CANCELLATION OF REMOVAL: PROVING CONTINUOUS PHYSICAL PRESENCE AND AVOIDING COMMON PITFALLS

By Claribel Madueña, Esq. - Claribel@claribelaw.com

Cancellation of Removal (COR) is a form of immigration relief available to certain foreign nationals that the Department of Homeland Security is seeking to remove from the United States through the Immigration & Nationality Act (INA) §240A. In other words, it is an application used in defense against deportation. Lawful Permanent Residents (Green Card Holders) and Non-Residents may apply for COR.

Cancellation of removal cases are among my favorite types of cases to litigate. At first glance, they appear legally straightforward and even simple. However, once you dive in, you realize the intricate layers that fuse together law and fact, making or breaking a case. This article is the first of four in a series that will guide on presenting the best possible cancellation of removal case and avoiding unnecessary mistakes along the way. Over my 10+ year career, I have butchered my way through many COR cases, so believe me when I say that lessons have been seared into my memory. I hope that these practical tips will not only give you confidence and clarity but save you from the embarrassment I experienced during what I like to call my cancellation of removal hazing.

Learn the Law, Obsess Over the Facts

To qualify for cancellation of removal as a legal permanent resident, applicants must establish:

1) Lawful permanent residency for at least 5 years,

2) Continuous physical presence in the United States for at least 7 years after having been lawfully admitted, and

3) No aggravated felony convictions.

The elements for a non-permanent resident applicant are more stringent and require:

1) Continuous physical presence in the U.S. for at least 10 years,

2) Good moral character for 10 years preceding the application, and

3) Showing that a removal from the U.S. would cause exceptional and extremely unusual hardship to their U.S. citizen or legal permanent resident spouse, parent, and/ or child under 21 years old.

This first article in this series will focus on the continuous physical presence requirement.

First things first, establish your timeline.

This is key because it will either eliminate COR right away or define the parameters of your case. The Department of Homeland Security initiates removal proceedings by issuing and filing a Notice to Appear (NTA) Form I-862 with the Immigration Court under Immigration and Nationality Act section 240. It is critical that you review this document thoroughly with your client and examine for potential errors.

If an NTA is riddled with factual errors and/or is legally deficient, you may be able to terminate removal proceedings against your client. For example, your client may be named incorrectly, or DHS alleges that your client has a certain criminal conviction, but they do not. However, for the sake of this exercise, assume that the NTA is accurate.

Date of Notice to Appear:

Located on the bottom left-hand corner of page one. This date “stops-time” for your client and is the end point for continuous physical presence. See INA §§ 240A; 239(a). For example, if the date is 01/01/2021, then you must work back in time and your starting point is 01/01/2011. In other words, your client must prove continuous physical presence from, 01/01/2011 to 01/01/2021. If an applicant has been in the U.S. for well over 10 years, then this requirement will be easily met, but sometimes it is not so cut and dry.

Enter the glorious confusion of Pereira v. Sessions which has dramatically shifted the conversation surrounding the “stop-time rule.” There continues to be litigation surrounding the stop-time rule and it may change in the future, but this article’s focus is on the current state of the law. The Pereira case hinges on the language of the stoptime rule under section 240A and requirements for a notice to appear under section 239. Section 240A states:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end […] when the alien is served a notice to appear under section 239(a) [of the Act].[6] (Emphasis added.)

INA §239 governs the notice to appear requirements. Specifically, the law states that the notice to appear “shall be given in person to the alien […] specifying:

(A) The nature of the proceedings against the alien. [ … ]

(D) The charges against the alien, and the statutory provisions alleged to have been violated. [ … ]

(G) The time and place at which the proceedings will be held.[7]

This topic alone can form its own article, but I will keep it brief. In Pereira, the time and date were not included on the NTA. The government served a notice to appear on respondent, Wescley Fonseca Pereira, after he overstayed his visa. The notice stated that Pereira was “ordered to appear” in the Boston immigration court “on a date to be set at a time to be set.” Pereira argued that the NTA did not stop him from accruing continuous physical presence because the notice did not state the date and time of hearing as required by the federal regulations. The Supreme Court agreed with Pereira and ruled that service of a notice to appear that does not contain the time and place of an individual’s immigration court hearing does not stop the 10-year clock for non-U.S. permanent resident cancellation of removal.

So, when does the clock stop if the NTA does not contain the time and place of hearing? Enter Board of Immigration Appeals decision Matter of MendozaHernandez which states that the deficient NTA can be “perfected” and stop the 10-year clock if a court hearing notice containing the time and date of hearing is subsequently sent to the respondent. In practical terms, you will have to look at the notice date of the court hearing notice to determine when the clock stops. As you will note, the legal issues mired within the everchanging landscape of the stoptime rule require meticulous research, but it may prove critical in establishing your client’s eligibility.

Potential events that will interrupt continuous physical presence.

Once you have determined that your client can establish the requisite timeframe for physical presence, you must confirm that it has been “continuous.” Certain factors will stop the clock and may disqualify your client from COR.

1) Absences longer than 90 days. INA § 240A(b)(1)(C). You must always ask your client about all entries and exits from the U.S. This usually comes up when your client has returned to their country of birth to visit family. Sometimes, your client only departs for two weeks, which is not problematic, but watch out for many absences spanning for several weeks at a time.

2) Absences that total more than 180 days in the aggregate. INA § 240A(b)(1)(C)

a) There are exceptions to this rule if the respondent is a U.S. military service member and was required to go abroad. See INA §240A(d)(2).

3) Absences or departures under the threat of removal. The length of departure is irrelevant. For example, if a person has been ordered removed and leaves the U.S., their departure interrupts the requisite continuous physical presence. This rule will apply even if the person does not know of the removal order, i.e., in absentia removal orders.

a) If a person leaves the U.S. under voluntary departure in lieu of being ordered removed by an immigration judge will also break their continuous physical presence. See Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002); Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. 2008).

However, if a person’s voluntary departure was not “knowing and voluntary,” it may not interrupt continuous physical presence. The BIA states that a voluntary departure order does not break continuous physical presence if the person was informed of their right to see an immigration judge. Matter of CastrejonColino, 26 I&N Dec. 667 (BIA 2015); Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015).

4) Certain criminal activity. Know your client’s arrest and conviction record - I cannot stress this point enough. Nonpermanent residents convicted of offenses listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3) will be automatically barred from cancellation of removal. However, more analysis is required for legal permanent residents. For example, if a lawful permanent resident commits a crime involving moral turpitude within seven years of their admission, they will not have the requisite continuous physical presence for COR.

Evidence. Evidence. Evidence.

Documenting your client’s continuous physical presence can be tricky, but it is an opportunity to get creative and guide your client. I usually provide clients with the following list and explain how important it is for them to collect all available documents.

1. Income tax returns,

2. School records,

3. Medical records,

4. DMV records,

5. Memberships (gym, team sports),

6. Lease,

7. Bills,

8. Money wire transfers back home,

9. Receipts,

10.Family photos,

11.Letters from family and friends,

12.Legal documents such as marriage certificates, licenses, birth certificates, criminal records if applicable, and more.

Many times, practitioners limit these documents to a specific purpose, but you may also use how hard your fought for them.

Common challenges.

As many of you are likely aware, preparing a strong case requires a Herculean effort by you and your client. While it may be stressful and even tedious for advocates at times, keep in mind that for your client, their family’s future hangs in the balance. No amount of stress that you feel compares to the uncertainty and anxiety your client experiences as their case runs the removal machine.

1. Client memory and potential inconsistencies. I see this most when a client has multiple departures from the U.S. Sometimes, it will not matter because of the documentation you can provide and/or your client’s length of time living and working in the U.S. At other times, you will face close calls where your client does not remember whether they were in their birth country for 80 or 100 days. Some clients are simply bad with dates and/or have faulty memories. Ground your client by referencing holidays, birthdays, and/ or world events. Also, loop in their spouse to these conversations. Sometimes, the spouse has a better memory of dates and time duration than the respondent.

2. Lack of documentation. As I mentioned previously, get creative! Use the list to guide you, but do not be afraid to think outside the box. Never submit documents that could prejudice your client, but do not limit yourself to the list. Also, understand that some cases will be better documented than others and that is ok too. Your client’s credibility, and witnesses will be extremely important in these cases.

My final piece of advice would be to embrace the challenge. Even if you lose, your client will always remember how you made them feel throughout the process and how hard you fought for them.

About the Author

Claribel P. Madueña is a Board Certified Legal Specialist in Immigration & Nationality Law. She is a solo practitioner in the Bay Area with more than 10 years of experience representing immigrants and their families. Her practice primarily focuses on family-based immigration and them as irrefutable evidence of continuous physical presence.

This is not individual legal guidance. Consult with an attorney for your case.

See: https://youtu.be/ZqBJEWRkkWw