It has now been over a month and a half since April 1, 1997, when most of the provisions of the “Illegal Immigration Reform and Immigration Responsibility Act of 1996” (“IIRAIRA”) went into effect. This article shall focus upon one of the most significant changes to the Immigration and Nationality Act (“INA”): the merging of the formerly separate “Deportation” and “Exclusion” proceedings into “Removal” proceedings.
The change to “Removal” proceedings will affect many different people. This group of persons include all those who have been served Notices to Appear in Immigration Court after April 1, 1997. Whether the Notice to Appear was issued because the Immigration and Naturalization Service denied the individual’s application for asylum, or the individual did not appear for his asylum interview, or perhaps his or her LULAC or CSS application was denied or revoked, the alien will now find himself in removal proceedings instead of deportation proceedings.
One very important defense against removal proceedings is that of “Cancellation of Removal.” Prior to April 1, 1997, Cancellation of Removal was known as Suspension of Deportation. If you are able to win a “Cancellation of Removal” hearing in front of the Immigration Judge, you are granted lawful permanent resident status, or a “green card.”
In order to qualify for the “Cancellation of Removal” relief, you must first meet certain criteria set forth in the new law. One of the biggest changes made by “IIRAIRA” is that you now must have ten (10) years of continuous physical presence in the United States instead of seven years. Many people are still under the belief that they may be entitled to suspension after seven years, but at this point in time, they are most likely mistaken.
In order to have ten years of continuous presence, you cannot have left the United States for over three months at anytime during the ten year period; you also cannot have left the United States for over 180 days total during the ten years. And finally, under the new provisions of the INA, you must have accrued the full ten years on or before the date that you receive your Notice to Appear. In other words, if you were served your Notice to Appear on April 5, 1997, you must have arrived on or before April 5, 1987 in order to qualify for Cancellation of Removal.
The next criteria for cancellation of removal is that you must demonstrate that you have been a person of good moral character for those same ten years. A showing of good moral character requires not only a lack of criminal record, but also evidence that you have contributed favorably to society in some way.
The final and often most difficult requirement for cancellation of removal is establishing that your removal from the United States would result in an “exceptional and extremely unusual hardship” to your spouse, child or parent, who must be either a lawful permanent resident or a U.S. citizen. In other words, in order to be eligible for cancellation of removal, you must have an immediate relative who is a U.S. citizen or a green card holder. The Immigration Judge must determine that this relative relies upon you greatly and would suffer “exceptional and extremely unusual hardship” if you were ordered to leave the country.
Now more than ever, as the legal provisions become more complicated, it is very important to place your trust in an attorney who is experienced as well as a Specialist in Immigration and Nationality Law. Immigration laws have become much stricter and there are many new changes coming about as the new standards takes shape. Please try to consult someone who keeps abreast of the new rules and will go out of his way to give a full analysis of your case and qualifications to determine what is best for you. Always remember that you deserve to be represented by the best.