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 is not available outside of removal proceedings. It only becomes available once an immigrant is served with a Notice to Appear (NTA) requiring an appearance before an immigration judge (IJ).
The best thing about cancellation of removal is that, if successful, it results in LPR status. It is the ultimate form of relief in removal proceedings, and as a result, can also be one of the most difficult forms of relief to obtain.
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, an application to have the removal cancelled can be approved if he or she (1) has been a lawful permanent resident for five 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. Many convictions have been added to the list of aggravated felonies, and if you, as an LPR, have been referred to removal proceedings following a criminal conviction, it is highly recommended you speak with an immigration attorney who focuses on removal defense.
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 for purposes of hardship.
The 10 years of continuous presence ends once the Notice to Appear (NTA) is served. In other words, if you have been present in the United States for nine (9) years and are served with an NTA, but the immigration court does not hear your case until two years later, at which time you have been present for eleven (11) years, the IJ will still rule as if you had been here for nine years, not eleven.
In addition, if you have left the United States for more than 90 days, or have left the United States multiple times over the course of your time here and those trips add up to 180 days or more, the 10 years continuous physical residence will be deemed broken, and you will not be able to avail yourself 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. There is often very little consistency in these cases with regards to hardship.
The good news is that hardship can be considered in the aggregate, in other words, the smaller hardships in an applicant's life can add up to exceptional and extremely unusual hardship, so be sure to leave no stone unturned in your evaluation of hardship possibilities. It is not necessary that your 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 among other things. The possibilities are potentially endless.
Regardless, be sure to take a proactive approach to good moral character. If you are active in the community through volunteer activities, membership in a church, or anything else, use that to your advantage.
Special Rules for Battered Spouses & 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 their relatives.
In the case of a spouse, the marriage does not even have to 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.
Also published on our website.