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Cancellation of Removal Explained

| Oct 20, 2019 | Firm News

Cancellation of removal is an important deportation defense that may be available to certain immigrants who are facing removal proceedings. If you are an immigrant who can be classified as a non-lawful permanent resident and have received a Notice to Appear (NTA), cancellation of removal may be a valid way for you to avoid deportation, obtain a Green Card, and become a lawful US resident.

However, US immigration law imposes strict requirements that must be met for a non-permanent resident to be eligible for cancellation of removal. In other words, only a limited number of qualifying individuals may receive this privilege each year. In this blog, we will explain who can be eligible for cancellation of removal and what you can do to increase your chance of obtaining cancellation of removal for non-permanent residents.

Basic Requirements

An immigrant can only pursue cancellation of removal if they already have removal proceedings started against them. These proceedings start when a non-citizen is served a letter called a Notice to Appear. This can either be sent by mail or served directly by an immigration office following detention. In other circumstances, cancellation of removal is not a valid way to pursue an immigration benefit.

Other basic requirements that a non-permanent resident must meet to be eligible for cancellation of removal include:

  • 10 years of continuous physical presence in the U.S.
  • Having a good moral character
  • Having no criminal convictions for certain offenses
  • Having a spouse, child or parent who is a United States citizen or lawful permanent resident and who would suffer exceptional and extremely unusual hardship in the case of the non-permanent resident’s removal

We will now analyze each of these requirements in more detail.

Ten Years of Continuous Physical Presence in the U.S.

To qualify for cancellation of removal, the non-resident must be able to prove that they continuously lived in the US for 10 years before they were served the Notice to Appear. The 10-year period is counted from the moment of the non-citizen’s arrival in the US. Although a person who left the US during this period may still pursue cancelation of removal, spending more than 90 consecutive days or more than 180 days in total outside of the country would automatically reset the clock and render the person ineligible. Additionally, committing certain crimes can also end a person’s continuous presence and prevent them from meeting the requirement.

Good Moral Character

The applicant must also be able to prove that, in the 10-year period described above, they exhibited good moral character. For example, being convicted of certain crimes such as murder or a crime considered an aggravated felony under the Immigration and Nationality Act automatically disqualifies a person from having good moral character.

Having No Disqualifying Convictions

The Immigration and Nationality Act (INA) mentions certain criminal acts that can become grounds for deportation. For that reason, to be eligible for cancelation of removal, the applicant cannot be convicted of any crimes mentioned in the INA sections 212(a)(2), 237(a)(2), or 237(a)(3). Such crimes include:

  • entry/departure permit fraud
  • false claim to U.S. citizenship
  • firearms offense
  • aggravated felony
  • crime involving moral turpitude
  • crime of child abuse
  • crime of domestic violence or stalking

Exceptional and Extremely Unusual Hardship

The last requirement is the applicant must meet to be eligible for cancelation of removal for non-permanent residents is proving that the removal would cause exceptional and extremely unusual hardship to a qualifying relative. A qualifying relative must be a US citizen or a lawful permanent resident who is the applicant’s child, spouse, or parent. Additionally, the child must be under 21 years old and unmarried.

The applicant must also be able to prove that their deportation will cause the qualifying relative exceptional and extremely unusual hardship. Such hardship must be related to circumstances beyond the ordinary hardship that every removal proceedings cause to the family members of the deported non-citizen. For example, severe illness of the qualifying relative that cannot be effectively treated in the applicant’s country of origin.

Applying for Cancellation of Removal? Contact the experienced attorneys at Rotella & Hernandez

Whether a non-resident’s application for cancellation of removal is successful or not depends not only on the applicant meeting the requirements but also on the immigration judge exercising his/her discretion in granting cancellation. For that reason, applicants should have a skilled and experienced immigration attorney who will represent them with intelligence and passion. Contact us to schedule a consultation and discuss your options for a successful deportation defense.