Stopping a Deportation: Cancellation of Removal

Even if removal proceedings start and someone faces deportation, it’s important to know there are ways they can try to legally stay in the United States. These legal options are known as relief from removal.

One type of relief is cancellation of removal. This benefit allows eligible individuals to request another chance to obtain legal status. In this article, we’ll explain what cancellation of removal is and who can apply for it.

If you or someone you know is facing removal proceedings, it is best to seek legal advice from an experienced immigration attorney. They can assess your case and help defend against a deportation. Talking to an immigration lawyer is completely confidential and safe, regardless of your current immigration status.

What Is Cancellation of Removal?

Cancellation of removal allows lawful permanent residents (green card holders) and other noncitizens to stay in the country by filing a petition with an immigration judge. If granted, it can stop deportation.

For eligible applicants, this type of relief could result in an adjustment of status to lawful permanent resident (LPR) or allow current permanent residents to keep their immigration status.

However, to apply for this type of relief, you must meet certain conditions.

Eligibility Requirements for Cancellation of Removal

The eligibility requirements to apply for cancellation of removal depend on your immigration status at the time of removal proceedings. Let’s take a look at them.

Lawful Permanent Residents

For lawful permanent residents (LPRs), the immigration judge may grant cancellation of removal if the individual meets all of the following criteria:

• At least five years of lawful permanent residency
• At least seven years of continuous residence in the U.S. after admission to any immigration status
• Has not been convicted of an aggravated felony

Within immigration law, an aggravated felony is broadly defined and encompasses several criminal offenses, including:

• Trafficking of drugs or firearms
• Sexual abuse of a minor
• Murder
• Rape

These convictions could lead to possible inadmissibility issues for legal permanent residency or to deportation.

Certain legal events “stop the clock” on continuous residence in the United States. For example, imagine someone who has been in the U.S. for eight years and is convicted of a drug offense that qualifies for removal. Even if they stay in the U.S. for three more years before removal proceedings begin, they only have eight years of continuous residence. The drug conviction stops time for eligibility purposes.

Non-Permanent Residents

For non-permanent residents of the United States, there are two types of removal cancellation.

One applies to nonpermanent residents who have been in the U.S. for 10 years. The other is for survivors of domestic violence who have resided here for at least three years.

To qualify for a 10-year cancellation, you have to meet the following requirements:

First, you should have maintained a continuous physical presence in the United States for at least 10 years.

Second, within the 10-year period, you need to have maintained good moral character. Claims of good moral character are reviewed on a case-by-case basis during adjudication.

The following activities will lead to a determination of the applicant lacking good moral character:

• Convicted of murder at any time
• Convicted of an aggravated felony on or after Nov. 29, 1990
• Convicted for possession of a controlled substance
• Convicted and sent to prison, and the sentence was 180 days or more.
• Falsely testified to obtain benefits under the U.S. immigration laws
• Involved in prostitution
• Convicted of two or more gambling-related offenses
• Engaged in human smuggling
• A habitual use of alcohol

Factors that can help prove good moral character include:

• Steady employment history
• Paying taxes
• Community involvement
• Family ties to U.S. citizens or residents
• Charitable work or volunteer activities
• Educational achievements

Third, you did not commit a criminal offense that would make you removable. Criminal conviction of an aggravated felony could result in an order of removal.

You must also show that removal would result in exceptional and extremely unusual hardship to your family members. This factor applies only to the applicant’s qualifying relative. Qualifying relatives are spouses, parents, or children who are U.S. citizens or lawful permanent residents.

The “exceptional and extremely unusual hardship” standard is high, and the courts determine it on a case-by-case basis. Courts will consider things like whether you have a history of previous immigration cases and previously won a suspension of deportation, cancellation, or a Section 212(c) waiver.

The three-year cancellation is reserved for people experiencing domestic violence.

Victims of Domestic Violence

Some noncitizens can apply for cancellation of removal if they have been abused by a spouse or parent who is a U.S. citizen or permanent legal resident. This option is available under the Violence Against Women Act (VAWA). It is also called a special rule or VAWA cancellation.

An applicant filing for this discretionary benefit must also show that:

• They have maintained a continuous physical presence in the U.S. for at least three years.
• They’ve experienced physical or psychological abuse at the hands of a spouse or parent who is a U.S. citizen or LPR residing in the same household.
• They have good moral character, as described above.
• They are not inadmissible or deportable under the immigration laws for committing any criminal offense.

VAWA applicants must show extreme hardship, a slightly lower bar than the standard for 10-year cancellation. This applies when the hardship would affect the applicant or their child, provided that the child is a U.S. citizen or a lawful permanent resident. It also applies when the applicant is a child whose removal would cause extreme hardship to themselves or their parent.

How To Apply for Cancellation of Removal

The removal process has two parts. First, the immigration judge reviews the government’s claims that you violated U.S. immigration law. You may admit to the charges or challenge them. It’s the government’s job to prove they are true.

If the judge finds you broke immigration law, they’ll issue a removal order. If you are eligible to apply for a 10- or three-year cancellation of removal, you should declare your intention to apply for this type of relief.

The second part is when you apply for the 10- or three-year cancellation. To begin the process, you have to fill out forms. The immigration court will ask you to attend an individual hearing. The hearing could take weeks or months, and the schedule depends on the court’s availability.

Forms Needed for a Cancellation of Removal

To begin your application for cancellation of removal, you should file the following documents with both the immigration court and the Department of Homeland Security (DHS). Both forms can be found online, or you can also have an attorney help you find and complete the correct forms.

Form EOIR-42B

This is your application for cancellation of removal. You must send the original to the immigration court, while a copy will be sent to the DHS. You’ll need to:

• Pay a $100 fee or file an Affidavit of Fee Waiver: The original proof of payment or fee waiver form is for the immigration court. A copy goes to the DHS.
• Submit two photographs: One copy goes to the immigration court. The other goes to the DHS.

Applicants who cannot afford the filing fee must also fill out Form EOIR 26A (Fee Waiver Request). You’ll need to provide information about your income.

Both these forms are available online through the Department of Justice.

Form G-325A

Form G-325A is the Biographic Information form filed with U.S. Citizenship and Immigration Services (USCIS). You may have to pay a filing fee, depending on the circumstances of your case.

USCIS may require you to come in for a “biometric services appointment.” This interview may include fingerprinting, background checks, and other methods to verify your identity.

Frequently Asked Questions About Cancellation of Removal

The following are some of the most frequently asked questions (FAQ) about cancellation of removal.

Does cancellation of removal waive the permanent bar on reentry?

Cancellation of removal does not automatically waive all grounds of inadmissibility, including the permanent bar on reentry. The permanent bar affects certain people with immigration violations, including:

• People who were unlawfully present for over a year or were previously ordered removed
• Those who entered or tried to enter the U.S. without going through proper immigration procedures.

According to USCIS guidance, those subject to the permanent bar must remain physically outside of the U.S. for at least 10 years from their last departure. They must file an Application for Permission to Reapply for Admission using Form I-212 before they can lawfully return.

What is the success rate of cancellation of removal?

The Executive Office for Immigration Review (EOIR) can only grant cancellation of removal to 4,000 non-permanent residents each fiscal year. Because of this cap, some applicants may have to wait for years before an immigration judge can review their application. This cap does not apply to lawful permanent residents or victims of domestic violence applying for cancellation of removal.

The EOIR publishes information about general immigration court statistics. It does not provide certain data on approval rates for cancellation or removal. Each case is looked at separately, and the success rate may depend on various factors.

The success of the cancellation of removal varies significantly depending on various factors. The immigration court will look at many factors, including:

• Your immigration history
• Your criminal background
• Evidence of hardship to qualifying relatives

If you are concerned about the success of your application for cancellation of removal, consult an experienced immigration attorney. They can help assess your case and provide the best way to ensure the success of your application.

What happens after a cancellation of removal is granted?

If an immigration judge grants your application for cancellation of removal, there are several legal consequences that follow. First, it terminates your removal proceedings. You could also obtain lawful permanent residence status or a green card and remain in the United States.

Follow the USCIS instructions on how you can obtain documentation of your immigration status and employment authorization. After your cancellation of removal is granted, you can travel outside the United States. You should consult an immigration attorney to determine if you have any travel restrictions.

Can cancellation of removal lead to a green card?

Successful cancellation of removal results in adjustment of status to lawful permanent resident status under federal immigration law. The Attorney General may “cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence” qualifying applicants.

One of the immigration benefits of having a green card is that you can live and work in the United States permanently. You can also study with this type of immigration status. For those who already have a green card, cancellation of removal allows them to retain their lawful permanent resident status.

Seek Legal Advice From an Immigration Lawyer

The journey through removal or deportation proceedings can be scary. The stakes are high when you fight to stay with your family members or escape the dangers in your home country. For those facing removal from the U.S., it is best to seek legal advice from an immigration lawyer. An immigration attorney can explore the types of relief available and help protect your rights.

Remember that the attorney-client privilege protects all communications, regardless of your immigration status. This means that everything you have discussed will be kept completely confidential. They will not report you to immigration authorities. 

FindLaw’s directory of immigration law attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals near you. Your results will also show key details about prospective attorneys, including ratings, languages spoken, and areas of practice.