Facing deportation or removal proceedings or having received a Notice to Appear (NTA) in immigration court can be a daunting situation. However, there may be an opportunity to prevent your removal or deportation. Cancellation of Removal is a legal process available in the United States that offers relief from deportation and a pathway to lawful permanent resident status for certain individuals facing removal proceedings. If successfully canceled, individuals holding permanent residence (Green card) can retain it, while those without it may become eligible for permanent residence.
To be eligible for Cancellation of Removal, individuals must meet specific requirements, and the process involves several key features.
To be eligible for Cancellation of Removal, individuals must meet specific requirements, and the process involves several key features.
For green card holders, the following criteria must be met:
- Lawful admission for permanent residence for a minimum of five years.
- Continuous residence in the United States for seven years after initial admission, regardless of the status granted (including nonimmigrant admission).
- No convictions for aggravated felonies.
- Warrants a favorable exercise of discretion by the Attorney General.
If you do not possess a green card, the requirements are as follows:
Continuous physical presence: The individual must have been physically present in the United States for a continuous period of at least ten years before filing the cancellation of removal application.
Good moral character: Demonstrating good moral character throughout the entire 10-year period. Factors such as criminal convictions can impact the determination of good moral character.
No convictions for specific crimes: Certain criminal convictions, such as aggravated felonies, can make individuals ineligible for cancellation of removal.
Hardship to qualifying relatives: Establishing that removal would result in "exceptional and extremely unusual hardship" to your U.S. citizen or permanent resident (green card) spouse, parent, or child (under 21 years old).
Good moral character: Demonstrating good moral character throughout the entire 10-year period. Factors such as criminal convictions can impact the determination of good moral character.
No convictions for specific crimes: Certain criminal convictions, such as aggravated felonies, can make individuals ineligible for cancellation of removal.
Hardship to qualifying relatives: Establishing that removal would result in "exceptional and extremely unusual hardship" to your U.S. citizen or permanent resident (green card) spouse, parent, or child (under 21 years old).
While good moral character is a statutory requirement, its determination is discretionary and subjective. The law outlines individuals who cannot demonstrate good moral character, including:
- Habitual drunkards.
- Practicing polygamists, prostitutes, smugglers, or those convicted of crimes involving moral turpitude (CIMT), multiple crimes, or drug offenses.
- Individuals providing false testimony for immigration benefits.
- Those primarily earn a living from illegal gambling.
- Individuals incarcerated for an aggregate period of 180 days or more due to any conviction.
- Individuals convicted of aggravated felonies.
- Anyone involved in conduct related to Nazi persecution, participation in genocide, or the commission of acts of torture.
Key Stages of the Cancellation of Removal Process:
- Filing the application: The individual must complete and submit Form EOIR-42A, Application for Cancellation of Removal, to the immigration court handling their removal proceedings. It is crucial to provide accurate information and include supporting documentation.
- Case preparation: Gathering evidence and documentation to support the eligibility requirements is vital. This may involve providing proof of continuous physical presence, demonstrating good moral character, and presenting evidence of the hardship that would result from removal.
- Attendance at immigration court hearings: The individual will be scheduled for a hearing before an immigration judge. It is essential to attend all court hearings and effectively present the case. Seeking legal representation is highly recommended during this process.
- Case presentation: The individual or their legal representative will have an opportunity to present evidence, documents, and witness testimonies to support the application for cancellation of removal. The immigration judge will evaluate the case's merits and make a decision based on the presented evidence.
- Decision waiting period: Following the case presentation, the immigration judge will issue a decision either granting or denying cancellation of removal. If granted, the individual will be permitted to stay in the United States and receive lawful permanent resident status. If denied, the individual may be subject to removal.
Cancellation of Removal is discretionary relief, meaning that even if an individual meets all the eligibility requirements, the immigration judge has the discretion to grant or deny the application based on the specific circumstances of the case. If you find yourself in deportation or removal proceedings, our experienced immigration attorneys are here to help you navigate these complex legal matters and work toward a favorable outcome.