We counsel clients and their family member in how to best to obtain legal status in the U.S. We can assist you in obtaining deferred action or a green card, and counsel you in navigating the turbulent seas that are our current immigration laws here in the U.S.
Given the current state of immigration enforcement in our country, it is rational for undocumented, but otherwise law-abiding migrants to be afraid of being detained and deported from the U.S. But it is imperative that such people educate themselves on possible avenues of defense from deportation. More importantly, such persons should have the name of a trusted immigration attorney on hand so that they or their families can contact the attorney in the event Immigration & Customs Enforcement (“ICE”) arrests them.
This article will cover the most common option for legally defending a deportation, Cancellation of Removal. This option is not an easy one to succeed with, but it is worth mounting for those with long ties in the U.S. Initially, being eligible for cancellation should allow the alien to win a release from ICE detention.
To qualify for a cancellation of removal, the alien must prove four strict requirements [see INA §240A(b)(1)]:
i. have continuously resided in the U.S. for at least 10 years prior to service of the Notice to Appear,
- This ten year period means that the alien was continuously physically present in the U.S.
ii. have good moral character during the 10-year period preceding resolution of the case,
- crimes committed more than 10-years prior to the immigration judges decision cannot be held against the alien’s moral character
iii. have no convictions for crimes under INA §§212(a)(2), 237(a)(2), or 237(a)(3) (which cover a number of crimes such as drug trafficking, human trafficking, prostitution, money laundering and crimes involving moral turpitude),
- the list of crimes that disqualify the alien is long and is complicated because of the differences in criminal statutes from one state to the next.
iv. demonstrate that removal would result in “exceptional and extremely unusual hardship” to one’s U.S. citizen or permanent resident spouse, parent, or child.
- This hardship standard is difficult to satisfy and requires a lot of supporting evidence from the alien’s family.
There is a limit of 4,000 cancellations permitted per year. [see INA §240A(e)]
Though these requirements are high, the benefit in succeeding to show this at immigration court is also high. An alien who wins the case will be granted a green card and become a legal permanent resident.
These requirements are complex and it is highly recommended that the alien consult with a competent immigration attorney to review eligibility.
The Cuban Adjustment Act of 1966 (“CAA”) provides a route to legal permanent residency (“LPR”) for Cubans and their spouses and children through adjustment of status. To qualify for adjustment as the principal applicant, one must satisfy several requirements:
To file, we must prepare -
1. Form I-485, Application to Register Permanent Residence or Adjust Status.
2. The fee for Form I-485
3. Form G-325A, Biographic Information.
4. Form FD-258, Fingerprint Chart.
5. 2 Passport-style Photos.
6. Form I-693, Medical Report.
7. Form I-643, Health and Human Services Statistical Data Sheet.
8. A clearance from the local police jurisdiction for any area in the U.S. where the applicant has lived for six months or longer since his or her 14th birthday.
When the CAA is not an option, Cuban nationals should explore special parole programs with their U.S. Citizen and LPR family members. These family members may be able to file family-based petitions to help their Cuban relatives immigrate to the U.S. For example, under the Cuban Family Reunification Parole Program ("CFRPP"), Cubans with approved family petitions can be paroled into the U.S. and wait here for their priority dates to become current. Once in the U.S., CFRPP allows these individuals to apply for work authorization while they wait for their immigrant visa to become available (or while waiting the one-year to apply for permanent residency under the CAA). A CFRP petitioner must meet these requirements:
Note that on Aug. 23, 2016, the NVC resumed issuing invitations to apply for CFRPP.
The usual bars to adjustment under INA § 245(c) do not apply to CAA applicants. In other words, the following persons can apply: i. Crewmen (entrants under C-1 or D-1 visas), ii. overstays, iii. transit visa entrants, iv. those who have worked without authorization, or v. those who have entered through the Visa Waiver Program.
Proof of Citizenship -
A United States Citizenship and Immigration Services (“USCIS”) memo dated Nov. 17, 2107 set a new policy on determining Cuban citizenship for persons born outside of Cuba to at least one Cuban citizen. The main change is that the individual’s consular certificate documenting the birth must have been formally registered in Cuba with the Cuban Ministry of Justice.
Wet Foot, Dry Foot: Changes to "inspected, admitted or paroled" -
Between 1994 and 2017, the U.S. government operated a policy toward Cuban immigrants known as the Wet-Foot/Dry-Foot policy. This policy was not technically binding on Immigration Courts. Nonetheless, the vast majority of Cuban nationals who arrived “at a place other than a port of entry” benefited from this policy and were deemed eligible for adjustment of status under the CAA. Specifically, “if the Service release[d] from custody an alien who [wa]s an applicant for admission because the alien [wa]s present in the United States without having been admitted,” the Service would treat the alien as having been paroled into the United States. This now defunct Wet-Foot/Dry-Foot policy effectively allowed the majority of Cubans entering the United States to satisfy this requirement for CAA eligibility regardless of the alien’s actual manner of entry.
A qualifying CAA applicant may also seek to adjust the status of her or his non-Cuban spouse or child, regardless of their nationality or place of birth, under §1 of the CAA. The spouse must must reside with the principal applicant and meet all the eligibility criteria for Cuban adjustment listed above. There are exceptions for cases of domestic violence. The qualifying marriage can have occurred before or after the Cuban adjusts.
Dependents cannot adjust before the principal applicant adjusts or if the principal has already naturalized. Dependents can adjust so long as she or he could qualify under the CAA, even in cases where the Cuban spouse or parent had not obtained permanent residency using the CAA.
CAA applicants are exempt from some of the inadmissibility grounds of INA § 212(a), namely:
Do note that other inadmissibility issues relating to crime still apply, including those related to fraud, terrorism and membership in a totalitarian party. Where the applicant has a criminal conviction in Cuba, USCIS requires that a sworn statement be submitted detailing the arrest(s), charge(s), outcome of any proceeding(s) and whether the individual was imprisoned.
CAA applicants who are inadmissible must seek a waiver using Form I-601 under INA § 212(g), (h), or (i), as applicable. Waiver applications should describe in detail the special circumstances of the Cuban applicant and the current political situation in Cuba, as these are factors USCIS takes into account in its determinations.
Cubans who use the CAA to adjust are allowed to return to Cuba without risk to their status. CAA applicants do not need to meet the definition of a refugee. These applicants do not need to express a fear of persecution from the Cuban government in order to qualify for Cuban adjustment. Thus, an applicant can travel back to Cuba without negatively affecting this person’s eligibility for LPR status or ability to naturalize; though applicants must continue to satisfy physical presence and continuous residence requirements.
Though membership in a totalitarian party, like the communist party, can be a reason for denial of adjustment, INA § 212(a)(3)(D) provides exceptions for memberships that: i. was involuntary or where membership was solely when under the age of 16; ii. was by operation of law; iii. was necessary for purposes of obtaining employment, food rations or other essentials of living; or iv. was a past membership which had been terminated at least five years before the date of application for admission. An exception also exists for close relatives of USCs and LPRs for humanitarian purposes, to assure family unity or when it is otherwise in the public interest. If it is determined that the applicant may be inadmissible as a member of the Communist party, USCIS will require a detailed sworn statement explaining this membership.
The CAA grants applicants the benefit of an earlier, rolled-back “admission date.” The final admission date for permanent residence will be either 30 months before the filing of the application or the date of the individual’s last arrival in the United States, whichever date is later. As normal, the individual will be eligible to adjust after five years as a permanent resident. But this rollback benefit enables the individual to qualify for naturalization in a shorter amount of time.
Derivative beneficiaries, such as a non-Cuban spouse or children of the qualifying Cuban applicant, are also granted the benefit this rollback provisions, even if this results in the beneficiary becoming an LPR before the date on which the individual became the Cuban applicant’s spouse or child.