Cancellation of Removal provides potentially life saving immigration relief for non-citizens in removal proceedings, because when it is successful it provides a defense to removal from the United States. Cancellation of Removal is only granted one time only during a person’s lifetime, and will be denied if the applicant ever received it before for any reason. Immigration law requirements are different for non-citizens that are not Lawful Permanent Residents, and persons that are Lawful Permanent Residents (LPRs).
INA section 240A(b)(1) Cancellation of Removal permits the non-Lawful Permanent Resident to become a Lawful Permanent Resident (LPR), provided that they are successful before an Immigration Judge in their petition in proving each and every of the following requirements:
1. he or she has been physically present in the United States for at least ten years;
2. he or she has good moral character for at least ten years;
3. he or she has not been convicted of certain crimes listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3);
4. his or her 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).
Immigration Judges do not frequently approve Cancellation of Removal, because: the standard of proof of “exceptional and unusual hardship” is viewed as an extremely high and difficult burden; the Immigration Court will carefully consider whether the applicant possesses good moral character; the Immigration Court will carefully consider whether an exceptional and extremely unusual hardship actually exists. If the individual is not eligible to receive Cancellation of Removal (because of criminal grounds, antiterrorism grounds, the individual is crewman who entered after June 30, 1964, the individual is considered a certain J visa exchange visitors that did not satisfy their two year requirement, the individual previously was granted Cancellation of Removal, the individual does not meet all of the other requirements outlined above, etc.) the Immigration Judge will not approve Cancellation of Removal application, even if the hardship is compelling and extreme for the non-citizen and his family. Cancellation of Removal is only available for non-Lawful Permanent Residents or Lawful Permanent Residents who are already in removal proceedings; a non-citizen should never seek to be placed into removal proceedings to try to obtain Cancellation of Removal, even if the individual believes he or she has a very strong, viable, and compelling case.
The Violence Against Women Act (VAWA) is a type of Cancellation of Removal for non-Lawful Permanent Residents who are either the children (female or male) or spouses (female or male) 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 US citizen or LPR abuser. Under VAWA the applicant is required to prove all of the following:
1. he or she has been battered by or suffered extreme cruelty from a LPR or US citizen abuser, or is the parent of a child who suffered such abuse;
2. he or she must be present in the US for three years before applying;
3. he or she would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the individual was removed;
4. he or she possesses good moral character during the period of physical presence;
5. he or she 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. he or she merits a favorable exercise of discretion.
There are other Cancellation of Removal options potentially available for LPRs such as an INA section 240A(a) waiver and a INA section 212(c) waiver. Under INA section 240A(a) a LPR can avoid removal to his or her country of citizenship from the United States by proving all of the following:
1. he or she must be an Lawful Permanent Resident for at least five years;
2. he or she must have resided in the United States continuously for seven years after lawful admission;
3. he or she has no aggravated felonies, cancellation of removal, INA 212(c) relief, or suspension of deportation in the the past;
4. he or she does not fall into other categories such as being a terrorist, persecutor, certain crewmen, or an exchange visitor;
5. he or she 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 an extremely important and complicated, type of US immigration relief that also gives LPRs a chance to avoid deportation despite the fact that they are determined to be inadmissible and/or deportable. Hiring a dedicated, knowledgable immigration lawyer to represent you is absolutely mandatory. The reason INA section 212(c) relief is a popular option (if available) is due to the fact that it [unlike other forms of US 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). INA section 212(c) Cancellation of Removal requires the basis for inadmissibility or deportation of the non-citizen is from: one or more criminal convictions from before April 1, 1997; the non-citizen has never received Cancellation of Removal at anytime in the past; and the non-citizen must have 7 of lawful unrelinquished domicile in the US.
Unlike other areas of US immigration law, Cancellation of Removal is subject to change, repeal, or modification at any future point in time, and the information that you just read is only intended to encourage you to seek help from a top tier immigration professional. The information contained herein is not a substitute for hiring a competent immigration attorney to give you proper legal advice, to develop a sound immigration defense strategy, and to fully and properly represent you in Immigration Court. US policy, case law, and other statutory law may also impact your attempt to receive Cancellation of Removal (for example, “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). There may be other significant and important forms of immigration relief potentially available to you beyond what is stated herein, and a skilled and competent immigration attorney is in the best position to tell you your options (for example, other forms 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). For all US immigration removal defense issues you should absolutely obtain representation from a trusted immigration professional, such as the lawyers at Hilf & Hilf, PLC.