Relief From Deportation Cancellation Of Removal: Good Moral Character
Author: Deportation attorney Alena Shautsova
Cancellation of removal is an application for green card before an Immigration judge that can be filed by either a permanent resident or an “undocumented” person, a person with no status at all, in certain situations.
The way this process works is that first a person has to demonstrate that he/she statutory qualifies for the relief. In other words, a person has to demonstrate that he/she has a situation that allows him/her to apply for the cancellation of removal. Then, an Immigration judge will determine if all the qualifications are met and if a person deserves the relief. So, it is not enough to show that you can file for cancelation of removal. For example, Jose is in removal proceedings and would like to apply for cancellation of removal for non-permanent residents. He has to demonstrate that he continuously resided in the United States for 10 years, has been a person of good moral character, has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a(5); and can establish that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. Jose has 2 young sons who are US citizens, he has not been convicted of any crime, and has lived in the United States for 15 years. For more information of the continuous residence requirement, please read: Continuous Presence For Cancellation Of Removal For Non-Permanent Residents And EWI.
Let’s assume that Jose can submit his application. But an application by itself is not enough for Jose to receive a green card. Now, he also has to show that he deserves the chance. The judge has to exercise a positive discretion and rule that Jose deserves the relief or a green card.
It is impossible to achieve a positive decision if a person lacks good moral character. The first step to determine if a person can be found to be lacking a good moral character, is to check if a person has been convicted of certain criminal acts. If a person was never convicted, there might be situations, when a person admitted to have committed a criminal act. Also, under the Immigration law, a person may be found inadmissible if the government has a reason to believe that a person is an illicit drug trafficker. No actual conviction is necessary in such a case. So, let’s say Jose was never convicted of drug trafficking, but he was involved in a big drug trafficking case and actually admitted, as part of his witness testimony that he participated in importing of drugs. In such a situation, Jose will not be able to receive a green card trough cancellation of removal, because admission equals conviction. But what if Jose never admitted, and the government only suspected him to be involved? Then, the Board of Immigration Appeals ruled, Jose may still have a chance! (Unpublished BIA decision holds a reasonable interpretation of the “conviction or admission” phrase in INA §101(f)(3) is that it limits application of the statute to convictions or admissions, and finds respondent is not barred from a finding of good moral character. (Matter of - , 1/30/17)
Immigration law provides instances when a person is found to lack good moral character. However, there is a “catch-all” provision, at the end of the relevant law section that states “[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” 8 U.S.C. § 1101(f) (2006). It means that an Immigration Judge would have to make factual findings as to lack of good moral character taking all relevant facts into consideration. What it means is that someone like Jose would have to persuade the judge that he deserves a chance, and that is where a good lawyer can help him...