Cancellation of Removal is a form of immigration relief that is potentially available for non-citizens who are placed in removal proceedings, which provides a potential defense to deportation from the United States. Cancellation of Removal is a one time only opportunity, and will be denied if the applicant ever received it before, even if the applicant desires cancellation of removal for a basis that is completely different from the first occasion. Under US immigration law there are different requirements and restrictions for non-citizens that are not Lawful Permanent Residents, and persons that are Lawful Permanent Residents (LPRs), that are set forth in the Immigration and Nationality Act (INA), which are addressed below.
INA section 240A(b)(1) Cancellation of Removal allows the non-Lawful Permanent Resident to become a Lawful Permanent Resident (a green card holder), and to avoid removal from the United States. If the non-Lawful Permanent Resident is placed in removal (deportation) proceedings because he or she is removable and/or inadmissible and is seeking Cancellation of Removal under INA 240A(b)(1), the non-citizen must prove all of the following statutory requirements to the satisfaction of an Immigration Judge:
1. the non-citizen has been physically present in the United States for at least ten years;
2. the non-citizen has good moral character for at least ten years;
3. the non-citizen has not been convicted of certain crimes listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3);
4. the non-citizen’s removal would cause an exceptional and extremely unusual hardship to the non-citizen’s lawful permanent resident or US citizen spouse, child, or parent (also known as a qualifying relative).
It is important to note that Immigration Judges rarely approve Cancellation of Removal, because the standard of proof of “exceptional and unusual hardship” is very high burden and often difficult to prove to the satisfaction of the Court. The Immigration Court has a lot of power to determine whether or not the applicant possesses good moral character, and has a lot of power to decide whether or not an exceptional and extremely unusual hardship actually exists. Also, Congress places limitations on Immigration Courts in terms of the number of Cancellations of Removal that can be approved each calendar year, and therefore the Immigration Court usually reserves this form of relief for very special cases. If the individual does not qualify for Cancellation of Removal any particular reason (because of criminal or antiterrorism grounds, the individual is crewman who entered after June 30, 1964, is considered a certain J visa exchange visitors that did not satisfy their two year requirement, previously was granted Cancellation of Removal, does not meet all of the other requirements outlined above, etc.) the Immigration Judge will not approve Cancellation of Removal application, no matter what the hardship or compelling reason. Cancellation of Removal should only be pursued if the non-Lawful Permanent Resident or Lawful Permanent Resident is already in removal proceedings; a non-citizen should not place himself or herself into harms way and seek to be placed into removal proceedings on purpose to try to obtain Cancellation of Removal, even if the individual believes he or she has a very strong and compelling case.
The Violence Against Women Act (also called VAWA, which is not limited to women despite the name) is also a form of Cancellation of Removal for non-Lawful Permanent Residents who are either the children or spouses of a US citizen or Lawful Permanent Resident abuser, that have been subjected to battery or who are the victims of extreme cruelty by that abuser. To receive Violence Against Women Act Cancellation of Removal the non-citizen applicant must sufficiently prove all of the following:
1. the non-citizen has been battered by or suffered extreme cruelty from a Lawful Permanent Resident (green card holder) or United States citizen abuser, or is the parent of a child who suffered such abuse;
2. must be present in the US for three years before applying;
3. would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the individual was removed;
4. good moral character during the period of physical presence;
5. is not inadmissible or deportable due to certain crimes (including, but not limited to, aggravated felonies), terrorism grounds, marriage fraud, false claim of US citizenship, failure to register, or providing false documents;
6. merits a favorable exercise of discretion
Under United States immigration law there are additional varieties of Cancellation of Removal for Lawful Permanent Residents (green card holders) which also include INA section 240A(a) waiver and a INA section 212(c) waiver. Under INA section 240A(a) a Lawful Permanent Resident (green card holder) can remain in the United States and avoid removal by attempting to prove the following with the Immigration Court:
1. Must be an Lawful Permanent Resident for at least five years;
2. Must have resided in the United States continuously for seven years after lawful admission;
3. No aggravated felonies, cancellation of removal, INA 212(c) relief, or suspension of deportation in the the past;
4. Does not fall into other categories such as being a terrorist, persecutor, certain crewmen, or an exchange visitor;
5. Is able to convince the Immigration Judge that the positive factors for keeping the individual in the US outweighs the reason for removal of the individual.
INA section 212(c) is a variety of United States immigration relief that also gives Lawful Permanent Residents a chance to avoid deportation despite the fact that they are determined to be inadmissible and/or deportable. However, this is a very complex and unforgiving area of immigration law with many potential obstacles and grounds for denial, for which an immigration law expert is absolutely mandatory. The reason INA section 212(c) relief is desirable is due to the fact that it [unlike other forms of United States immigration relief] gives the Immigration Judge the ability to waive all grounds of inadmissibility, and also the burden is often easier to meet than the standard of “extreme hardship” under INA section 212(h). The general requirements of INA section 212(c) Cancellation of Removal are that the inadmissibility or deportation of the person is based on one or more criminal convictions from before April 1, 1997, the individual has never received Cancellation of Removal on another occasion, and the non-citizen must have seven years of lawful unrelinquished domicile in the United States.
The Cancellation of Removal information that you just read is subject to modification, change, or repeal at any future point in time, and is only intended to provide general information to encourage you to seek help from a licensed immigration professional. The information is not a substitute for hiring an experienced immigration attorney to give you correct legal advice, to develop a sound immigration defense strategy, and to fully and properly represent you in Immigration Court. Government policy, case law, and other statutory law that may exist that modify the requirements for Cancellation of Removal, such as “stop clock” provisions based upon certain criminal convictions of the individual that may impact an Immigration Judge’s calculation of how long the non-citizen was deemed to be physically present in the United States in order to qualify for Cancellation of Removal. Other forms of immigration help are potentially available to the non-citizen beyond what is stated herein. These other forms of immigration relief often depend upon the non-citizen’s prior personal history and the facts and circumstances of their situation, and the other relief may potentially include any of the following: I-192, I-212, 601, 601A, asylum, CAT (Convention Against Torture), withholding or removal, 212(h) waiver, U visa, S visa, T visa, CSPA, etc.. A non-citizen should always seek legal advice and representation from a trusted, professional immigration lawyer for any immigration problem, such as the lawyers at Hilf & Hilf, PLC.