This is an area of the law in which I have substantial experience, and I think it is beneficial for the community to be aware of potential defenses that individuals may use in immigration court.

The defense that I have been discussing for the past few weeks—“cancellation of removal”—is the most common defense that is used in immigration court.  However, I did not mention in my earlier articles that there are two different types of cancellation of removal.  

The type that I have been describing in the last few weeks is for those persons who are NOT permanent residents.  In other words, a person may apply for the type of cancellation of removal I have written about for the last few weeks even if he or she has no documents in the United States.  Again, the requirements for this type of cancellation of removal are (1) 10 years in the United States; (2) a U.S. citizen or permanent resident parent, spouse, or child; (3) proof that the parent, spouse, or child would suffer una “dificultad extrema, excepcional, y unusual” en caso de deportacion; (4) that the person applying has good moral character; and (5) that the person has no serious offenses on his or her criminal record.

As I also have discussed, it is extremely difficult to win cancellation of removal for non-permanent residents.  Perhaps one in 10 people can actually win.  Additionally, this defense is only available if a person is already in immigration court, and I would NEVER recommend that a person turn him or herself in to immigration to apply for cancellation of removal.

However, the requirements for cancellation of removal for permanent residents—which is a different defense—are much easier to satisfy.  There are only really four requirements:

  1. The person has to have been physically present in the United States—after being admitted in any status—for seven years.
  2. The person has to have been a permanent resident for five years.
  3. The person may not have any “aggravated felonies” on his or her record.
  4. The person must prove to an immigration judge that he or she deserves to stay in the United States.

Perhaps it is very obvious, but the United States can attempt to take away the green card of a permanent resident.  Usually, the Department of Homeland Security of the United States will do this if the person has a serious criminal record, or if there is evidence that he or she has abandoned her permanent resident status.  When this happens, immigration puts the person in immigration court to be deported, just like any person who has no documents.  In other words, this second type of “cancellation of removal”—for permanent residents—is a defense that a permanent resident may use to keep his or her green card even though immigration is trying to take it away and to deport him or her.