Cancellation of Removal

 by Kevin Leeper 0 comments

Cancellation of Removal is a defense to deportation available only in Immigration Court. A foreign national cannot apply for Cancellation of Removal if you are not in removal proceedings.

Cancellation of Removal for non-Lawful Permanent Residents (LPRs)

Successful Cancellation of Removal for non-LPRs results in lawful permanent resident, or “green card,” status for the applicant.

In order to qualify for Cancellation of Removal as a non-LPR, one must be in removal proceedings, because they are deportable or inadmissible, and be able to demonstrate:

  • Continuous, physical presence in the U.S. for at least 10 years;
  • Good moral character for 10 years;
  • That they have not been convicted of any crimes listed in INA §§ 212(a), 237(a)(2) or 237(a)(3);
  • That deporting them would cause “exceptional and extremely unusual hardship” to their U.S. citizen or LPR spouse, parent or child.

Statutorily Ineligible

Foreign nationals who have previously received cancellation of removal, suspension of deportation or relief under § 212(c) are not eligible for cancellation of removal. Additionally, those who have persecuted others or are removable on anti-terrorism grounds are not eligible. Crewmen who entered the U.S. after June 30, 1964 and certain “J” visa exchange visitors are, likewise, ineligible.

Continuous, Physical Presence in the U.S. for at least 10 years

The ten year clock stops on the date listed on the Notice To Appear (NTA) and any time after that cannot be counted toward 10 year continuous, physical presence. One departure from the U.S. for 90 days or more stops continuous, physical presence. Additionally, total absences from the U.S. of 180 days or more stops continuous, physical presence. Leaving the U.S. “under threat of deportation” also stops deportation, regardless of the length of departure.

Good Moral Character for 10 years

The 10 year clock for good moral character is different than the continuous, physical presence clock. The period of time for good moral character continues until the final decision and is the ten years immediately preceding the decision of the immigration judge, or BIA if the case is appealed.

In order to establish good moral character, the foreign national must pass a two-part test.

  1. They must establish that they are not statutorily barred from showing good moral character based on any of the grounds listed in INA § 101(f).
  2. They must submit evidence of their good moral character for the Immigration Judge to weigh against any evidence to the contrary. Immigration Judges have discretion in these matters.

Criminal Disqualification

See INA §§ 212(a), 237(a)(2) or 237(a)(3) for the list of convictions that may disqualify a candidate for cancellation of removal.

Additionally, conviction of even one crime involving moral turpitude (CIMT) is a bar to non-LPR cancellation, with one exception, if (a) the person has committed only one CIMT, (b) a sentence of six months or less was imposed, and (c) the offense carries a maximum possible sentence of less than one year.

Exceptional and Extremely Unusual Hardship

In order to qualify for non-LPR cancellation of removal, an applicant must also show that deportation would cause “exceptional and extremely unusual hardship” to their U.S. citizen or LPR spouse, child or parent. Hardship to the applicant does not count. Hardship to non-qualifying relatives does not count. However, hardship to the applicant and non-qualifying relatives is relevant in its effect on qualifying relatives. Additionally, the standard requires a showing of hardship that is “substantially” more than the hardship one would suffer from deportation and is limited to “truly exceptional” situations.

The rules for Cancellation of Removal are extremely complex but a qualified immigration attorney can help guide you to your goal.