American Right to Family Act

To amend section 240A of the Immigration and Nationality Act to provide for cancellation of removal and temporary resident status for certain parents of citizens of the United States, and for other purposes. 1. Short title This Act may be cited as the American Right to Family Act 2. Cancellation of removal and temporary resident status for certain long-Term resident parents Section 240A of the Immigration and Nationality Act ( 8 U.S.C. 1229b (f) Cancellation of removal and temporary resident status for certain long-Term resident parents (1) In general Notwithstanding any other provision of law, the Secretary of Homeland Security or the Attorney General shall cancel the removal of, and adjust to the status of an alien having lawful temporary residence, an alien who is inadmissible or deportable from the United States if— (A) the alien— (i) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of the alien’s application; (ii) subject to paragraph (7), was removed, deported, or permitted to depart voluntarily from the United States after having been physically present in the United States for a continuous period of not less than 10 years; (iii) has deferred action pursuant to the Deferred Action for Childhood Arrivals policy announced by the Secretary of Homeland Security on June 15, 2012; or (iv) would have been eligible for a grant of deferred action pursuant to such policy, if the memorandum announcing the policy were fully in effect since the date issued; (B) the alien is the parent of a son or daughter who— (i) is a citizen or national of the United States; or (ii) initially entered the United States while under 16 years of age and has been continuously physically present in the United States since such entry; and (C) the alien— (i) is not inadmissible under paragraph (1), (6)(E), (6)(G), (8), or (10) of section 212(a); (ii) has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and (iii) is not barred from adjustment of status under this subsection based on the criminal and national security grounds described under paragraph (3), subject to the provisions of such paragraph. (2) Determination of continuous presence (A) Effect of notice to appear Any period of continuous physical presence in the United States of an alien who applies for temporary resident status under this subsection shall not terminate when the alien is served a notice to appear under section 239(a). (B) Treatment of certain breaks in presence or residence (i) In general Except as provided in clauses (ii) and (iii), an alien shall be considered to have failed to maintain continuous physical presence in the United States under this subsection if the alien has departed from the United States for any period exceeding 90 days or for any periods, in the aggregate, exceeding 180 days. (ii) Extensions for extenuating circumstances The Secretary may extend the time period described in clause (i) for an alien who demonstrates that the failure to timely return to the United States was due to extenuating circumstances beyond the alien’s control, including the serious illness of the alien, or death or serious illness of a parent, grandparent, sibling, or child of the alien. (iii) Travel authorized by the Secretary Any period of travel outside of the United States by an alien that was authorized by the Secretary of Homeland Security may not be counted toward any period of departure from the United States under clause (i). (3) Criminal and national security bars (A) Grounds of ineligibility Except as provided in subparagraphs (B) and (C), an alien is ineligible for cancellation of removal and adjustment of status under this subsection if any of the following apply: (i) The alien is inadmissible under paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act. (ii) Excluding any offense under State law for which an essential element is the alien’s immigration status, and any minor traffic offense, the alien has been convicted of— (I) any felony offense; (II) three or more misdemeanor offenses (excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia which is no longer prosecutable in the State in which the conviction was entered, and any offense involving civil disobedience without violence) not occurring on the same date, and not arising out of the same act, omission, or scheme of misconduct; or (III) a misdemeanor offense of domestic violence, unless the alien demonstrates that such crime is related to the alien having been— (aa) a victim of domestic violence, sexual assault, stalking, child abuse or neglect, abuse or neglect in later life, or human trafficking; (bb) battered or subjected to extreme cruelty; or (cc) a victim of criminal activity described in section 101(a)(15)(U)(iii). (B) Treatment of certain offense involving driving Notwithstanding section 101(h), any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances shall only be considered for purposes of this subsection if— (i) such crime involves personal injury or death to another; or (ii) the alien has been convicted of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances more than once during the 10 years immediately preceding the date of the alien’s application. (C) Waivers for certain misdemeanors For humanitarian purposes, family unity, or if otherwise in the public interest, the Secretary may— (i) waive the grounds of inadmissibility under subparagraphs (A), (C), and (D) of section 212(a)(2), unless the conviction forming the basis for inadmissibility would otherwise render the alien ineligible under subparagraph (A)(ii) (subject to clause (ii)); and (ii) for purposes of subclauses (II) and (III) of subparagraph (A)(ii), waive consideration of— (I) one misdemeanor offense if the alien has not been convicted of any offense in the 5-year period preceding the date on which the alien applies for adjustment of status under this subsection; or (II) up to two misdemeanor offenses if the alien has not been convicted of any offense in the 10-year period preceding the date on which the alien applies for adjustment of status under this subsection. (D) Authority to conduct secondary review (i) In general Notwithstanding an alien’s eligibility for adjustment of status under this subsection, and subject to the procedures described in this subparagraph, the Secretary of Homeland Security or the Attorney General may, as a matter of non-delegable discretion, provisionally deny an application for adjustment of status if the Secretary or the Attorney General, based on clear and convincing evidence, which shall include credible law enforcement information, determines that the alien is described in clause (ii) or (iv). (ii) Public safety An alien is described in this clause if— (I) excluding simple possession of cannabis or cannabis-related paraphernalia, any offense involving cannabis or cannabis-related paraphernalia which is no longer prosecutable in the State in which the conviction was entered, any offense under State law for which an essential element is the alien’s immigration status, any offense involving civil disobedience without violence, and any minor traffic offense, the alien— (aa) has been convicted of a misdemeanor offense punishable by a term of imprisonment of more than 30 days; or (bb) has been adjudicated delinquent in a State or local juvenile court proceeding that resulted in a disposition ordering placement in a secure facility; and (II) the alien poses a significant and continuing threat to public safety related to such conviction or adjudication. (iii) Public safety determination For purposes of clause (ii)(II), the Secretary shall consider the recency of the conviction or adjudication; the length of any imposed sentence or placement; the nature and seriousness of the conviction or adjudication, including whether the elements of the offense include the unlawful possession or use of a deadly weapon to commit an offense or other conduct intended to cause serious bodily injury; and any mitigating factors pertaining to the alien’s role in the commission of the offense. (iv) Gang participation An alien is described in this clause if the alien has, within the 5 years immediately preceding the date of the application, knowingly, willfully, and voluntarily participated in offenses committed by a criminal street gang (as described in subsections (a) and (c) of section 521 of title 18, United States Code) with the intent to promote or further the commission of such offenses. (v) Evidentiary limitation For purposes of clause (iv), allegations of gang membership obtained from a State or Federal in-house or local database, or a network of databases used for the purpose of recording and sharing activities of alleged gang members across law enforcement agencies, shall not establish the participation described in such clause. (vi) Notice (I) In general Prior to rendering a discretionary decision under this subparagraph, the Secretary of Homeland Security or the Attorney General shall provide written notice of the intent to provisionally deny the application to the alien (or the alien’s counsel of record, if any) by certified mail and, if an electronic mail address is provided, by electronic mail (or other form of electronic communication). Such notice shall— (aa) articulate with specificity all grounds for the preliminary determination, including the evidence relied upon to support the determination; and (bb) provide the alien with not less than 90 days to respond. (II) Second notice Not more than 30 days after the issuance of the notice under subclause (I), the Secretary of Homeland Security or the Attorney General shall provide a second written notice that meets the requirements of such clause. (III) Notice not received Notwithstanding any other provision of law, if an applicant provides good cause for not contesting a provisional denial under this paragraph, including a failure to receive notice as required under this subparagraph, the Secretary of Homeland Security or the Attorney General shall, upon a motion filed by the alien, reopen an application for adjustment of status under this subsection and allow the applicant an opportunity to respond, consistent with subclause (I)(bb). (E) Definitions For purposes of this paragraph— (i) the term felony offense (ii) the term misdemeanor offense (iii) the term crime of domestic violence (iv) the terms convicted conviction adjudicated adjudication (4) Work authorization In the case of an alien who has temporary resident status under this subsection, the Secretary of Homeland Security shall authorize the alien to engage in employment in the United States and provide the alien with an employment authorized (5) Terms of status (A) In general Temporary resident status under this subsection shall be valid for a period of 3 years, unless such period is extended or renewed. (B) Renewal In the case of an alien who has temporary resident status under this subsection, the Secretary of Homeland Security shall renew the status in 3-year increments, with no limit on the number of such renewals, if— (i) the alien files a nonfrivolous application for renewal before the date of expiration of the period of stay authorized by the Secretary; and (ii) the Secretary determines that the alien continues to meet the conditions for adjustment of status under this subsection. (C) Automatic extension during pendency of application In the case of an alien who files a nonfrivolous application for renewal before the date of expiration of the period of stay authorized by the Secretary, the alien’s period of temporary resident status and work authorization shall be deemed extended during the pendency of the application. (6) Documents establishing continuous physical presence To establish that an alien has been continuously physically present in the United States, as required under paragraph (1), the alien may submit the following forms of evidence: (A) Passport entries, including admission stamps on the alien’s passport. (B) Any document from the Department of Justice or the Department of Homeland Security noting the alien’s date of entry into the United States. (C) Records from any educational institution the alien has attended in the United States. (D) Employment records of the alien that include the employer’s name and contact information, or other records demonstrating earned income. (E) Records of service from the Uniformed Services. (F) Official records from a religious entity confirming the alien’s participation in a religious ceremony. (G) A birth certificate for a child who was born in the United States. (H) Hospital or medical records showing medical treatment or hospitalization, the name of the medical facility or physician, and the date of the treatment or hospitalization. (I) Automobile license receipts or registration. (J) Deeds, mortgages, or rental agreement contracts. (K) Rent receipts or utility bills bearing the alien’s name or the name of an immediate family member of the alien, and the alien’s address. (L) Tax receipts. (M) Insurance policies. (N) Remittance records, including copies of money order receipts sent in or out of the country. (O) Travel records. (P) Dated bank transactions. (Q) Two or more sworn affidavits from individuals who are not related to the alien who have direct knowledge of the alien’s continuous physical presence in the United States, that contain— (i) the name, address, and telephone number of the affiant; and (ii) the nature and duration of the relationship between the affiant and the alien. (R) Any other evidence determined to be credible by the Secretary of Homeland Security or the Attorney General. (7) Eligibility of removed, deported, or voluntarily departed aliens An alien who was removed, deported, or permitted to depart voluntarily from the United States may apply for relief under this subsection from abroad if the reason for their removal, deportation, or voluntary departure was that the alien— (A) was present in the United States after the expiration of the period of stay authorized by the Secretary of Homeland Security or was present in the United States without being admitted or paroled; or (B) committed an offense, if that offense does not render the alien ineligible for relief under this subsection pursuant to the provisions of paragraph (3). (8) Construction (A) In general A denial of cancellation of removal under any other provision of this section shall not prejudice a decision under this subsection. An alien’s eligibility for temporary resident status under this subsection shall not preclude the alien from seeking any status under any other provision of law for which the alien may otherwise be eligible. (B) Determination of continuous presence and residence Subsection (d) shall not apply to cancellation of removal or adjustment of status under this subsection. (C) Annual limitation Subsection (e) shall not apply to cancellation of removal or adjustment of status under this subsection. .

Summary: American Right to Family Act This bill requires the cancellation of removal and adjustment of status for an alien parent who meets certain requirements. To be eligible for cancellation of removal and adjustment of status under this bill, an alien must (1) meet certain residency-related requirements, such as having been physically present in the United States for at least 10 years or having received a deferral of removal under the Deferred Action for Childhood Arrivals policy; (2) be a parent of either a U.S. national or an individual who first entered the United States under 16 years of age and has been continuously present in the United States since entry; and (3) not be barred from receiving certain immigration benefits on specified grounds, including certain grounds related to criminal conduct or national security. The Department of Homeland Security may waive certain crime-related grounds of inadmissibility for reasons related to the public interest, subject to various limitations. An alien whose removal is canceled under this bill shall be adjusted to temporary resident status for a three-year period, which may be renewed. Furthermore, a cancellation for removal or adjustment of status under this bill shall not count toward certain annual numerical limitations on such actions.