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Aging-Out Children and Cancellation of Removal

September 17, 2020

Author: USA Immigration lawyer Alena Shautsova

At the law office of Alena Shautsova, we help our clients to use complicated US Immigration laws to achieve their Immigration goals: the US immigration law governing one’s case and affecting one’s life in the US, can be extremely complicated and not obvious. A times, an “obvious” assumption may  actually be disputed by various Immigration bodies controlling one’s case: Immigration Judge, Board of Immigration Appeals, or a prosecutor. Consider this example that deals with aging out children and cancellation of removal.

Cancellation of removal for non-permanent resident is a relief available to some persons who have accumulated 10 years of continuous presence in the US, possess good moral character, and can demonstrate that their removal would result in extreme hardship to their qualifying relatives. A qualifying relative for the purposes of cancellation of removal can be a USC or LPR, spouse, parent or a child (under 21 years old).  To learn more about qualifications for cancellation of removal, please visit our blog: Cancellation of Removal: https://www.shautsova.com/law-publications/simplified-eligibility-requirements-cancellation-removal.html

Imagine that a person, who is not married and who does not have parents in the USA,  has a US citizen child. That child, is the person’s only qualifying relative for the purposes of cancellation of removal. Further, by now, almost everyone knows that cases take a very long time to process in US Immigration courts. It takes even longer to get a final result in an Immigration case for a  relief in the form of cancellation of removal. Will a person who filed for cancellation of removal while the child was under 21, but whose child turned 21 while the case was pending, be still eligible for cancellation or removal? This is an important question one Federal Court gave an answer to in Martinez-Perez v. Barr, No. 18-9573, (Ca. 10th Cir, Jan. 17, 2020).

In Martinez-Perez, respondent-father submitted his application for cancellation of removal well before his daughter’s 21st birthday. In fact his daughter was only 16years old. But, as the fate and the court had it, Mr. Martinez’ final hearing was scheduled about six years later, when his daughter turned 21 years old. Mr. Martinez’ as such, seemed to have lost his eligibility for cancellation of removal. So ruled the Immigration Judge, and the Board of Immigration Appeals. The issue here was, of course, that the statute or the law regarding qualifications for cancellation of removal, is written so that it is not clear, what it actually means: shall the hardship be established at the time of the final decision, or at the time of the application? Imagine that there are two identical cases A and B. Both A and B’s children are under 21 at the time they file for the cancellation of removal. But A’s case is decided within 1 year, and B’s case is postponed for 8 years, without his request, and his child turns 21 before the decision is made…

After careful analysis, the Court came to a conclusion that if an immigrant suffered an unfair delay that resulted in violation of his/her due process rights, he, may qualify for the relief nevertheless. It does not mean, that in every case of aging out child, an immigrant may win the argument that his/her application should nevertheless be granted. But it does give hope for the cases stuck in the processing backlog.

As you can see, you never “know” how a case may turn out… If you need help with your Immigration case, please call to schedule a consultation at  917-885-2261.

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