Video: Cancellation Of Removal
DEPORTATION DEFENSE: HOW TO WIN YOUR CANCELLATION OF REMOVAL TRIAL
Immigration Attorney Carlos Batara Briefly Shares Strategies For Cancellation Of Removal Trials In This Video
There are three types of cancellation of removal. There are separate programs for lawful permanent residents, immigrants who are not lawful permanent residents, and abused immigrant spouses of U.S. citizens and lawful permanent residents.
Each of these programs has different requirements.
In this video, Immigration Attorney Carlos Batara discusses cancellation of removal for non-green card holders, immigrants who arrived without permission or who have overstayed their authorized visits.
Three Cancellation Of Removal Requirements
For Undocumented Immigrants
For these individuals, cancellation of removal is often the only defense against being removed from the United States. They cannot claim relief under special humanitarian programs like asylum and TPS, employment-based petitions, or family-based programs which lead to a green card.
A. Ten Years Of Continuous Residency
The first requirement is that you must have lived in the U.S. for ten continuous years. In some instances, brief, innocent, and casual absences may be excused. On the other hand, certain departures and returns may disqualify you from cancellation of removal.
B. Good Moral Character
The second requirement is that you must demonstrate good moral character for the past ten years. Good moral character does not mean perfect moral character.
However, certain convictions, which you think are minor, may be equal to an aggravated felony under immigration rules. In addition, other actions, not leading to criminal conviction, may also lead to good moral character problems.
C. Exceptional And Extremely Unusual Hardship
By far, this is the requirement which causes most immigrants to lose their cancellation of removal cases.
Which Road Will You Take?
At the start of your cancellation of removal defense, one of the first questions your immigration lawyer needs to ask is, “If you are deported, do you plan to take your family members with you, back to your home country? Or will you leave there here in the U.S. while you return alone?”
That’s a tough, tough, tough question to answer. It’s like planning a will. Who wants to really think about the day he or she dies? Likewise, what immigrant has a desire to plan for the day they are deported?
But it must – absolutely must – be answered before you plan your deportation defense under cancellation of removal.
Evidence Needed To Win Your Case
Once you answer this question, you can start to put carefully together the evidence needed to highlight the various aspects of your family’s hardship if you are deported.
Your evidence should include the following issues:
- Your Immigration History – What’s your age? When and how did you enter the country? How long have you lived in the U.S.?
- Your Children – Were any born in the United States? What are their ages? Have they ever visited your home country? Do they speak the language of you home country? If they go back to your home country, can they continue their education there?
- Medical Issues – What’s your health? Your wife’s health? Your children’s health?
- Country Conditions – Does you home country experiencing political or economic chaos? Or a natural disaster?
FULL VIDEO TRANSCRIPT
Hi. This is Carlos Batara in another session of simplifying and demystifying immigration law. Today’s session is going to cover the last chance defense: Cancellation Removal For Non-Lawful Permanent Residents.
This is a tough, tough, tough place to be, if you happen to have to use cancellation of removal. What it means is that you’re facing removal from the country. You’re facing deportation and you have nothing else you can really count on to seek immigration benefits. That’s why I call it the last chance defense.
One of the first things that happens here is that you’re placed in immigration court proceedings. Often times someone is picked up by law enforcement. Maybe you’re driving down the road. A light at the back of your car doesn’t work. At first it looks just like a minor violation of the traffic code. The officer checks your ID card. You don’t have an identification card, so they refer you to immigration, and the immigration officer verifies you’re an undocumented immigrant or that you came here legally.
Let’s be clear about that because fifty percent of those who are considered undocumented immigrants didn’t arrive here legally and so they decided to deport you. However, you may be entitled to a hearing with a judge before they deport you.
Let’s discuss when you’re entitled to the hearing. We’re going to discuss what it takes to win that hearing;
So, unfortunately, you’re now turned over to immigration custody. From there, you will get an immigration court hearing with an immigration judge. You’re placed in deportation proceedings. There’s nothing else available to you. Your family hires an immigration lawyer to visit you. He or she now says, “We have to try cancellation of removal. It’s a high risk defense – very hard to win.”
Certainly, this is not something you want to do on your own. Very few cases are successful and the consequences are great. If you lose, of course, you’ll going to be deported. But if you win, you’re in line to get a green card and become a permanent resident.
What do you need to prove? Well, first thing is that you have been physically present continuously for ten years in the United States before the day immigration officials gave you the papers to start your case. If something broke that period, like a prior voluntary departure or you were deported before, you’re probably not going to be able to try to use this defense for your benefit.
Secondly, and this is where a lot of people get confused: it’s a good moral character requirement. Do you have certain convictions? Are there certain things you’ve done that are blemishes on your character? If there is, then you may not pass the good moral character test. By and large, most individuals who try to use the last chance defense meet these two requirements quiet easily – or else they would not be seeking to win by cancellation of removal.
The third requirement. This is where rubber meets the road. This is where you separate cases – the strong from the weak. It’s proving hardship. If you can meet the requirement of exceptional extremely unusual hardship, not to you, but either to your spouse, your parent or your child, that’s a U.S. citizen or lawful permanent resident, you can win your case.
Let me say that again. The qualifying relative – the person whose hardship the judge will ask you about – must be a United States citizen or lawful permanent resident and they must be a spouse, a parent or a child which means a child under age of 21.
How do you prove that? This is where it becomes very complicated.
The judge will look at things like: What’s your age? How did you enter? How long have you been here? The judge will look at the age your children. Are your children citizens? What is their ability to speak the foreign language? Have they ever been to your home country? Will they ever be able to go back there to continue their education? Will they go to their home country and get teased because you’re American citizens?
What is your health? What’s the health of your children? What’s the health of your spouse? Do you need special medical care provided in the United States? Does your home country provide similar services? What about the ability to obtain employment? Does your home country have the kind of jobs where you can continue to support your family? What about how long your family members or other family members have been in the United States? Do you have family members in your home country?
These are very important questions.
Another, what is the educational system like in your home country?
These are the type of factors that have become very important in immigration law.
And when the judge looks at hardship in your case, you’ll going to have to make a decision. You’ll going to make a decision at the beginning of the case. Which road are you going to take? Are you going to say to the judge, “If I get deported I will take my children, my wife, my parents with me back to my home country.” Or are you going to tell the judge, “They’ll going to stay here,” and you’re going to go alone. Very, very important question.
And I don’t know any client that answers that comfortably. It’s sort of like an attorney who does a will. Who goes to an attorney and wants to talk about the day they die and how, after they’re dead, how are things going to get done for their children? It’s the same thing here. No immigrant I’ve ever met wants to come to my office and tell me what they’re going to do on the day they will be deported. But, unless you’re serious and you can answer that question it’s going to be very hard to win your case in the court.
Another thing that they look for in the court is what the psychological impact of your removal or deportation. For instance, is your wife already having these nightmares and is her health already deteriorating, due to the fear of your possible deportation? If you can get proven medical support from a psychologist or a psychiatrist, then you can use that in the court to your benefit.
Here are some things to look at.
What are the conditions in your home country? Is your country in political chaos? Is it in economic chaos? Has there been a natural disaster in your country?
What about your contributions or your ties to your community and the contributions and ties your children here in the U.S.? For instance, do you have a child that’s an A student, getting the top grades in their class, about to go to college, and you are their only way of getting into college. You not only encourage them because you are educated in your home country, but you contribute to them financially. Is that child still going to be able to go forward? These are important questions.
Is there any way for you to come back someday as a green card holder? If your child, born here, is nine years old, that means if you get deported tomorrow, you will have to wait 12 years before he can file papers for you. Very important question for the judge, but this is where most cases bog down.
These types of issues are, in most cancellation of removal cases, where you are going to win or lose. This is what I say that hardship cases separate the good attorneys from the bad attorneys. If they are going to put up a fight on hardship, they have to know hardship law inside and out. This is where the outcome of most cases will be determined. In my experience, 90% of the cases in deportation proceedings at immigration court are decided on this requirement. If you can meet the hardship requirement strongly, then you will survive.
Unfortunately, the law right now is not on the side of immigrants. Cancellation of removal has a very strict standard. I believe, personally, the courts have misinterpreted this standard. I have to admit I have yet to prove that in court but I’m still fighting that battle, but in the meantime, we have to live by the way the court has interpreted hardship and we have to follow the rules to save you from getting deported.
In any event I hope that I’ve been able to explain this last chance defense. So remember that if you get stopped for something as minor as broken tail light you could get put into deportation proceedings. Don’t sign your rights away.
Too many people come to my office because an uncle, an aunt, a husband or wife has just decided not to sit in jail. They didn’t know that they could possibly have a last chance and they might have had a wonderful case where they could have put up a great fight but instead they gave their way and now they are separated for life. We don’t want that to happen to you. We want to win your case. Fight back. Think cancellation of removal.