The United States immigration system contains millions of pending applications at any given time. Although many immigrants throughout the United States ultimately submit their applications to obtain lawful permanent residence (i.e., a “Green Card”) or other immigration benefits to the U.S. Citizenship and Immigration Services (“USCIS”), the Immigration Courts located in the Executive Office for Immigration Review (an office within the U.S. Department of Justice) present a very different, surprising, and far riskier path to lawful permanent residence: removal proceedings.
Without a doubt, being placed in removal proceedings and facing deportation from the United States is probably one of the greatest fears of any immigrant in the United States. If the Government succeeds in its case against an immigrant in removal proceedings, the Immigration Court will order the immigrant removed from the United States and, with only few exceptions, the immigrant will be transported back to their native country. Immigrants placed in removal proceedings because of criminal charges brought against them in the United States may even be placed in federal custody and detained for the duration of their removal proceedings, rendering it difficult or impossible for them to re-connect with their loved ones while their removal proceedings are ongoing, and their ability to secure legal counsel and obtain the necessary evidence to support their defense may be substantially impaired. Indeed, for nearly all immigrants currently residing in the United States – lawfully or otherwise – the possibility of being placed in removal proceedings is a scenario that cannot be described as anything other than truly horrifying and disastrous, as their removal from the United States will mean separation from their families, an end to the life they have built for themselves over a period of months or years, and a return to dangerous or unhealthy living conditions in the country they hoped to flee, leave behind forever, or never return to.
As difficult as the removal process is for countless immigrants, the current legal landscape does provide a little-known silver lining to the removal process: certain immigrants can acquire lawful permanent residence status and a Green Card by obtaining a form of relief known as cancellation of removal in a removal proceeding. Indeed, in certain circumstances, not only can immigrants prevail in their removal proceeding and avoid deportation from the United States – they can actually obtain a Green Card at the conclusion of the proceeding and be admitted to stay in the United States permanently when there would have otherwise been no other avenue available to obtain a Green Card.
The primary way an immigrant can obtain lawful permanent residence through a removal proceeding is through a process known as cancellation of removal. There are two (2) types of cancellation of removal: (1) cancellation for lawful permanent residents; and (2) cancellation for nonpermanent residents (i.e., non-Green Card holders). See 8 U.S.C. § 1229b(a)-(b). If you already have a Green Card and are placed in removal proceedings, you can avoid deportation if you have: (1) resided in the United States continuously for seven (7) years after lawful admission; (2) been a lawful permanent resident for at least five (5) years; and (3) not been convicted of any “aggravated felony.” See 8 U.S.C. § 1229b(a). On the other hand, even if you do not have a legal immigration status, do not have a Green Card, and did not lawfully enter the United States, you can still avoid deportation from the United States and obtain a Green Card through cancellation of removal if you: (1) have been continuously physically present in the United States for the previous ten (10) years; (2) have had “good moral character” for the previous ten (10) years; (3) have not been convicted of certain criminal offenses listed by federal law; and (4) establish that your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident (i.e., Green Card holder). See 8 U.S.C. § 1229b(b). Although immigrants in removal proceedings may also be able to avoid deportation through a process commonly known as “defensive asylum,” the avenues of relief available through asylum are not discussed in this article.
Federal law only allows 4,000 nonpermanent residents to be granted cancellation of removal per year. See 8 U.S.C. § 1229b(e). This generally means that even if a nonpermanent resident immigrant obtains cancellation of removal after the annual statutory cap has been met, they will nevertheless not be deported from the United States and will generally be released back into American society until the application can be approved (even if it takes several years). Cancellation of removal for nonpermanent residents (previously referred to as “suspension of deportation” under 8 U.S.C. § 1254) allows certain immigrants who are not lawful permanent residents but who have lived in the United States for an extended period of time a unique and unlikely avenue to obtaining a Green Card. Indeed, for some immigrants who unlawfully entered the United States and have resided here for decades or more, cancellation of removal is the only mechanism by which they can obtain a Green Card.
Nevertheless, cancellation of removal is far from an ideal pathway to lawful permanent residence. Immigrants can only apply for cancellation of removal when they are placed in removal proceedings. The risk of failure is dire, as failing to successfully defend a charge of removability is extremely likely to result in deportation. Even if cancellation of removal is the only avenue of relief available to you, it is still usually not recommended that you attempt to use cancellation of removal to obtain a Green Card unless there is absolutely no other option. Even then, it is strongly recommended that you obtain the advice of a knowledgeable immigration attorney before ever attempting to acquire cancellation of removal, as it is a difficult form of relief to obtain, and the possible benefit of obtaining a Green Card is usually not worth risking separation from loved ones and an end to years of hard work spent developing a life in the United States. However, when immigrants are confronted with the challenge of a removal proceeding for unrelated reasons, with the assistance of a skillful immigration attorney and the proper evidence, cancellation of removal could result in not only overcoming many otherwise insurmountable legal obstacles found in the immigration laws, but also in obtaining a Green Card and a new life of safety, security, and peace of mind never before thought possible.
ABOUT THE AUTHOR: Andy Goldstein
Andy Goldstein is an Associate Attorney and leads our Immigration Law team at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Immigration Law and Family Law. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.