Cancellation of Removal
Cancellation of Removal for Lawful Permanent Residents
Lawful permanent residents of the United States may be placed in immigration proceedings due to certain criminal convictions that leave them inadmissible or deportable from the United States. LPRs convicted of aggravated felonies are entirely precluded from cancellation relief.
Pursuant to INA §240A(a), cancellation is available for any LPR who—1) Has been an LPR for not less than five years; and
2) Has resided in the United States for not less than seven years in any status; and
3) Has not been convicted of an aggravated felony.
Please note the “stop-time” rule at Sec. 240A(d) that stops a lawful permanent resident from accruing the seven years residence once they are served with a Notice to Appear or when they have committed a crime that makes them deportable and/or inadmissible. ““
The application form for LPR-based Cancellation of Removal is the EOIR-42A.
Cancellation of Removal for Non-Permanent Residents
Pursuant to INA §240A(b), cancellation is available to a non-permanent resident of the United States in any immigration status who–
1) Has continuously resided in the United States for at least ten years; and
2) Has been a person of good moral character throughout this time; and
3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
4) Establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a United States citizen or legal permanent resident.
The application form for non-LPR-based Cancellation of Removal is the EOIR-42B.
However, even if you meet all of the basic requirements, the immigration judge still has a lot freedom (“discretion”) to decide whether or not to approve an application for cancellation. Therefore, it is important to make clear to the immigration judge that you are honest, sincere, and really deserve to be allowed to stay in the U.S. and receive a green card.
A big part of the process of convincing the judge is providing as much evidence as possible to show that you meet the basic requirements and also “deserve” the benefits of cancellation. But if there is something about your case that you think makes you ineligible or might make the judge decide not to exercise his or her freedom in your favor, you should definitely see a lawyer. (It’s a good idea to see a lawyer in any case, for help preparing a complete application and set of documents.)
Nationwide, immigration judges can approve only 4,000 cancellation applications per year from non-LPRs (people without green cards). The cap is often reached very quickly. This means that even if you appear to have an approvable cancellation application, the immigration judge will not be able to make a decision on your application until a “number” (in essence, a green card) becomes available again.
Meeting the Ten Years’ U.S. Residence Requirement
To qualify for non-LPR cancellation, you must be able to show that you have been continuously physically present for the ten years immediately before the date that you apply for cancellation. (There’s an exception if you have completed two years of active service in the U.S. armed forces, in which case those two years alone are enough to meet the time requirements for non-LPR cancellation.)
The date of your arrival starts the ten-year “clock.” The clock stops when you receive a Notice to Appear in immigration court, commit certain types of crimes, or have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days. There are also other ways that the clock can be stopped, such as leaving the U.S. under a “voluntary departure order.”
Testimony and written declarations from you and other people who know you can be enough to show ten years of residence. However, as is always the case, if you have documentary evidence of your U.S. residence, such as rent receipts, credit card statements, pay stubs, and so on, you should probably provide it to the court.
Meeting the “Qualifying Relative” Requirement
To qualify for cancellation, the undocumented immigrant must have a relative who is his or her “spouse, parent, or child” and “is a citizen of the U.S. or an alien lawfully admitted for permanent residence.” This comes from the Immigration and Nationality Act (I.N.A.) Section 240A(b)(1)(D).
Meeting the “Exceptional and Extremely Unusual Hardship” Requirement
Every removal (deportation) causes hardship. To qualify for non-LPR cancellation, however, the hardship to the relative must be “exceptional and extremely unusual.” The distinction between “hardship” and “exceptional and extremely unusual” is critical.
To be approved for non-LPR cancellation, it is not enough to show that a U.S. citizen or LPR relative would suffer financially, emotionally, and physically. Instead, there must be proof that the qualifying relative would suffer to a degree that goes above and beyond the type of suffering that would normally be expected when a close relative is deported.
For example, evidence of a minor child’s severe illness and the lack of available medical care in the undocumented immigrant’s home country might be enough. Evidence of a long history of living in the U.S., children who do not speak the language of the country to which you would be removed, and no support structure to rely on in your home country, might also be enough.
Meeting the “Good Moral Character” Requirement
An immigration judge will deny an application for non-LPR cancellation if the applicant does not have “good moral character”. The judge will decide that the applicant does not have good moral character if the law specifically says that the applicant cannot have good moral character (because, for example, he or she is a “habitual drunkard”) or if the judge decides that there are other “discretionary factors” indicating that the applicant isn’t a “good person.”
There are many reasons in the law for a judge to find that an applicant for non-LPR cancellation does not have good moral character. So, if you think that there are any negative facts in your case, such as criminal convictions, that might make you ineligible for non-LPR cancellation, talk to an attorney.