What is Cancellation of Removal?
Cancellation of Removal is used as a form of relief for those that are in the process of a removal proceeding before the Immigration Court. Cancellation of Removal differs based on whether the individual undergoing the removal proceeding is a lawful permanent resident of the United States (LPR) or a nonpermanent resident. In order to apply for cancellation of removal, you must have a date to appear in Immigration Court before an Immigration Judge.
Who qualifies for Cancellation of Removal and what’s the Process?
Legal Permanent Resident
If you are a Legal Permanent Resident and have been placed in a removal proceeding, then you are eligible to file for cancellation of removal if:
- You have been an alien lawfully admitted for permanent residence for five years or more. This five year period cuts off the day you file the Cancellation of Removal application;
- You have resided in the United States for seven years after having been admitted in any status. This continuous presence of seven years, unlike the five year requirement above, ends when the LPR is served with a Notice to Appear or when the LPR commits the claimed offense. Whichever happens first is the date that is used;
- The criminal conviction you have been convicted of is not an aggravated felony;
- You have not received a Cancellation of Removal or 212(c) in the past; and
- As a matter of discretion, you deserve to win your case.
Upon filing the application for Cancellation of Removal, the Immigration Judge will weigh the LPR’s positive equities against their negative factors.
If you are a nonpermanent resident, you may be eligible to have your removal cancelled under section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this perk, you must show the following in a hearing before an Immigration Judge:
- You have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of such application;
- You have been a person of good moral character during the ten year period;
- You cannot have been convicted of an offense under Section 2121(a)(2), 237(a)(2), or 237(a)(3); and
- You have established that removal would result in exceptional and extremely unusual hardship to the Applicant’s spouse, parent, or child who is a citizen of the U.S. or an alien lawfully admitted for permanent residence. Meeting the exceptional and extremely unusual hardship requirement is one the hardest ones for nonpermanent residents to meet. Reason being, not only is the nonpermanent resident required to have a qualifying relative but also demonstrate that the applicant’s removal would cause undue hardship to the qualifying relative.
What should be in the Application?
Legal Permanent Resident
For LPRs filing for Cancellation of Removal, they must complete and file form EOIR 42A. The form consists of “yes” or “no” questions that are imperative in helping the Immigration Judge determine if the LPR is eligible for Cancellation of Removal. The form asks for information in regards to the LPR and their family.
In addition to filing an EOIR 42A, all Applicants must get finger printed at their biometrics appointment, which is prior to their merits hearing in Immigration Court. If the Applicant has a criminal record, they should get a certified disposition for all of their arrests. These certified dispositions will help prove that they do not have an aggravated felony conviction.
For nonpermanent residents applying for Cancellation of removal, they need to include a copy of Form EOIR-28 if they are being represented by an attorney. In addition, the nonpermanent resident needs to file a copy of the Form EOIR-42B and get finger printed at their biometrics appointment.
An LPR cannot just file an application for cancellation of removal, rather they have to first receive permission from the Immigration Judge. Furthermore, cancellation of removal can only be granted once, so while Immigration Judges are often lenient in granting Cancellation of Removal, the Applicant must present a strong case in order to avoid an Order of Removal. However, since Cancellation of Removal is a discretionary form of relief, even if the Applicant can show that they have meet all of the eligibility requirements, the Immigration Judge can still decide that the Applicant does not deserve to be approved and could deny their case.
Why an attorney is need
If you are facing removal proceedings, we highly recommend that you meet with an experienced immigration attorney to help you properly file your Cancellation of Removal. Especially if you have a criminal background. Reason being, you will need an attorney to help you with the analysis that you will be presenting to the Immigration Judge.
To discuss your cancellation of removal case with an experienced immigration attorney from the American Visa Law Group, feel free click the contact us tab and fill out the inquiry form or call us at 510-500-1155.