A lawful permanent resident i.e. someone who has a “green card”, may be subject to deportation for commission of criminal acts. However, the person may be allowed to remain in the United States if cancellation of removal for lawful permanent residents is granted by an Immigration Judge. There are three main requirements to qualify for the waiver, called Cancellation of Removal for Certain Permanent Residents. First, the non-citizen must have been lawfully admitted for permanent residence for at least 5 years; Secondly, there must be proof of residence in the United States continuously for 7 years after having been admitted; and Thirdly, the resident must not have been convicted of an aggravated felony.
Cancellation of Removal for Lawful Permanent Residents is Discretionary
If these three requirements are met, granting the waiver becomes a matter of discretion for the judge. In other words, the judge has to review the type and nature of the crimes and weigh positive and negative factors, or equities, in order to determine if a person should be given a second chance to remain in the United States.
It is important to note that for immigration purposes, even a “no contest” plea is considered a conviction.
When the permanent resident presents his or her case, he should show remorse for criminal conduct, and that efforts have been made toward rehabilitation. The judge will consider such equities as payment of federal income taxes and child support, ties to the community such as being involved in charitable organizations, long term residence, evidence surrounding the criminal act and the period of time that has elapsed since the criminal act(s).
Possession of Marijuana and Cancellation of Removal for Lawful Permanent Residents
Take for example a lawful permanent resident who is convicted of possession of less than 20 grams of marijuana. If the person has left the country and is detained upon returning, the person may be considered an “arriving alien”, and as such, would be under mandatory detention. In other words, although the person is a lawful permanent resident, this type of crime, as well as others, could present a situation where detention is required until and unless the resident applies for relief such as cancellation of removal, and a final hearing before a judge is held.
Although drug charges are taken seriously by immigration officials, the law recognizes that in some situations a person should not be deported. The court wants to know what kind of person this is. Was this a one-time occurrence, or is it likely that the person will commit more crimes. Where does the person’s family live, and if they are in the US, do they have legal status?
Based on these factors, the judge may allow a person to remain in the US.
For a more detailed description of cancellation of removal for lawful permanent residents and how a person can wind up in this situation, see our blog, “Immigrant Profiles No. 1” at: http://www.bradentonimmigrationlawyers.com/cancellation-of-removal/cancellation-of-removal-immigrant-profile-no-1