The Department of Homeland Security sought to deport a woman from a South American country. She had been residing in the United States for over a decade, and was living with her elderly parents. Attorney Mitchell J. Cohen represented her in Immigration Court proceedings in front of an Immigration Judge in Miami, Florida. The Immigration and Nationality Act provides a defense from deportation to certain individuals who (1) have been living in the United States for over 10 years at the time of the service of the DHS’s notice to appear in Immigration Court, (2) have been persons of “good moral character” for at least 10 years, (3) whose deportation would result in exceptional and extremely unusual hardship to a U.S. Citizen or Lawful Permanent Resident (“green card” holder) parent, child under 21, or husband or wife. This form of defensive immigration relief is called Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. There are additional qualifying / disqualifying criteria as well. A final decision approving the application means that the removal proceedings are cancelled, and that the respondent (the immigration court equivalent of a “defendant”) is granted Lawful Permanent Residence in the United States. The law provides for an annual nationwide cap of 4,000 for cancellation of removal for nonpermanent residents grants. Due to the law’s stringent criteria and limits on the number of these applications that may be approved annually, an individual in removal proceedings faces big hurdles in winning this type of defensive application.
Attorney Cohen presented evidence that his client’s presence in the United States was indispensable for the mental and physical well-being of her parents, both of whom were suffering from serious medical conditions, including heart-bypass surgery. The Immigration Judge took into evidence detailed statements from the parents’ physicians and from a psychologist who evaluated the parents. The doctors detailed the infirmities that the parents suffered from, the care that the daughter was providing, and the poor prognosis for the parents if their daughter were to be removed from the United States. The psychologist, a specialist in the field of health-psychology, detailed the emotional dependence that the parents on their daughter, that coupled with their emotional fragility, predicted that their daughter’s deportation would likely result on in profound psychological and emotional distress for the parents. Additional testimonial and documentary evidence was considered by the Immigration Court in Miami, including but not limited to poor conditions in client’s native country, client’s history of filing and paying federal income taxes and other evidence of her good moral character.
OUTCOME: Cancellation of Removal GRANTED, and client issued a permanent resident card. The government did not appeal the decision.
COHEN’S TIP #1: There are several forms of cancellation of removal for nonpermanent residents. The law provides that certain victims and former victims of domestic violence at the hands of U.S. Citizens or permanent residents may apply for “VAWA Special Rule Cancellation of Removal.” This form of deportation relief has some of the criteria relaxed, such as the physical presence requirement (only 3 years needed), and the hardship requirement (only “extreme hardship” need to be shown, instead of the more onerous “exceptional and extremely unusual hardship”). Furthermore, an applicant under this section may qualify under this section by showing that he himself would suffer extreme hardship if deported (even in the absence of extreme hardship to a qualifying relative, if any).
COHEN’S TIP #2: Get your taxes in order. The Immigration Judge as a rule take a very dim view of individuals who they perceive to be tax cheats, therefore it is important to demonstrate to the Immigration Judge that you have complied with U.S. tax laws. I advise my clients as early as possible in the process to see a competent Certified Public Accountant.
COHEN’S TIP #3: The requisite hardship must be shown under 2 scenarios. (1) What would happen to the qualifying relative if you were deported and the relative remained in the United States, and (2) What would happen if the relative joined you outside of the United States. The Immigration Judge will deny the application if he finds that the relative would be “ok” if he or she joined you back in your country. Many attorneys neglect to address this critical aspect of the case, with tragic results for their clients.
COHEN’S TIP #4: Expert witnesses. I am a big proponent of expert witnesses. Expert witnesses often need to be educated on what issues are important to the Immigration Judge, so that their reports and/or testimony can effectively address the important questions that are in front of the court. Effective expert witness testimony and reports can often mean the difference between winning and losing a case.
This article is general in nature and should not be construed as legal advice. Need an immigration lawyer? Call the Law Offices of Mitchell J. Cohen, P.A. at (954) 457-1941 (Hallandale Beach Immigration Office) or (239) 931-6558 (for Lee County, Fort Myers residents).
