HELP! CANCELLATION OF REMOVAL QUESTION!!

[NJATTORNEY]

Can an LPR get 212(c) waiver AND cancellation of removal in removal proceeings for a crime of moral turpitude, not aggravated felony? Can the LPR acquire 7 years residency for cancellation of removal AFTER committing the crime (stop-time rule)? For example, LPR becomes resident in 1986, commits crime in 1989, is convicted in 1991, and gets stopped after trying to come here from overseas visit in 2005. Please advise.

[NJATTORNEY]

Can an LPR get 212(c) waiver AND cancellation of removal in removal proceeings for a crime of moral turpitude, not aggravated felony? Can the LPR acquire 7 years residency for cancellation of removal AFTER committing the crime (stop-time rule)? For example, LPR becomes resident in 1986, commits crime in 1989, is convicted in 1991, and gets stopped after trying to come here from overseas visit in 2005. Please advise.

[Antifascist1]

You better consult with immigration attorney.

[deadpledge]

An alien who was convicted, as opposed to someone who has pled guilty, is generally ineligible for 212(c) waiver. See Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. 2003).
As far as the continuous presence requirement of C.R. is concerned, the current jurisprudence seems to hold that an LPR who commits a crime of moral turpitude before s/he has accrued 7 years residence will never be eligible for C.R. This stop time rule is sb/t the Petty offense exception. In Mater of Deana-Romo, the BIA held that a petty offense does not render one inadmissible and therefore it does not stop the accrual of continuous presence.

[NJATTORNEY]

That is what I thought. The LPR plead guilty so I used 212(c) waiver, but was unsure of the 7 year residency for cancellation of removal. I have heard other attorneys say you hould argue the 7 years can be accumulated AFTER the crime was committed or argue that the 1996 act shouldn't be retroactive so you don't need to aquire 7 years before the crime. I just didn't know if there was any caselaw on point about this.

[deadpledge]

There is a 1999 BIA case right on point. See Matter of Perez, 22 I&N Dec. 689 (BIA 1999)(holding that Congress intended retroactive application (and therefore the proposition that one who commits CMT before accrual of the 7 years residence is permanently ineligible for CR)) Indeed, as you have pointed out, some commentators have suggested that where the offense at issue pre-dated April 1, 1997, the respondent should argue that the “commission of offense” part of the clock-stopping rule should not be applied retroactively to such a case. As far as this school of argument is concerned, you may want to consult Henry v. Ashcroft, 175 F.Supp.2d 688 (SDNY 2001). The case, to me, is of dubious authority, but maybe a citecheck will lead you to other more convincing authorities.