Immigration Answers: A Removal Defense For Some

Each year hundreds of thousands if not millions of person Enter the United States Without Inspection (“EWI”). Thousands of others enter the United States legally with a proper visa only to overstay their period of admission. These two groups comprise the vast majority of the estimated 20,000,000 unlawful aliens in the United States. There are many proposals for a legislative answer for this group of individuals but for the present they are only proposals. The question we are frequently asked is, “what can be done now for the estimated 20,000,000 unlawful aliens in the US”?

There are several options for the foreign national who has lawfully entered the United States and remained longer than the time authorized to become a lawful permanent resident (“Green Card”) of the United States. For the person who has entered the United States EWI, there are fewer options to become a lawful permanent resident in the United States but even the EWI foreign national has options to become a permanent resident either in the United States or by traveling abroad and obtaining the Green Card through a US Consulate. The remainder of this article discusses one of the options available “Cancellation of Removal and Adjustment of Status for Non Permanent Residents” or Non-LPR Cancellation.

The Attorney General may cancel the removal and adjust the status of a non-LPR who is inadmissible or deportable if the foreign national has been physically present in the U.S. for a continuous period of not less than 10 years immediately preceding the date of such application. The continuous physical presence for purposes of cancellation of removal is deemed to end upon initiation of removal proceedings or upon commission of certain criminal acts. The application must be made at a removal hearing, on the proscribed form with the proper filing fee. Note: the continuous physical presence requirement is not applicable to a person who has served at least 24 months in active duty status in the Armed Forces and if separated, received an honorable discharge and was in the U.S. at the time of enlistment or induction.

In addition to the continuous physical presence requirement the applicant must be a person of good moral character for 10 years, has not been convicted of certain offenses; and must establish that removal would result in exceptional and extremely unusual hardship to a United States citizen (USC) or Lawful Permanent Resident ...