Cancellation of Removal

Criminal Immigration Attorney

Illegal immigrants that are placed in deportation proceedings may seek relief or protection through a number of forms, including but to limited to:

  • Asylum;
  • Adjustment of Status;
  • Voluntary Departure;
  • Cancellation of Removal;
  • Waivers of Inadmissibility;
  • Suspension of Deportation; and
  • Cancellation of Removal.

Cancellation of Removal non LPR

The U.S. Department of Justice establishes that long-term non-lawful permanent residents (NPR) may be eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (INA).

To be eligible for cancellation of removal and an adjustment of status to LPR, a NPR must demonstrate:

  • To have been physically present in the United States for a continuous period of 10 years prior to receiving the Notice to Appear;
  • To have been a person of good moral character during the 10 year period;
  • To have not been convicted of a criminal offense under § 212(a)(2), § 237(a)(2) or § 237(a)(3) of the INA, and
  • His/her U.S. citizen or lawful permanent resident family members would suffer an exceptional and extremely unusual hardship if the alien is removed.

Alternatively, a NPR can qualify if demonstrates that:

  • The alien or the alien’s child was battered or subjected to extreme cruelty by the alien’s U.S. citizen or lawful permanent resident spouse or parent;
  • The alien maintained a continuous physical presence in the United States for 3 years prior to receiving the Notice to Appear;
  • The alien has been a person of good moral character for the 3 years period
  • The alien is not inadmissible under § 212(a)(2)-(3) of the INA or is not deportable under § 237(a)(1)(G), (2)-(4) of the INA
  • The alien has not been convicted of an aggravated felony, and
  • The alien’s removal would result in extreme hardship to the alien or the alien’s child who is the child of a U.S. citizen or lawful permanent resident, or
  • The alien is a child whose removal would result in an extreme hardship to the alien or the alien’s parent

The relief is very discretionary. The standard of “exceptional and extremely unusual hardship” is very hard to demonstrate unless there are elements such as a severe medical condition faced by the qualifying relative. Moreover, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 set an annual cap on the number of Cancellation of Removal cases permitted each year.

Moreover, the following categories of immigrants are not eligible for cancellation of removal under section 240A(b)(1) of the INA if you:

  • Entered the U.S. as a crewman after June 30, 1964;
  • Were admitted to the U.S. as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section 212(e) of the INA;
  • Were admitted to the U.S. as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(e) of the INA, but have neither full- filled nor obtained a waiver of that requirement;
  • Are an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under section 237(a)(4) of the INA;
  • Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or
  • Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, whose removal has previously been cancelled under section 240A of the INA.

CANCELLATION OF REMOVAL LPR

Cancellation of removal is also available to certain lawful permanent residents (LPR) that are convicted of one of more crimes involving moral turpitude.

To qualify for cancellation of removal, an LPR must demonstrate:

  • To have been a LPR for at least 5 years at the time the application is filed;
  • Prior to service of the Notice to Appear, or prior to committing a criminal or related offense referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing a security or related offense referred to in section 237(a)(4) of the INA, to have had at least 7 years continuous residence in the United States after having been lawfully admitted in any status; and
  • To have not been convicted of an aggravated felony.

The relief is very discretionary. The standard of “exceptional and extremely unusual hardship” is very hard to demonstrate unless there are elements such as a severe medical condition faced by the qualifying relative. Moreover, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 set an annual cap on the number of Cancellation of Removal cases permitted each year.

How to Apply for Cancellation of Removal with an Immigration Court

An NPR must file Form EOIR-42B while LPR must file Form EOIR-42A, fully and accurately. The form must be filed with the immigration Court where the alien's case is pending. Aliens must pay the filing and biometrics fees and comply with the Department of Homeland Security (DHS) instructions for providing biometric and biographic information to U.S. Citizenship & Immigration Services (USCIS). It’s essential to serve a copy of your application on the Assistant Chief Counsel for the DHS, U.S. Immigration and Customs Enforcement (ICE), and you must file your application with the appropriate Immigration Court.

If relief is granted, the removal order will not be effective and you will be a LPR. Nevertheless, meeting the requirements can be difficult. If you think that you could be eligible for Cancellation of Removal, talk to a qualified criminal immigration attorney.

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