RELIEF FROM DEPORTATION

Removal of aliens inadmissible or deportable from the United States may be cancelled in certain cases. Section 240A(b) of the Immigration & Nationality Act provides relief to an inadmissible or deportable alien who has 10 or more years of continuous physical presence in the United States and has good moral character. The 10- year period of continuous physical presence is deemed to end when the alien is served with a Notice to Appear (NTA) or when the alien commits certain offenses that renders him or her inadmissible or removal, whichever date is earlier. The commission of any felony stops the continuation of continuous physical presence in the United States.

Section 240 A(b) further requires a showing of "Exceptional and Extremely Unusual Hardship" to a qualifying U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse, parent, or child. Hardship to the inadmissible or deportable alien (hereinafter referred to as the ?pplicant? does not count. That is, hardship to the alien does not matter no matter how long he or she has been to the United States or how much hardship the alien would sustain if required to return to his or her country.

The elements of Section 240A(b) provides for the cancellation of removal and adjustment of status to that of Lawful Permanent Residence for those aliens who can establish the following:

1. Physical presence in the United States for a continuous period of not less than 10 years preceding the date of the application;
2. Good moral character during the 10 year period, plus: not convicted for any offense under the Immigration & Nationality Act Section 212(a)(2) (criminal and related grounds), Section 237(a)(2) (criminal offenses), or Section 237(a)(3) (failure to register and falsification of documents); not inadmissible under Immigration & Nationality Act Section 212(a)(3) (security grounds); and not deportable under Immigration & Nationality Act Section 237(a)(4); and
3. Removal from the United States would result in exceptional and extremely unusual hardship to the alien's USC or LPR spouse, parent or child.

Continuous presence requirements provide that the alien must not have departed the United States for any one period in excess of 90 days or departed the United States for any period in the aggregate exceeding 180 days.

The continuous presence is terminated upon the occurrence of any of the following:

1. The service of a "notice to Appear" (NTA) by the Deportation Branch on the alien; or
2. The commission by the alien of an offense referred to in INA Section 212(a)(2) (criminal and related grounds), that renders the alien inadmissible under INA Section 212(a)(2) or removable under Section 237(a)(2) (criminal offenses) or Section 237(a)(4) (security grounds).

Please note that aliens who serve a minimum of 24 months on active duty in the United States Armed Forces, and if separated from service, under honorable conditions and at the time of the alien? enlistment were physically in the United States, are exempted from the continuous physical presence provisions of this law.

The term, "Exceptional and Extremely Unusual Hardship" to the alien? USC or LPR spouse, parent, or child, is substantially more restrictive than the former standard required of extreme hardship personally, or to the qualifying family members. This law increases the level of hardship to the required USC or LPR relatives. In addition, it also bars consideration of any hardship to the applicant, no matter how severe.

The meaning of "Exceptional and Extremely Unusual Hardship" has been interpreted to mean that relief shall only be available in the very limited cases where the deportation of the alien would be unconscionable. The following hardship factors should be considered:

1. Age of the applicant, both at the time of entry and when the relief application is filed;
2. Family ties in this country and abroad;
3. Length of U.S. residence;
4. Health of the applicant and qualifying relatives;
5. Political and economic conditions of the home country;
6. Possibility of other means of adjustment;
7. Community ties;
8. Immigration history of the applicant.

The lower standard of living abroad or adverse condition in the country of return is only relevant as to the hardship of the qualifying relative and not the applicant. Examples of cases likely to establish ?xceptional and extremely unusual hardship?include a case where the applicant has elderly parents in this country who are solely dependent upon him for support. Another strong case might be that of an applicant who has a qualifying child with serious health issue, such as severe Asthma, which would be aggravated if he were to return to the alien? country. Yet another strong case might be that of an applicant who has a child with a life-threatening medical condition who would be unable to get medical treatment for the medical condition abroad.

When applying for a cancellation of removal, it will be necessary to review all possible factors which may strengthen a hardship argument, including considering the use of experts to explain the hardship the U.S. citizen or Lawful Permanent Residence relative spouse, parent or child would sustain if the applicant were to return to his or her home country.

Please also note that the following aliens are ineligible to apply for Cancellation of Removal:

1. Crew members;
2. Exchange visitors;
3. Aliens who are inadmissible on security grounds;
4. Persons who have persecuted others because of the individual's race, religion, nationality or membership in a particular social group or political opinion.

This article is for information only. It is not intended to create a lawyer-client relationship. It is not substituted for the individual legal research required for any case or legal representation that is essential to any case.

If you desire further information about cancellation of removal, please contact the Law Offices Wellington Y. Kwan, Inc. Wellington Y. Kwan is a Certified Immigration and Nationality Law Specialist certified by the California State Bar Board of Legal Specialization. Mr. Kwan speaks Mandarin and Cantonese. The Law Offices of Wellington Y. Kwan, Inc. has been serving the immigrant community for over 25 years.

LAW OFFICES OF WELLINGTON Y. KWAN, INC.
3580 Wilshire Blvd., Suite 1120
Los Angeles, CA 90010
Telephone Number (213) 382-1888
Fax Number (213) 639-1670
Email address: info@wellingtonkwan.com