06 November 2006

After Sixteen Years in the United States Illegally, The Husband/Father and Wife/Mother are now Lawful Permanent Residents

On Friday, November 3, 2006, Joseph G. Cella, Esq. prevailed in an application for Cancellation of Removal for Non-Permanent Residents in Immigration Court, Newark, New Jersey.

The primary Respondent, a male native and citizen of India, entered the United States with an H-1b1 visa in 1989, and stayed beyond his permitted time. His wife, entered sometime later without a visa, and also remained in the United States. The two were subsequently married, and had a daughter, age seven years, and a son, age 5 years.

In response to the couple having filed applications for political asylum, Immigration and Customs Enforcement, (I.C.E.), charged both with being removable as overstays.

After retaining Cella & Associates to defend them in Immigration Court, their asylum applications were withdrawn, and applications for Cancellation of Removal for Non-Permanent Residents was prepared and filed.

INA ? 240(b), authorizes Immigration Judges to ?cancel the removal? of certain non-permanent residents, who are inadmissible or removable/deportable from the United States, if the alien: (1) has not been convicted of an aggravated felony; (2) has continuously resided in the United States for not less than ten years; (3) has a permanent resident or U.S. Citizen parent, souse or child, to whom the alien’s removal would cause exceptional and extremely unusual hardship, and (4) is a person of good moral character. It should be noted that Cancellation of Removal for Non-Permanent Residents under INA ?240(b) has a much higher standard of hardship than Cancellation of Removal for Certain Permanent Residents under INA ?240(a).

In evaluating such applications, the Immigration Judges will look to issues of moral character, the basis of the charge of removability, family members in the United States, level of hardship, and will often weigh the positive against the negative equities.

In the case at hand, it was uncontested that the Respondents had continuously resided in the United States for well over ten years. It was also uncontested that the Respondents were the parents of two U.S. citizen children.

Moreover, with regard to establishing ?exceptional and extremely unusual hardship?, the Respondents’ daughter had been born with a genetic condition, which severely affected her growth, respiration, and functionality, while the son, at age five years, appears to be a fully normal child.

In putting the case together, Cella was able to secure documentation and case reviews from hospitals and doctors in India, establishing that at the present time, the medical establishment in India is unable to provide the level of medial care, treatment and therapy that the daughter is receiving in the United States. Further documentation was secured and submitted which confirmed that India would not be able to provide the daughter with the special schooling, transportation, physical and occupational therapy, and general support services that she is receiving in the United States.

As a result of the applications and supporting documents submitted to the Immigration Court and Immigration and Customs Enforcement, (I.C.E.), the Immigration Judge, with the agreement of the I.C.E. Trial Attorney, took the unusual step of finding that the requisite level of hardship had been met, prior to any testimony having been taken.

However, there still remained the issue of good moral character. Although neither the husband nor wife had ever been arrested for any offense, the husband had previously entered into what the Service believed to have been an immigration marriage. Although immigration applications had been filed, the couple never attended their interview.

However, after relevant legislation and case law was reviewed and discussed, it was decided that the husband had never actually given false testimony, which would have rendered ineligible for the relief sought.

As a result, the husband and wife are now lawful permanent residents, and their children are able to continue to live with their parents in the United States.

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