Reform that Makes Sense: Part II

Affirmative Cancelation of Removal

Cancelation of Removal provides relief to certain immigrants who are placed in removal proceedings.  To qualify, applicants must have maintained continuous physical presence in the United States for 10 years and they must be people of “good moral character.” In addition, their removal must result in extreme and unusual hardship to a U.S. citizen spouse, parent, or child.

Some criminal convictions will preclude a finding of good moral character. And at present, a person cannot apply for Cancellation unless the government places them in removal proceedings.

Basically, Cancellation of Removal works like this: if an undocumented person is placed in removal proceedings because of some unlawful act, he or she may be allowed to stay in the United States so long as they meet the requirements of the statue.

Cancellation of Removal is great for those who qualify. However, because it is only available as a defense to removal, it leads to the ridiculous result of denying relief to good people with positive equities while granting relief to someone who may have committed past discretions. Consider the following examples:

  • Juana Alvarez is from Mexico. She has lived in the United States without documentation for 12 years. She is married and has two U.S. citizen children. One night, Juana is pulled over and arrested for Driving Under the Influence (DUI). Juana goes to jail and is placed in removal proceedings as a result of her arrest. Juana can apply for Cancellation of Removal because she has maintained continuous physical presence in the U.S. for at least 10 years, she is a person of good moral character, she has no disqualifying criminal convictions, and if she is deported her USC children will suffer extreme and unusual hardship.
  • Barbara Mendoza is also from Mexico. She has lived in the United States without documentation for 12 years. One of her children requires medical attention and neither can speak Spanish. Unlike Juana, Barbara has never been arrested for DUI and she has no additional criminal history. Barbara has paid all of her taxes, she is well respected in her community, and her U.S. citizen children would suffer extreme and unusual hardship if she were removed to Mexico. However, because Barbara has not been placed in removal proceedings, she does not qualify for Cancellation of Removal.

As a result of this absurdity, we must explain to our clients why a neighbor who was arrested for some indiscretion is suddenly working lawfully in the United States while they continue to hide in the shadows despite having never committed a crime.

How can this be fixed? Make Cancellation of Removal available as an affirmative application as well as a defensive one. A very simple solution to a law that is profoundly counterintuitive and yet has very real implications.

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