Cancellation of removal

Cancellation of removal or termination of removal, formerly known as suspension of deportation, under the Immigration and Nationality Act (INA) of the United States is a discretionary form of relief, which is available to certain aliens who have been placed in removal proceedings by the former Immigration and Naturalization Service (INS) or the now Department of Homeland Security (DHS).[1][2] Cancellation of removal is related to waiver of inadmissibility, which is another and separate form of relief under the INA.

Cancellation of removal was designed to replace "suspension of deportation," a form of relief available prior to the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). A different standard for eligibility for cancellation of removal is applied between permanent residents of the United States and nonpermanent residents.[3]

Recipients of a grant of cancellation of removal who are nonpermanent residents become eligible for permanent residency in the United States. Nationals of the United States are statutorily and manifestly exempt from cancellation of removal.[4][5]

Background

The INA, which was enacted by the U.S. Congress in 1952, states that "[t]he term 'alien' means any person not a citizen or national of the United States".[6] The terms "inadmissible aliens" and "deportable aliens" are synonymous in the INA. As such, both classes of these aliens are "removable" from the United States.[2][7] A legal immigrant can either be an "alien" or a "national of the United States," which requires a case-by-case analysis and depends mainly on the number of years he or she has continuously spent in the United States as a lawful permanent resident (i.e., green card holder).[8][5] U.S. Presidents and the U.S. Congress have expressly favored some "legal immigrants"[9] because they were "admitted to the United States" as refugees,[10] i.e., people who escaped from persecution and have no country of permanent residence other than the United States.[1] Removing such legal immigrants (permanent residents) from the United States constitutes a grave international crime,[11][12][9][13][14][15] especially if they qualify as U.S. nationals or have physically and continuously resided in the United States for over 10 years without committing any offense that may trigger removability or inadmissibility.[5][4] Under 8 C.F.R. 239.2, any officer mentioned in 8 C.F.R. 239.1 may sua sponte at any time cancel the removal of any person who turns out to be a U.S. national or any person who is simply not removable under the INA.[16][2]

In February 1995, U.S. President Bill Clinton issued a directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).[9][17]

Prior to April 1, 1997, the effective date of IIRIRA, a form of relief known as "suspension of deportation" was available to certain aliens that were being deported from the United States.[18] Although functionally similar to cancellation of removal, suspension of deportation had a lower eligibility standard and did not distinguish between "permanent residents" of the United States and "nonpermanent residents." To qualify for suspension of deportation, an applicant under the pre-IIRIRA standard was required to demonstrate the following: (1) continuous physical presence in the United States for a period of at least seven years; (2) "good moral character" during that entire period; and (3) that the applicant's deportation from the United States would result in "extreme hardship" to the applicant or any qualifying relative, which was mainly the applicant's spouse, parents, and/or children, who were either citizens or permanent residents of the United States.

Standard for eligibility for cancellation of removal after the 1996 enactment of IIRIRA

Permanent residents of the United States

"The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ...."[8] Such person must be placed in removal proceedings but only after suffering a criminal conviction that renders him or her "removable" from the United States.[2] He or she may also be placed in removal proceedings due to other reasons (e.g., abandoning or relinquishing permanent resident status; staying outside the United States for more than six months; engaging in illegal activities outside the United States, etc).[19] The permanent resident becomes "inadmissible" to the United States in such situations.[2]

A permanent resident convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, within 7 years of his or her continuous presence in the United States is statutorily precluded from relief under both cancellation of removal and waiver of inadmissibility.[1][20] In this regard, INA § 240A(a), 8 U.S.C. § 1229b(a), states that cancellation of removal is available only to a person who: (1) has been a permanent resident of the United States for not less than five years; (2) has resided in the United States continuously for seven years after having been admitted in any status; and (3) has not been convicted of any aggravated felony within that seven years.[3]

Only a legal immigrant (permanent resident), particularly one who was originally "admitted to the United States" as a refugee,[10] is entitled to relief under cancellation of removal and waiver of inadmissibility.[1][2] According to the Board of Immigration Appeals (BIA), such a person in removal proceedings also qualifies for relief under INA § 212(c), 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996), but only if his or her aggravated felony conviction(s) had actually taken place prior to April 1, 1997.[21] It is important to note that in most (but not all) cases, the date the aggravated felony was actually committed stops the clock for the seven years and ten years of "continuous residence or physical presence" in the United States.[22]

Nonpermanent residents

According to INA § 240A(b), 8 U.S.C. § 1229b(b), cancellation of removal and adjustment of status is available to nonpermanent residents who: (1) have continuously resided in the United States for at least ten years; (2) have been people of good moral character during the entire time in the United States; (3) are not otherwise subject to criminal bars arising from a conviction of any crime outlined in 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2), or 8 U.S.C. § 1227(a)(3); and (4) establish that removal would result in "exceptional and extremely unusual hardship" to the nonpermanent residents' spouses, parents, or children, who are either citizens or permanent residents of the United States.[2][23]

See also

References

  1. 1 2 3 4 5 6 7 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the United States, ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  2. 1 2 8 U.S.C. § 1229b (titled "Cancellation of removal; adjustment of status").
  3. 1 2 Ricketts v. Attorney General of the United States, ___ F.3d ___, No. 16-3182, p.2 (3d Cir. July 30, 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); see also 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter...."); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'").
  4. 1 2 3 Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480‐ag, p.6 (2d Cir. Sept. 13, 2018) (case involving a U.S. citizen in removal proceedings); Jaen v. Sessions, ___ F.3d ___, ___, ___, No. 17-1512, pp.6-7, 19 (2d Cir. Aug. 13, 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, ___ F.3d. ___, ___, No. 17-15662, p.10-11 (9th Cir. Aug. 17, 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted); Yith v. Nielsen, ___ F.3d ___, ___, No. 16-15858, p.5-6 (9th Cir. Feb. 7, 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); Gonzalez-Alarcon v. Macias, ___ F.3d ___, No. 16-2263 (10th Cir. Mar. 19, 2018); Hammond v. Sessions, No. 16-3013, p.2-3 (2d Cir. Jan. 29, 2018) ("It is undisputed that Hammond's June 2016 motion to reconsider was untimely because his removal order became final in 2003. . . . Here, reconsideration was available only under the BIA's sua sponte authority. 8 C.F.R. 1003.2(a). Despite this procedural posture, we retain jurisdiction to review Hammond's U.S. [nationality] claim."); accord Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) ("Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a [U.S. national].").
  5. ↑ 8 U.S.C. § 1101(a)(3)
  6. ↑ Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003) ("Only aliens are subject to removal.").
  7. 1 2 8 U.S.C. § 1101(a)(20)
  8. 1 2 3 "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved July 16, 2018. ; see also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.").
  9. 1 2 8 U.S.C. § 1159(a)(1)
  10. ↑ "Deprivation Of Rights Under Color Of Law". U.S. Department of Justice. August 6, 2015. Retrieved August 17, 2018. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  11. ↑ 18 U.S.C. §§ 241–249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Lanier, 123 F.3d 945 (6th Cir. 1997); Hope v. Pelzer, 536 U.S. 730, 736-37 (2002); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006); see also 42 U.S.C. §§ 1981–1985; Ziglar v. Abbasi, 582 U.S. ___ (2017); Lyttle v. United States, 867 F.Supp.2d 1256, 1270 (M.D. Ga. 2012) (case of a U.S.-born citizen deported from the United States by the ICE "as an 'alien who is convicted of an aggravated felony.'").
  12. ↑ "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved July 15, 2018. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  13. ↑ "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. p. 806-7. Retrieved August 8, 2018. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution. . . .
  14. ↑ Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) ("Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences.") (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.").
  15. ↑ Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc).
  16. ↑ Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  17. ↑ Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. . . . These IIRIRA changes became effective on April 1, 1997.").
  18. ↑ 8 U.S.C. § 1101(a)(13)(C); Vartelas v. Holder, 566 U.S. 257, 262 (2012).
  19. ↑ 8 U.S.C. § 1101(a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996."); NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017) ("The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.' In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'").
  20. ↑ Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014).
  21. ↑ 8 U.S.C. § 1229b(d)(1) ("Special rules relating to continuous residence or physical presence"); Pereira v. Sessions, 585 U.S. ___, 138 S.Ct. 2105, 2109 (2018) (Slip Opinion, p.2 note 3); Nguyen v. Sessions, __ F.3d ___, ___, ___, No. 17-70251, pp.2, 6 (9th Cir. Aug. 23, 2018).
  22. ↑ Matter of Ortega-Lopez, 27 I&N Dec. 382, 391-98 (BIA 2018) (unsettled debate over 8 U.S.C. § 1229b(b)(1)(C)).
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