment. of status the IJ is required to deny cancellation as a matter of discretion 18 In practice IJs adjudicate asylum and. adjustment of status applications before the non LPR cancellation application For example if an applicant. submits a non LPR cancellation application and application for asylum under the INA the IJ will consider the. application for asylum first Only if the IJ denies the application for asylum under the INA will the IJ adjudicate. the non LPR cancellation application While the non LPR cancellation application is pending the applicant. can apply for an employment authorization document EAD based on the pending application 19. 4 000 Annual Cap The date the order granting non LPR cancellation becomes final is the date on which the. individual is recorded as having received lawful permanent residence in the United States The date the IJ. records the individual as receiving lawful permanent residence will depend on the availability of an immigrant. visa Currently a grant of non LPR cancellation is subject to an annual cap which is counted during the U S. government fiscal year Per INA 240A e 1 only 4 000 immigrant visas can be granted through non LPR. cancellation during each fiscal year Note that when Congress enacted this statutory provision as part of the. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 IIRIRA the number of IJs was. significantly lower than the current number 20 This low number of visas applicable to all IJs combined with. the higher demand for these visas has led to long backlogs As of November 2016 the Executive Office for. Immigration Review EOIR reported that 40 895 cases were awaiting decision 21 With the cap of 4 000 leading. to a backlog EOIR issued IJs guidelines and procedures for issuing denials based on statutory ineligibility and. reserving decisions 22, A recent EOIR Operating Policies and Procedures Memorandum and amended regulation states that IJs are. not required to reserve decision if the application is denied or pretermitted for any reason 23 The amended. 14 INA 240 c 4 8 CFR 1240 8 d, 15 INA 240A b 2 D, 17 EOIR Form EOIR 42B https www justice gov sites default files pages attachments 2016 10 20 eoir42b pdf. 18 8 CFR 1240 21 c 2, 19 8 CFR 274a 12 c, 20 There were 69 IJs in 1990 and 86 IJs in 1994 Executive Office for Immigration Review Board of Immigration Appeals. Streamlining 64 Fed Reg 56135 Oct 18 1999 https www uscis gov ilink docView FR HTML FR 0 0 0 1 0 0 0 54070 0. 0 0 60707 0 0 0 61450 html In 1998 there were 202 IJs Transactional Records Access Clearinghouse TRAC Immigration. Non LPR cancellation is a form of discretionary relief from removal that provides a path to lawful permanent residency to certain non citizens placed in removal proceedings on or after April 1 1997 8 Non LPR cancellation like its predecessor suspension of deportation 9 is meant to benefit undocumented immigrants

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