Cancellation of Removal for Lawful Permanent Residents
Although you may be a lawful permanent resident, that is, you have been issued a “green card”, you may still be subject to deportation for commission of certain crimes. However, through cancellation of removal for lawful permanent residents, you may be permitted to remain in the United States if a waiver is granted by an Immigration Judge.
Three Main Requirements for Cancellation of Removal for Lawful Permanent Residents
There are three main requirements to qualify for the waiver under cancellation of removal for permanent residents. First, the non-citizen must have been lawfully admitted for permanent residence for at least 5 years; Secondly, there must be proof of residence in the United States continuously for 7 years after having been admitted; and Thirdly, the resident must not have been convicted of an aggravated felony.
If these three requirements are met, granting the waiver becomes a matter of discretion for the immigration judge. In other words, the judge will review the type and nature of the crimes and weigh positive and negative factors, or equities, in order to determine if a person should be given a second chance to remain in the United States.
It is important to note that for immigration purposes, a “no contest” plea and most post-trial diversion programs are considered a conviction.
Presenting a Case for Cancellation of Removal for Lawful Permanent Residents
When the permanent resident presents their case, they should show remorse for the criminal conduct, and that efforts have been made toward rehabilitation. The immigration judge will consider such equities as payment of federal income taxes and child support, ties to the community such as being involved in charitable organizations, long term residence, evidence surrounding the criminal act and the period of time that has elapsed since the criminal act(s).
Take for example a lawful permanent resident who is convicted of possession of less than 20 grams of marijuana. If the person has left the country and is detained upon returning, the person may be considered an “arriving alien”, and as such, would be under mandatory detention. In other words, although the person is a lawful permanent resident, this type of crime, as well as others, could present a situation where detention is required until and unless the resident applies for relief such as cancellation of removal for lawful permanent residents allowing them to remain in the US.
Although drug charges are taken seriously by immigration officials, the law recognizes that in some situations a person should not be deported. The court wants to know what kind of person the permanent resident is. Was this a one-time occurrence, or is it likely that the person will commit more crimes? Where does the person’s family live, and if they are in the US, do they have legal status?
Based on these factors, the immigration judge may grant cancellation of removal for lawful permanent residents and allow them to remain in the US.