Removal of Relief for Nonpermanent Residents
The cases can be challenging, but many clients are eligible to have their cases for Cancellation of Removal and Adjustment of Status heard in Immigration Court.
Generally, to show eligibility for relief, you must demonstrate: (1) continuous physical presence in the United States for a period of ten years prior to service of the Notice to Appear, (2) good moral character, (3) no convictions of certain crimes, and (4) exceptional and extremely unusual hardship to his or her U.S. Citizen or Lawful Permanent Resident spouse, parent, or child.
Alternatively, an applicant may show evidence that he or she has been battered or subjected to extreme cruelty by his or her U.S. Citizen or Lawful Permanent Resident spouse, or he or she is the parent of a U.S. Citizen or Lawful Permanent Resident spouse who has been battered or subjected to extreme cruelty by his or her U.S. Citizen or Lawful Permanent Resident parent. In that case, the applicant must also show evidence of good moral character, not have any deportable convictions, and show extreme and unusual hardship. However, the continuous physical presence requirement is reduced to three years.
In accordance with the Notice to Appear, the immigration judge will first set a Master Calendar Hearing, think of this as a conversation with the Judge on the status of your case. At your first Master Hearing, your New Jersey immigration lawyer will submit pleadings (the complaint the government files to begin the removal process) and Enter his or her Appearance; if there is no attorney present, the judge adjourn the hearing to give you more time to find an attorney. Once the pleadings have been entered, the judge will either set another Master Hearing to file any necessary petitions, or an Individual Hearing, which is the trial date.
At the Individual Hearing, the judge will take into consideration any testimony, as well as all evidence filed by your attorney and the attorney for the Department of Homeland Security. The judge may either make his or her decision at the end of the hearing, or send you a copy of the written decision by mail.
Once the decision has been entered and served by the Immigration Judge, each party has 30 days to file an appeal with the Board of Immigration Appeals. If the right to appeal is waived, or an appeal is not filed by the end of 30 days, the order of the judge becomes final and a Lawful Permanent Resident (LPR or Green) Card will be issued by the United States Citizenship and Immigration Service (USCIS). If the card is not received within approximately one week, make an InfoPass appointment with the local USCIS Service Center and bring all relevant documentation, including the signed Order and your passport.
Preparing for Court
It is important to note that the outcome of these cases is left to the discretion of the judge, and there are common sense actions that both your attorney and you can take to better the chances of a favorable outcome. First, you should arrive to court early. Leave ample time to get through security, just as you would if going to the airport. Bring appropriate documentation, such as the Notice to Appear, and government-issued identification such as a valid driver’s license or passport. Do not bring any prohibited items into court (review these items on the Immigration Court website or call the clerk’s office prior to the hearing).
Show respect to the court personnel, officers, administrative assistants, law clerks, and especially to the judges. Showing deference to the court includes dressing appropriately, not chewing gum or having any other food or beverage in the courtroom, silencing all cell phones, and not talking in the courtroom. Be prepared for long wait times in court; use the restroom and make any necessary phone calls outside of the courtroom in ample time prior to the hearing.
Address the Immigration Judge respectfully. Translators are provided in court as needed. Preparation and courtroom etiquette are essential to setting the right tone and gaining the court’s respect, confidence in the evidence presented, and full attention to the case.
The judge will set a deadline for filing the Application for Cancellation of Removal for Certain Nonpermanent Residents, Form EOIR-42B, typically at the first or second Master Hearing. The application must be timely filed and thoroughly and carefully completed, as any inconsistencies in the application and testimony will put into question the applicant’s credibility.
First, a copy of the completed EOIR-42B Application must be sent to the appropriate United States Immigration and Service Center, along with the completed Biographical Information Form G-325A, two passport photos, and the correct filing fee via check or certified funds (do not send cash). Passport photos are easily obtainable from your local post office and many pharmacies also offer this service. Write the name and Alien Registration number on the back of each photograph. If the filing fee is an issue financially, the judge may at his or her discretion permit a fee waiver.
Next, the application must be filed with the Immigration Court, along with a copy of the USCIS fee receipt and Biometrics (fingerprint) Appointment Notice, and the Certificate of Service, showing service of these documents to Chief Counsel’s Office (this is the government’s attorney). The application and exhibits should be well-organized. Upon filing of the application, the applicant may also apply for an Employment Authorization Document (Form I-765) with USCIS while the removal proceedings are pending.
Supporting documents should be submitted as copies in the application, but the original documents must be brought to court for inspection. The judge may also request additional evidence in support of the application, and bear in mind that any foreign language document submitted must be accompanied by a certified translation.
Immigration judges are strict about the continuous physical presence requirement; they tend to believe that one who has been in the United States for ten years should have ample evidence of his or her physical presence. Applicants should therefore present as much proof as possible. Some documents may include leases, government-issued identification or licenses, receipts, birth certificates, school records, church records, employment records, tax records. In addition, the attorney should be aware of any trips outside of the United States, in order to make a determination as to whether continuous physical presence has been broken according to the legal standard.
Evidence of good moral character may include payment of taxes, clean criminal history, payment of child support (if applicable), certificates or photographs of volunteer community service, charitable donations, and affidavits attesting to your moral character, ideally including letters from your employer and reputable United States Citizens or Lawful Permanent Residents. Certain crimes will bar eligibility for this form of relief, and traffic violations and petty offenses should be mitigated by demonstration of reformed character.
Evidence of ties to United States Citizens and/or Lawful Permanent Residents is also extremely important. Birth, marriage, divorce, and death certificates as well as any relevant medical records are examples of evidence to be included.
Demonstrating extreme hardship is often the most difficult element to overcome in a Cancellation of Removal case. While many individuals experience ordinary hardship, the level of hardship must rise to a very high standard for a judge to grant relief. It is in this aspect of the case that a skilled New Jersey immigration lawyer will zealously argue why you qualify.
Andres Mejer is available to analyze your situation and discuss your chances of success. 888-695-6169.