Cancellation of removal


Cancellation of removal is a provision of the Immigration and Nationality Act of the United States that allows some aliens who are in removal proceedings, who have lived in the United States for a long period of time and meet certain other conditions, to apply to remain in the United States and have the removal proceedings terminated. Cancellation of removal was crafted by the U.S. Congress to replace "suspension of deportation," a similar form of relief available prior to April 1, 1997.
Cancellation of removal is potentially available to both lawful permanent residents and other aliens who do not have LPR status, but the criteria for non-LPRs to qualify are much stricter. A non-LPR who is granted cancellation of removal becomes an LPR.

Background

The term "Attorney General" in the INA refers to an immigration judge, a member of the Board of Immigration Appeals, and the Attorney General himself. "The term 'alien' means any person not a citizen or national of the United States." The terms "inadmissible aliens" and "deportable aliens" are synonymous, which mainly refer to the INA violators among the 75 million foreign nationals who are admitted each year as guests, the 12 million or so illegal aliens, and the INA violators among the 300,000 or more foreign nationals who possess the temporary protected status.
"Only aliens are subject to removal." "The term 'lawfully admitted for permanent residence' means the status of having been lawfully the of residing in the United States...." A longtime LPR can either be an American or an alien but not a foreign national, which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has physically spent in the United States as a green card holder.
U.S. Presidents and the U.S. Congress have expressly favored some "legal immigrants" because they were admitted to the United States as refugees, i.e., people who escaped from genocides and have absolutely no safe country of permanent residence other than the United States. Removing such protected people from the United States constitutes a grave international crime. In this regard, U.S. President Bill Clinton had issued an important directive in which he expressly stated the following:
Prior to April 1, 1997, the effective date of IIRIRA, a legal remedy known as "suspension of deportation" was available to aliens in deportation proceedings. Although functionally similar to cancellation of removal, suspension of deportation did not distinguish between "permanent residents" of the United States and "nonpermanent residents." To obtain suspension of deportation, an applicant under the pre-IIRIRA standard was required to fulfill the following: continuous physical presence in the United States for a period of at least seven years; "good moral character" during that entire period; and that the applicant's deportation from the United States would result in "extreme hardship" to the applicant or any qualifying relative, which was mainly the applicant's spouse, parents, or children, who were either citizens or LPRs of the United States. After these three requirements were met, the LPR was granted relief irrespective of his or her age, health, race, color, religion, nationality, political affiliation, political opinion, etc.

Approval standard for cancellation of removal as of April 1997

Lawful permanent residents of the United States

An LPR, especially one who was admitted as a refugee under 8 U.S.C. § 1157, is fully protected by the Constitution and laws of the United States against every form of illegal deportation. An LPR may only be placed in removal proceedings after suffering a conviction that clearly renders him or her "removable" from the United States.
Removal proceedings may be initiated against an LPR for other reasons, such as voluntarily abandoning or relinquishing permanent resident status, staying outside the United States for more than six months unless exceptional circumstances are shown, engaging in illegal activity outside the United States, etc. In such situations, the LPR takes risks of becoming inadmissible to the United States.
A longtime LPR convicted of any aggravated felony is statutorily entitled to cancellation of removal and a waiver of inadmissibility unless if his or her "term of imprisonment was completed within the previous 15 years." This 15-year passage of time, however, positively does not apply to any such LPR who was admitted to the United States as a refugee under 8 U.S.C. § 1157. In this regard, the INA states the following:
According to the BIA, "cancellation of removal is both discretionary and prospective in nature." For purposes of judicial review, however, it does not qualify as a "decision or action of the Attorney General... the authority for which is specified... to be in the discretion of the Attorney General." The term "discretion" is intentionally not even mentioned in the entire 8 U.S.C. § 1229b, except in only one isolated place but that subparagraph is completely unrelated to the legal remedy created here specifically for longtime LPRs.
Whenever the three requirements in the above quoted INA provision are met, the longtime LPR must be granted cancellation of removal, irrespective of his or her physical location, age, health, race, color, religion, nationality, political affiliation, political opinion, etc. Anything to the contrary will result in "deprivation of rights under color of law," which is a federal crime that entails, inter alia, capital punishment for immigration officials "and others who are acting as public officials."
Refugees, especially those that have been firmly resettled in the United States, may be granted cancellation of removal or a waiver of inadmissibility at any time, even if they have been convicted of particularly serious crimes. In addition to that, the U.S. courts of appeals have reaffirmed that the "stop-time rule" for cancellation and inadmissibility purposes statutorily does not apply to those who committed a non-aggravated felony offense before April 1997, especially a firearm violation that merely constitutes 8 U.S.C. § 1227, which the BIA had pointed out in a 2000 en banc decision.
Deportation from the United States is not a criminal procedure. Under, any officer mentioned in may at any time move to: terminate the removal proceedings of any person who turns out to be an American; or cancel the removal proceedings of anyone who is clearly not removable under the INA. As explained above, the term "removable" in the INA explicitly refers to both inadmissible aliens and deportable aliens. "Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations,... or where the United States Department of Homeland Security| fails to sustain the charges of removability against a respondent"

Nonpermanent residents

Regarding a nonpermanent resident, the Attorney General is expected to cancel the removal proceedings if the alien:
Like explained above, offenses committed before April 1997 do not stop the alien's 10 years of physical and continuous period, and a decision here does not qualify as a "decision or action of the Attorney General... the authority for which is specified... to be in the discretion of the Attorney General." Every alien who fulfills the above requirements element-by-element is statutorily entitled to cancellation of removal and adjustment of status. Every denial here is subject to a full judicial review. See below.

Judicial review

"Judicial review of a final order of removal... is governed only by , according to 8 U.S.C. § 1252, which is titled: "Judicial review of orders of removal." There, Congress expressly states that no court shall review "any judgment regarding the of" cancellation of removal. Congress intentionally avoided using any term that is contrary to granting. This plainly and unambiguously means that once any immigration judge "grants" cancellation of removal to any person and is affirmed by at least one BIA member, there shall be no review of that judgment by any court unless some kind of a legal error is shown.
This legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Under the well known Chevron doctrine, "f the intent of Congress is clear, that is the end of the matter, for the court as well as the must give effect to the unambiguously expressed intent of Congress."
Regarding decisions in which the Attorney General denies cancellation of removal, especially to longtime LPRs, federal courts are fully empowered to review them, including "findings of fact" and claims of United States nationality or miscarriage of justice. Also, just like there is no statute of limitations for visas, citizenship, and other immigration purposes, there is no statute of limitations in removal proceedings, especially in cases involving exceptional circumstances. Such particular cases can be reopened at any time and from anywhere in the world. Moreover, the courts are fully empowered by federal statutes to grant injunctive relief in particular cases. "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers."
The courts, however, are commanded by 8 U.S.C. §§ 1252 and 1252 to not help any alien "unless the alien shows by clear and convincing evidence that" his or her deportation from the United States "is as a matter of law." This is mainly to prevent miscarriages of justice, lawsuits against the United States, and unnecessary remands. To fulfill the requirements of §§ 1252 and 1252, all a person needs to do is show any of the following: U.S. birth certificate, U.S. passport, a permanent resident card, etc., along with a written legal argument explaining, e.g., that he or she is an American and belongs in the United States "as a matter of law." The court has no other choice but grant the requested injunction in such situation.