A successful Cancellation of Removal case provides immigration relief for aliens in removal proceedings, preventing the hardship of deportation from the United States. However, Cancellation of Removal will be denied if the alien ever received it in the past for any reason at all, so the alien needs to be cautious to not squander their opportunity. There are different legal requirements for persons that are not Lawful Permanent Residents, and persons that are Lawful Permanent Residents (LPRs) for Cancellation of Removal which need to be recognized before seeking it.
INA section 240A(b)(1) Cancellation of Removal allows the alien who is not a Lawful Permanent Resident to become a Lawful Permanent Resident, and avoid removal to their country of citizenship, if the petition is successful. The non-Lawful Permanent Resident under INA 240A(b)(1), must prove the following:
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).
Immigration Judges are usually very careful and selective with awarding Cancellation of Removal, because the standard of proof (exceptional and unusual hardship) is an extremely high and difficult burden. The Immigration Court is likely to strictly consider whether or not the applicant possesses good moral character, and whether or not an exceptional and extremely unusual hardship actually exists. If the alien cannot legally receive Cancellation of Removal (for reasons such as: 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 never approve the Cancellation of Removal application, no matter what the exceptional and unusual hardship. Cancellation of Removal is not for every alien – it is only available for aliens who are already placed in removal proceedings with an Immigration Court. An alien should never place himself or herself into harm’s way by actively seeking to be placed into removal proceedings to try to obtain Cancellation of Removal, even if the individual believes he or she has a compelling case.
The Violence Against Women Act (also called VAWA) is another form of Cancellation of Removal for non-Lawful Permanent Residents (despite the name of this act, it applies to both female and male applicants) 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. The alien seeking VAWA is required to 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.
There are also other forms of Cancellation of Removal for Lawful Permanent Residents (LPR) such as an INA section 240A(a) waiver and a INA section 212(c) waiver to avoid deportation. Under INA section 240A(a) a LPR must prove the following:
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 an extremely complex, but necessary potential ground, for 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, there are huge potential obstacles that the alien will face, for which hiring an experienced and dedicated immigration lawyer to represent you is absolutely mandatory. The reason INA section 212(c) relief is revered by aliens is due to the fact that it [unlike other forms of US immigration relief] gives the Immigration Judge the power 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 requirements include the all of the following: that the inadmissibility or deportation of the non-citizen is based on one or more criminal convictions from before April 1, 1997; the non-citizen has not received Cancellation of Removal on a past occasion; and the non-citizen must have seven years of lawful unrelinquished domicile in the United States.
The Cancellation of Removal is subject to repeal or change without notice due to the nature of US immigration law, and the information contained herein is only intended to encourage you to seek help from a highly experienced immigration professional. You need to retain an experienced immigration attorney to give you great legal advice, to develop a strong and comprehensive immigration defense strategy, and to fully and properly represent you in Immigration Court. United States immigration policy, and relevant and changing case and statutory law, may impact your ability 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 forms of immigration relief that may be available to the alien beyond what is stated herein, and a experienced immigration lawyer 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 admissibility and deportation matters, an alien should seek the best possible immigration legal representation from an intelligent immigration professional, such as the lawyers at Hilf & Hilf, PLC.