Wednesday, June 13, 2007

Joseph (not precedential): Reiterating Cancellation of Removal for LPRs

In Joseph v. Gonzales, No. 06-1496 (3d Cir. June 13, 2007) (not precedential), the Third Circuit went through the clear requirements for cancellation of removal for LPRs (legal permanent residents). It is strange the Third Circuit had to do this because the requirements are pretty well-established at this point. It turns out the IJ and BIA made a mistake, but the result comes out the same because the immigrant had a problem with a different requirement.

Cancellation of removal for LPRs is a way for an extremely limited number of people who properly obtained legal status in the US as green card holders to avoid deportation. It is extremely controversial that Congress does not even allow an IJ to consider how wonderful someone is in most situations as a way to avoid deportation. For those who have green cards but now face potential deportation (for example for some types of crimes), Congress decided to prevent an IJ from considering how great the person is except if (1) the person was lawfully admitted for permanent residence for at least five years, (2) the person continuously resided in the US in any status for seven years, and (3) the person did not commit an aggravated felony.

Congress also created a harsh rule that the continuous residence requirement (the second requirement) faces the stop-time rule -- once a certain event happens, the person cannot continue to accrue time even if he is continuously residing in the US for many years afterwards. One event that stops the clock is committing a drug offense (as in this case).

The IJ and BIA mistakenly thought they could invoke the stop-time rule for requirement #1 (amount of time since lawful admission). The law is clear, though, that the stop-time rule does not apply for requirement #1. This rule is so clear that the government before the Third Circuit even conceded that the IJ and BIA messed it up.

The Third Circuit affirmed the ruling that the immigrant could not seek cancellation of removal (regardless of how many great qualities he might have) because he did not satisfy the second requirement, which is impacted by the stop-time rule. He only had around 5 years of continuous residence when he committed the drug crime, so he did not have at least 7 years. He is not allowed to use the additional 9 years he has continued to reside in the US after he committed the drug-related crime.

What is especially harsh is this rule means wide categories of immigrants do not even have a chance to show what great people they are. So even if the person was an amazing guy who rescued dozens of people's lives and invented all sorts of life-saving devices, the immigration judge has no power under any circumstances to consider that to let him avoid deportation. Sometimes the most inflexible rules result in the worst situations.


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