CASE: Cancellation of Removal for Permanent Residents
CLIENT: Guatemalan (Green card holder)
LOCATION: El Paso Immigration Court in Texas
Our client came to the United States in 1987 when she was a child. Through INA Section 245i, she got her green card in 2001. She has been in the US ever since. She has seven U.S. Citizen children and most of her immediate family members are either U.S. Citizen or green card holders.
Unfortunately she was convicted of aiding and abetting someone’s illegal entry in early 2013. Because of this conviction, she was inadmissible and was placed in removal proceedings. In late March of this year, our client contacted our office for legal representation. We were retained on April 1, 2013. The case at the onset was tough because her conviction may constitute an aggravated felony; however, after the careful review, her conviction did not rise to the level of aggravated felony, and so it was not alleged on her Notice to Appear. This was critical and made her eligible to apply for Cancellation of Removal.
Once retained, we represented our client before the El Paso Immigration Court at her initial master calendar hearing on July 8, 2013. Attorney Sung Hee (Glen) Yu represented her at the hearing and sought cancellation of removal relief for permanent residents.
Under INA Section 240A(a), for a permanent resident to be eligible for Cancellation of Removal, the alien must prove that s/he:
• Has been an LPR (green card holder) for at least five years;
• Has resided in the United States continuously for seven years after having been admitted in any status;
• Has not been convicted of an aggravated felony; and
• Merits a favorable exercise of discretion.
The criteria for favorable exercise of discretion was explained in Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The BIA in C-V-T stated that the factors that the immigration judge must consider when deciding whether to grant cancellation of removal to a lawful permanent resident are as follows:
The positive factors are:
- Family ties in the United States, particularly ties to lawful permanent residents or U.S. citizens;
- Residence of long duration in the U.S. (particularly when the inception of residence occurred at a young age);
- Evidence of hardship to the Respondent and his family if deportation occurs;
- Service in the U.S. armed forces;
- A history of employment;
- Existence of property or business ties;
- Evidence of value and service to the community;
- Proof of genuine rehabilitation if a criminal record exists;
- Other evidence attesting to a Respondent’s good character.
Adverse factors include:
- Nature and underlying circumstances of the grounds of removal;
- The presence of additional significant violations of the Immigration Laws;
- The nature, recency, and seriousness of criminal records; and
- The presence of other evidence has been indicative of a respondent’s bad character or undesirability as a permanent resident of the U.S.
Generally, the immigration judge must weigh the positive factors against the negative factors in exercising her discretion.
After the Master Calendar Hearing, the Court scheduled the individual hearing date on December 11, 2013.
Our firm worked with our client and her friends and family members for the application and its supplemental documents. We contacted her family members in other states for supporting documents and letters of support.
Our firm eventually was able to gather supporting documents and prepared supplemental evidence with multiple exhibits, and arranged them pursuant to the specific elements of Cancellation of Removal eligibility.
In preparing our client for the Individual Hearing, Attorney Yu talked to our client over conference calls several hours each time. Obviously the central issue in this case would be whether or not our client’s positive factors outweigh the negative factors, with the alien smuggling conviction looming as a very big negative factor.
At the Individual Hearing on December 11, 2013, Attorney Yu represented our client at the El Paso Immigration Court in Texas. Testimony then followed and we questioned our client extensively on the positive factors of her case. Attorney Yu questioned her regarding her length of residence in the U.S., employment history, educational history, family issues and hardships to her and her family members (especially her seven U.S. citizen children) if she was to be deported to Guatemala. Our client was prepared, was very consistent, and was honest in her answers. After direct examination, the DHS counsel only asked three more questions and agreed to not oppose the grant of her relief.
In the end, the El Paso Immigration Court granted our client’s cancellation of removal relief. It was a tough call and our firm was very happy for our client. She has been here since 1987 but had one bump along the way. She has reformed, will finish her studies, and will continue supporting her seven kids. It was obviously an emotional moment as her parents, sisters, and friends were in Court.