A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, June 12, 2015

Cancellation of Removal - Last Resort for Deportables

Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. It was created by Congress in 1996 to replace “suspension of deportation” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 

The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions.  It is a balancing test.  There are two main type of cancellation – one for legal residents and the other type for non-residents.

Cancellation of Removal for Non-Permanent Residents

Pursuant to INA §240A(b),  the Attorney General may cancel the removal of a non-permanent resident of the United States in any immigration status who-

1) Has continuously resided in the United States for at least ten (10) years; and
2) Has been a person of good moral character throughout this time; and
3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.

The application form for this type of cancellation of removal is the EOIR-42B.

A non-LPR’s continuous physical presence ends either when the foreign national is served with a Notice to Appear (“NTA”) or when he has committed an inadmissible offense under INA § 212(a)(2) [moral turpitude crimes], or a deportable offence under §§ 237(a)(2) [moral turpitude crimes] or 237(a)(4) [security violations]. INA § 240A(d)(1).

Further, an absence from the U.S. of more than 90 days, or multiple absences totaling more than 180 days breaks the non-LPR’s period of continuous physical presence. INA § 240A(d)(2). 

Because of the ten-year physical presence requirement, this form of cancellation is sometimes known as "ten-year green card" in some immigrant communities.  However, it is important to understand that one cannot affirmatively apply for Cancellation of Removal to obtain a green card.  The only way a foreigner may apply for cancellation is when he or she is placed in removal proceedings, and as a defensive tactic, the person may request for cancellation as a relief application from deportation. Some foreign nationals, because they believe they have a strong cancellation application, actually request the Department of Homeland Security (DHS) to put them in deportation proceedings, so that they may have an opportunity to present their cancellation claim.  However, DHS policy generally does not allow that.

Cancellation of Removal for LPRs

Some people mistakenly think that once they are granted a U.S. green card, they will be allowed to stay forever.  However, even lawful permanent residents may be put in removal proceedings as a result of criminal convictions or other violations that render them deportable from the United States.

Pursuant to INA §240A(a), the Attorney General may cancel removal of  any LPR who
1) Has been an LPR for not less than five (5) years; 
2) Has resided in the United States for not less than seven (7) years in any status; and
3) Has not been convicted of an aggravated felony.

Under the "stop-time" rule of Sec. 240A(d), once a LPR is served with a Notice to Appear (formal charging document) or when he/she has committed an offense that makes them deportable and/or inadmissible, the accrual of the seven years of residence stops automatically. Note, the LPR’s permanent residence status is not tolled by either of these two events.

LPRs may use Form EOIR-42A to apply for cancellation of removal.

A Balancing Act

As mentioned above, the purpose of cancellation is to provide an opportunity for longtime U.S. resident to remain here despite their transgressions.  An application for cancellation is usually filed with an immigration judge, who must consider all the facts and circumstances of the case and make a decision.  Equities such as family ties, community ties, rehabilitation, employment history, health of the applicant and his family members, value to society, volunteer services, tax records, property in the U.S. etc., must be weighed against the negative factors such as the seriousness of the offense, number of violations, reasons for the violations, driving records, and any other unfavorable items. 

For non-LPR cancellation, applicant must also establish that their close members will suffer “exceptional and extremely unusual” hardship. This is a significantly more restrictive standard than the old “extreme hardship” standard in the previous suspension of deportation cases.

The BIA has held that the hardship suffered must be something “substantially beyond” the hardships ordinarily associated with a person's ordered departure from the United States. See Matter of Monreal, 23 I. & N. Dec. 56 (2001).  However, the Board also held that the new hardship standard should not be construed so restrictively that only a handful of applicants will ever qualify for relief. See Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002).

What is clear is that cancellation is an extraordinary relief and the last resort for a non-citizen who has committed removable offenses.  If removal is cancelled, the applicant will be granted a green card and allowed to stay in the U.S. legally.   Careful preparation and proper legal representation are required for anybody who is applying for cancellation of removal. 

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