Cancellation of Removal
Cancellation of Removal is a form of relief for Lawful Permanent Residents (LPR) or Certain Non-LPRs in removal (deportation) proceedings. Cancellation of Removal cannot be applied for outside of an immigration court. It only becomes available once an immigrant is served with a Notice to Appear (NTA).
Cancellation of Removal for Lawful Permanent Residents
Lawful Permanent Residents (LPRs) are not immune from removal. The only way to ensure absolute protection is through naturalization.
If an LPR ends up in removal proceedings, he or she can apply to have the removal cancelled if the LPR (1) has been a lawfully permanent resident for five (5) years; (2) has resided continuously in the United States for seven (7) years after having been admitted in any status; and (3) has not been convicted of any aggravated felonies.
Often LPRs in removal proceedings have been referred due to a criminal conviction. As a result, the definition of an aggravated felony can be very important.
Unfortunately, the official definition of an aggravated felony (found at INA §101(a)(43)) does little to establish what it actually is.
Cancellation of Removal for Certain Non-LPRs
Cancellation of Removal for certain Non-LPRs is available to those who (1) have been physically present in the United States for a continuous period of not less than 10 years; (2) has been a person of good moral character; (3) has not been convicted of certain crimes delineated in the statute; and (4) can establish that removal would result in exceptional and extremely unusual hardship to the individual’s spouse, parent, or child who is a U.S. citizen or an LPR. Siblings, aunts, uncles, grandparents and cousins do not count.
The 10 years of continuous presence ends once the Notice to Appear (NTA) is served on an individual. In other words, if an immigrant has been present in the United States for nine (9) years and is served with an NTA, but the immigration court does not hear the matter until two years later, at which time the immigrant has been present for eleven (11) years, the immigration court will still rule as if the immigrant had been present in the United States for nine years, not eleven.
In addition, if an immigrant leaves the United States for more than 90 days, or leaves the United States multiple times and those trips add up to 180 days, the 10 years continuous physical residence will be deemed broken, and the immigrant will not be able to avail him or herself of this relief.
Whether a qualifying spouse, parent, or child will suffer exceptional and extremely unusual hardship is often the most contested aspect of any Cancellation of Removal case. Whether or not a relative’s suffering arises to the level of extreme or exceptionally unusual hardship is highly subjective and decisions can vary wildly. Consistency in Cancellation of Removal decisions should not be expected.
However, hardship can be considered in the aggregate, or the totality of smaller hardships in one’s life can add up to extreme and exceptionally unusual hardship, so be sure to leave no stone unturned in your evaluation of hardship possibilities. It is not necessary that the relative be at death’s door to argue hardship successfully.
Likewise, good moral character can also be unpredictable. Examples of situations where one may be found not to have good moral character include those where one has (1) been convicted of a crime involving moral turpitude; (2) failed to pay taxes; and (3) is a habitual drunkard or drug user amongst other things. The possibilities are potentially endless.
Regardless, be sure to take a proactive approach to good moral character. If the immigrant is active in the community, use that to your advantage.
Special Rules for Battered Spouses and Children
In addition to the traditional forms of Cancellation of Removal, there are special rules for spouses and children of U.S. citizens and LPRs who have been battered or subject to extreme cruelty at the hands of such a relative.
In the case of a spouse, the marriage does not even have occurred. If the individual intended to marry a U.S. citizen or LPR, but did not due to the intended spouse’s bigamy, they may also benefit.
Once abuse or cruelty has been established, the immigrant must prove that he or she (1) has been present in the United States for a continuous period of three years; (2) has been a person of good moral character; (3) would suffer extreme hardship or a parent or child would suffer extreme hardship if removed; and (4) is not otherwise inadmissible.
One of the benefits of relief as a battered spouse or child is that continuous presence in the United States does not end upon service of the NTA. However, 90 days outside of the U.S. or multiple trips adding up to 180 days or more will cause breaks in the continuous presence.
Cancellation of Removal for Certain Non-LPRs and battered spouses and children can be highly rewarding, resulting in Permanent Residency. Seeking this form of relief requires a great deal of patience and creativity from both the attorney and immigrant. Any promise of an easy case from a potential client or guarantee made by a potential attorney should be viewed with skepticism.
Cancellation of Removal for Lawful Permanent Residents
Lawful Permanent Residents (LPRs) are not immune from removal. The only way to ensure absolute protection is through naturalization.
If an LPR ends up in removal proceedings, he or she can apply to have the removal cancelled if the LPR (1) has been a lawfully permanent resident for five (5) years; (2) has resided continuously in the United States for seven (7) years after having been admitted in any status; and (3) has not been convicted of any aggravated felonies.
Often LPRs in removal proceedings have been referred due to a criminal conviction. As a result, the definition of an aggravated felony can be very important.
Unfortunately, the official definition of an aggravated felony (found at INA §101(a)(43)) does little to establish what it actually is.
Cancellation of Removal for Certain Non-LPRs
Cancellation of Removal for certain Non-LPRs is available to those who (1) have been physically present in the United States for a continuous period of not less than 10 years; (2) has been a person of good moral character; (3) has not been convicted of certain crimes delineated in the statute; and (4) can establish that removal would result in exceptional and extremely unusual hardship to the individual’s spouse, parent, or child who is a U.S. citizen or an LPR. Siblings, aunts, uncles, grandparents and cousins do not count.
The 10 years of continuous presence ends once the Notice to Appear (NTA) is served on an individual. In other words, if an immigrant has been present in the United States for nine (9) years and is served with an NTA, but the immigration court does not hear the matter until two years later, at which time the immigrant has been present for eleven (11) years, the immigration court will still rule as if the immigrant had been present in the United States for nine years, not eleven.
In addition, if an immigrant leaves the United States for more than 90 days, or leaves the United States multiple times and those trips add up to 180 days, the 10 years continuous physical residence will be deemed broken, and the immigrant will not be able to avail him or herself of this relief.
Whether a qualifying spouse, parent, or child will suffer exceptional and extremely unusual hardship is often the most contested aspect of any Cancellation of Removal case. Whether or not a relative’s suffering arises to the level of extreme or exceptionally unusual hardship is highly subjective and decisions can vary wildly. Consistency in Cancellation of Removal decisions should not be expected.
However, hardship can be considered in the aggregate, or the totality of smaller hardships in one’s life can add up to extreme and exceptionally unusual hardship, so be sure to leave no stone unturned in your evaluation of hardship possibilities. It is not necessary that the relative be at death’s door to argue hardship successfully.
Likewise, good moral character can also be unpredictable. Examples of situations where one may be found not to have good moral character include those where one has (1) been convicted of a crime involving moral turpitude; (2) failed to pay taxes; and (3) is a habitual drunkard or drug user amongst other things. The possibilities are potentially endless.
Regardless, be sure to take a proactive approach to good moral character. If the immigrant is active in the community, use that to your advantage.
Special Rules for Battered Spouses and Children
In addition to the traditional forms of Cancellation of Removal, there are special rules for spouses and children of U.S. citizens and LPRs who have been battered or subject to extreme cruelty at the hands of such a relative.
In the case of a spouse, the marriage does not even have occurred. If the individual intended to marry a U.S. citizen or LPR, but did not due to the intended spouse’s bigamy, they may also benefit.
Once abuse or cruelty has been established, the immigrant must prove that he or she (1) has been present in the United States for a continuous period of three years; (2) has been a person of good moral character; (3) would suffer extreme hardship or a parent or child would suffer extreme hardship if removed; and (4) is not otherwise inadmissible.
One of the benefits of relief as a battered spouse or child is that continuous presence in the United States does not end upon service of the NTA. However, 90 days outside of the U.S. or multiple trips adding up to 180 days or more will cause breaks in the continuous presence.
Cancellation of Removal for Certain Non-LPRs and battered spouses and children can be highly rewarding, resulting in Permanent Residency. Seeking this form of relief requires a great deal of patience and creativity from both the attorney and immigrant. Any promise of an easy case from a potential client or guarantee made by a potential attorney should be viewed with skepticism.
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