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Cancellation of Removal for Nonpermanent Residents

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

What is cancellation of removal?

If you are a nonpermanent resident (i.e., if you are not holding a green card), who is in removal proceeding, you may apply for cancellation of removal, even if you are found removable (deportable).

If the judge grants you cancellation of removal, you will be admitted to the United States as a permanent resident and will receive a green card.

Different criteria apply for cancellation of removal of certain permanent residents who are in removal proceeding.

When can I apply for cancellation of removal?

You can apply for cancellation of removal only if you are in a removal proceeding.  You cannot apply for cancellation of removal before the government brings a removal proceeding against you. Further, if the removal proceeding has been concluded, you must request that the immigration judge reopen the case and the judge must grant your request, before you may file a request for cancellation of removal.

What are the qualifications for cancellation of removal?

To obtain cancellation of removal, you must show:

  • You have been “physically present in the United States for a continuous period” of at least 10 years.
  • You have been a person of good moral character.
  • You have not committed certain crimes.
  • Your removal would result in “exceptional and extremely unusual hardship” to your citizen or permanent resident spouse, parent, or child.

How is the 10 years of continuous presence computed?

Generally, the 10-year period is computed from the date you first entered the United States to the date you receive the Notice to Appear (NTA) for a removal proceeding. Any departure, from the United States, in excess of 90 days or for an aggregate period in excess of 180 days, would break the continuity of presence.

There are some exceptions to this rule. For example, those who enlisted in the U.S. armed forces while they were in the United States, served 24 months in active-duty status in the U.S. armed forces, and were discharged honorably, are deemed to have met the 10-year requirement. For battered spouses and children, the physical presence is computed more liberally and, in addition, they are required to show (3) years of physical presence, as opposed to ten (10).

What is an exceptional and extremely unusual hardship?

To receive cancellation of removal, you must show that your deportation will present “exceptional and extremely unusual hardship” to your citizen or permanent resident spouse, child, or parent.

No doubt removal or deportation would present significant hardship to the person who is being deported.  That factor is not relevant to the determination of eligibility for relief.  What is relevant is “exceptional and extremely unusual hardship” to the deportee's citizen or permanent resident spouse, child, or parent.

So, the first step to meet this criterion is to have a spouse, child, or parent, who is a U.S. citizen or permanent resident. Under the immigration laws, the child must be under 21 and unmarried, as of the time the immigration judge decides your application for cancellation of removal.

The next step is to show “exceptional and extremely unusual hardship.” Note that deporting a person no doubt would present a significant hardship to the family members of the person being deported. The law, however, requires more. The hardship must be exceptional and extremely unusual. To that end, your really should consult an attorney to determine whether you have a viable claim-- and, if so, to review the facts, gather testimony, retain experts, if necessary, and present a comprehensive assembly of evidence to the court.

Who is not eligible to receive cancellation of removal?

  • Those who entered the United States after June 30, 1964, as crewman.
  • Exchange scholars who came to the United States to receive graduate medical education or training.
  • Exchange scholars who have not fulfilled their two-year home-country residency requirement or have not obtained a waiver.
  • Spies, saboteurs, terrorists and their associates, those whose presence in the United States “would have potentially serious adverse foreign policy consequences,” members of totalitarian parties, Nazis, and those who participated in severely limiting the religious freedom of others, genocide, torture, extrajudicial killings, and recruitment or use of child soldiers. INA §§ 212(a)(3) & 237(a)(4).
  • Those who are convicted of a serious crime and are a public danger. INA § 241(b)(3)(B)(i).
  • Those who have received cancellation of removal before (suspension of deportation before September 30, 1996).

Is there a limit on how an immigration judge may grant cancellation of removal?

Yes. Cancellation of removal is a discretionary relief. That means that even if you qualify, you still need the immigration judge to exercise his or her discretion favorably and grant you relief.  In any given year, the immigration judges are allowed to issue no more than 4,000 cancellations of removal.  Considering that there are over 200 immigration judges in the country, on average each judge gets to grant less than 20 such applications per year. So, the immigration judges are reserved in exercising favorable discretion except for most deserving situations.

What happens if I am granted cancellation of removal?

Once you are granted cancellation of removal, assuming the government does not appeal, you will be deemed a permanent resident as of the date of the immigration judge's decision.

Related Topics:

Cancellation of Removal for Battered Spouses & Children

Removal Proceeding Procedure & Defenses

Removal Proceedings

Grounds for Removal

Undocumented Immigrants

 

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