Immigration Lawyer defines 42A Requirements


Immigrants with green cards who are in immigration court may be able to stop the Department of Homeland Security (DHS) from deporting them, like Oscar.

Oscar came to the United States (U.S.) without papers in 2000. He and his wife, Liz, who is a U.S. citizen, married in 2002 and he got his green card that year. They have 3 children together. Oscar works in landscaping and he owns his own business. He supports his family while Liz takes care of their children. In 2015, he was convicted of drunk driving and after his criminal case ended, he was arrested by ICE.  The DHS filed a Notice to Appear against him and is trying to deport him for his DUI.

Oscar’s entire life is in the U.S. and he wants to fight his immigration case to stay with his family. He hired an immigration attorney who explained that Oscar can apply for cancellation of removal for certain lawful permanent residents (LPR). The Immigration Judge will either approve or deny his application after a hearing. If his application for cancellation is approved, he can stay in the U.S. A person can apply for cancellation only once, and they can only apply while in court.

Many non-citizens are like Oscar and can apply for cancellation of removal to stop their deportation and stay in the U.S. There are two kinds of cancellation of removal, one for people with green cards (LPRs) and one for those without a green card (non-LPRs). In a prior article, I discussed those without a green card.  This article discusses those that do have a green card and find themselves in removal hearings.

42A Requirements

Cancellation of removal for LPRs is also called 42A, which is the name of the application form. Before applying for 42A, you must meet these requirements: (1) have been a LPR for 5 years; (2) have resided in the U.S. continuously for 7 years after having been admitted in any status; (3) have not been convicted of an aggravated felony; and (4) warrants favorable discretion. INA § 240A(a).

The first requirement for 42A is that the person must have had their green card (or is a LPR) for at least 5 years. Oscar meets this requirement because he got his green card in 2002, which is more than 5 years ago.

Residency

The second requirement can be tricky because it has two parts. It requires that you have (1) lived in the U.S. continuously for 7 years (2) after having been admitted in any status.

There are two groups of people who usually do not meet this requirement. The first are people who were allowed into the U.S. by immigration, lived in the U.S. for a few years, returned to their home country for a few years, then came back to the U.S. In this situation the 7 consecutive years timer did not start when they first entered, but when they returned to the U.S. Their return to their home country re-started the clock. Short trips back to your home country are fine, but if you return to your country for a long period of time you may have re-started the clock. If you have returned to your country, let your attorney know the details.

The second group of people who do not meet this requirement are those who have 7 consecutive years in the U.S., but they do not satisfy the second part: after immigration has given you status, like a green card or a visa.

Oscar satisfies this requirement because he has lived in the U.S. since 2000, and, more importantly, since he was admitted as a LPR in 2002. Oscar would still be eligible if he entered the U.S. with a visa in 2002 because he was admitted with a visa.

Aggravated Felony

Some people cannot apply for 42A because of the third requirement: have not been convicted of an aggravated felony. The two key parts of this requirement is (1) being convicted (2) of an aggravated felony. You must have been convicted of a crime for it to count. If you are charged with a crime and never convicted, it will not count towards this requirement. If you are convicted of a crime and it is not an aggravated felony, then it will not disqualify you from applying.

A crime can be an aggravated felony because of the sentence or because of the crime itself. A lot of drug crimes, regardless of how long your sentence was and how much time you served, are aggravated felonies. In Oscar’s case, his DUI is not an aggravated felony and so he can apply.

Deserving Applicant

The final requirement is that you deserve to have your 42A granted. Oscar can argue that he deserves to be granted because he has been in the U.S. for many years, his entire family are U.S. citizens, he is the only one that earns money, he owns a business and his DUI is his only crime. It is hard to argue that you deserve 42A if you have many criminal convictions.

This application requires a lot of documentation. You have to prove to the court how long you have been in the U.S. (using tax returns, rental/ lease agreements, and bank statements) and why the judge should grant your application. You can have loved ones and friends, even people from your church, write letters explaining why they think you should be allowed to stay. You should have an experienced NJ immigration attorney review your case to see if you can apply and if so, how strong your case is.

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