To avoid removal from the United States, a lawful permanent resident must first qualify to apply for Cancellation of Removal for Lawful Permanent Residents.
Date: May 9, 2010
A lawful permanent resident who is placed in removal proceedings due to a criminal conviction may be eligible to apply for Cancellation of Removal (“COR”) which is an application for relief from removal. To avoid removal from the United States, a lawful permanent resident must first qualify to apply for COR.
To qualify to apply for COR a lawful permanent resident must:
1.Be a lawful permanent resident for at least five years;
2. Have seven years of continuous physical presence after having been admitted in any status;
3. Have not been convicted of an aggravated felony.
Once qualified to apply, the burden is on the alien to show that he or she deserves a favorable exercise of discretion from the Immigration Judge. The leading case entitled, Matter of Marin, details specific factors that an Immigration Judge must weigh when deciding a COR case.
The adverse factors include how recent the event occurred, seriousness, and nature of the criminal conviction and other evidence of bad character. The positive factors include length of time in the U.S., family and property ties in the U.S., and other evidence of good moral character.
The factors are weighed by the Immigration Judge during an Individual Hearing in an immigration court room. Present in the court room is usually an Immigration Judge, an Immigration Prosecutor, and the Respondent and his or her attorney. The Respondent presents their case first, followed by cross examination by the Immigration Prosecutor. All other evidence and witnesses’ testimony are considered by the Immigration Judge.
These trials typically last from 1-3 hours, with an occasional exception of a case lasting more than 3 hours. It is very important to seek competent and aggressive legal counsel to represent you before the Immigration Court. If the Immigration Judge grants the application of COR, the lawful permanent resident retains his or her green card status and, in some cases, can apply for United States citizenship.
If the Immigration Judge denies the application for COR, an appeal must be filed within 30 days of the denial or the decision will be final.