June 5, 2012
United States immigration law allows the U.S. Attorney General, through the Executive Office for Immigration Review (EOIR) and the Board of Immigration Appeals (BIA), to grant “cancellation of removal” to people adjudged inadmissible or deportable, if the person meets certain criteria. This can be a powerful tool for people seeking relief from deportation, but the law is not always clear about who may qualify. The U.S. Supreme Court issued a consolidated ruling in two cases in May that clarified the requirements for adult immigrants who resided here as children. The question was whether an immigrant who entered the U.S. as a child could meet the “continuous residence” and “physical presence” requirements by tacking on a parent’s periods of residence and presence, or if the immigrant must meet the requirements on his or her own. The Court held that each immigrant must meet the requirements on his or her own.
Cancellation of removal is a discretionary form of relief available to certain permanent or nonpermanent residents who are otherwise be inadmissible or deportable. The criteria for nonpermanent residents are much more restrictive than those for permanent residents. The Attorney General may cancel the removal of a permanent resident who has been “lawfully admitted for permanent residence” for at least five years, who has been physically present in the U.S. for at least seven years, and who does not have a conviction for an “aggravated felony” as defined by the immigration laws.
A person’s “continuous residence” or “physical presence” period ends, according to the statute, when the government serves the person with a “notice to appear” stating the government’s intention to deport the person. The statute also specifies other events that trigger the end of a period of “continuous residence,” including departure from the country for more than ninety consecutive days, or for a cumulative total of 180 days, unless the person does so in service to the U.S. Armed Forces. A permanent resident’s “continuous residence” may also end upon conviction of certain criminal offenses.
One of the Supreme Court cases, Holder v. Gutierrez, involved a man who entered the U.S. illegally as a child with his family in 1989. His father gained legal permanent residence in 1991, but Gutierrez did not officially become a permanent resident until 2003, after he was an adult. In 2005, Gutierrez was arrested for alleged “alien smuggling.” He claimed cancellation of removal, and the courts went back and forth over whether his father’s permanent resident status should count towards Gutierrez’s total period of legal residence.
In Holder v. Sawyers, Sawyers became a permanent resident in 1995 at the age of fifteen. His mother had lawfully entered the country six years early and been continuously present since then. In 2002, Sawyers was convicted of a drug-related offense. Sawyers asked the court to impute his mother’s period of physical presence in the country to him.
The BIA had held that each person seeking cancellation of removal must independently meet the continuous residence and physical presence requirements. Courts of Appeals have disagreed. The Supreme Court ruled that the BIA’s interpretation of the statute is acceptable.
The United States immigration system is often complicated, confusing, and rife with politics. To schedule a confidential consultation with a skilled and experienced Ohio immigration visa lawyer who can help guide you through the system, contact Gus Shihab online, or call our law firm toll free at 877-479-4USA (4872) today.Web Resources
Opinion (PDF), Holder v. Gutierrez, U.S. Supreme Court, May 21, 2012More Blog Posts
Advance Parole No Longer Considered a “Departure” For Purposes of the Three and Ten Year Bars, Immigration Visa Lawyer Blog, June 4, 2012
FOIA Backlog Hurts Ability of Immigrants to Effectively Defend Against Removal, Immigration Visa Lawyer Blog, May 25, 2012
Photo credit: ‘US Permanent Resident Card 2010-05-11’ by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons.