Cancellation of Removal
Facing the possibility of deportation or removal can be frightening and overwhelming. The process could lead to severe consequences, such as being sent back to your home country or barred from reentering the United States. But, if you or your family members find yourselves going through removal proceedings or deportation, it is crucial to remember that various forms of relief are available. Included among these types of relief is cancellation of removal.
This article aims to better understand cancellation of removal as a form of relief from deportation.
What Is Cancellation of Removal?
Cancellation of removal is a discretionary form of relief available to immigrants undergoing removal proceedings. With this relief, lawful permanent residents (LPR) and nonpermanent residents may apply to an immigration judge for adjustment of status from deportable to one that is a legal permanent resident. However, you must meet certain conditions to be eligible for this relief.
What Are the Eligibility Requirements to Apply for Cancellation of Removal?
The eligibility requirements to apply for cancellation of removal depend on your immigration status.
Lawful Permanent Residents
For lawful permanent residents, cancellation of removal may be granted if the individual:
- Has at least five years of lawful permanent resident status
- Has at least seven years of continuous residence in the United States
- Has not been convicted of an aggravated felony. Within immigration law, this term is broadly defined and encompasses several criminal offenses, including trafficking of drugs or firearms, sexual abuse of a minor, murder, and rape. These convictions could lead to possible inadmissibility issues for legal permanent residency or result in deportation.
For nonpermanent residents of the United States, there are two types of cancellation of removal. They are the 10-year cancellation and the three-year cancellation.
To be eligible 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 maintained good moral character. Claims of good moral character are reviewed on a case-by-case basis. However, immigration laws specify that the following activities will lead to a determination of 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 – in the United States or another foreign country unless it was a single offense for simple possession of 30 grams or less of marijuana
- 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 drunkard
Third, you did not commit a criminal offense that would make you removable. Criminal conviction of aggravated felony, as defined by section 101(a)(43), could result in an order of removal.
In addition, you should also show that removal would result in exceptional and extremely unusual hardship to your family members. But this factor applies only to the applicant's qualifying relatives. This includes 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. Factors include:
- The sympathetic points of your case are more significant than the negative points.
- You do not 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 also called a special rule or VAWA cancellation. You must meet the following requirements to be eligible for a three-year cancellation:
- You or your child is a victim of domestic violence. The perpetrator is either a green card holder or a U.S. citizen spouse of the child's parent. The spouse or parent need not be an LPR or a citizen at the time of application for a three-year cancellation. You also need not be married to the abuser before applying for this form of relief. Note that being a victim of domestic violence means that you or your child have suffered physical or psychological abuse. These acts of abuse can occur inside and outside the United States.
- You or your child lived in the U.S. with an abusive spouse or parent of the child.
- You kept a continuous physical presence in the U.S. for three years immediately before filing for the cancellation of removal.
- You are of good moral character within those three years of physical presence in the country.
- You did not commit immigration offenses or certain types of crimes.
- You or your child could suffer extreme hardship if removed from the United States.
Nonpermanent Residents Who Are Victims of Domestic Violence
A nonpermanent resident placed in removal proceedings may also apply for cancellation of removal if they have suffered battery or were forced to endure extreme cruelty by a spouse or parent who is a U.S. citizen or permanent legal resident. 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 have good moral character, as described above.
- They are not inadmissible or deportable under the immigration laws for committing any criminal record ranging from marriage fraud to aggravated felonies.
- Their removal would result in extreme hardship to them or their child who is the child of a U.S. citizen or lawful permanent resident, or the applicant is a child whose removal would result in extreme hardship to either themselves or their parent.
- They deserve a favorable exercise of the immigration judge's discretion in granting their application.
How to Seek Cancellation of Removal?
The removal process has two parts. In the first part, the immigration judge decides whether the charges against you are true. You may also admit to the charges or ask the government to prove the charges against you.
After the immigration judge decides on your removal from the U.S., this is the end of the first part of the case.
Then, 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.
What Are the Forms You Need to Start the Cancellation of Removal?
You need to file the following with the immigration court and the Department of Homeland Security (DHS):
- Form EOIR-42B or the Application for Cancellation of Removal: You must send the original copy to the immigration court, while a copy will be for the DHS.
- Pay the $100 Fee or File an Affidavit of Fee Waiver: The original proof of payment or fee waiver form is for the immigration court. The copy is for the DHS.
- Two Photographs: One copy goes to the immigration court and another to the DHS.
- Form G-325A or the Biographic Information Form: The original form is for the DHS, and a copy is for immigration court.
- Biometrics Fee
- Certificate of Service: The original certificate is to the court, and a copy is to the DHS.
The immigration judge or the DHS may also provide the forms and filing instructions.
Seek Legal Advice from an Immigration Lawyer
The journey through removal or deportation proceedings can be daunting. Understanding your legal remedies and options can be challenging, especially for those who do not have a legal background. The stakes are high when you fight to stay with your family members or escape the dangers in your home country.
Considering the consequences of removal or deportation, hiring an immigration lawyer is recommended. With their experience in handling these immigration cases, they can provide proper guidance in handling cancellation of removal cases. They can also assist you in understanding the intricacies of immigration laws, the Immigration and Nationality Act (INA), and the deportation proceedings. They can look at other forms of relief, such as voluntary departure or adjustment of status.
Immigration attorneys can also assist you in processing visa applications with the U.S. Citizenship and Immigration Services (USCIS).
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified immigration attorney to help with deportation or removal proceedings.