Cancellation of Removal

Cancellation of removal is used as a defense to deportation and effectively adjusts a noncitizen’s status from “deportable” to LPR. If you are in removal proceedings, you maintain the burden to prove that you satisfy all of the statutory requirements for cancellation of removal and that you deserve cancellation of removal as a discretionary matter. If your request is granted, your removal proceeding will be terminated, and you may maintain LPR status.

The Immigration and Nationality Act (“INA”) provides immigration judges with the discretionary ability to cancel removal proceedings for noncitizens who are inadmissible or deportable. INA § 240A provides different statutory requirements for cancellation of removal based on whether the noncitizen is a lawful permanent resident (“LPR”) or not.

This article explains the statutory requirements and bars to cancellation of removal as well as a brief overview of the application process.

Individuals Who Are Always Ineligible for Cancellation of Removal

As a preliminary matter, certain noncitizens are never eligible for cancellation of removal. Even if you satisfy the statutory requirements listed below in this article, you may still be ineligible for cancellation of removal. Examples of individuals who are always ineligible for cancellation of removal include:

• Crewmen who entered the United States after June 1964
• Individuals who are inadmissible under INA § 212(a)(3) or deportable under INA § 237(a)(4) –– both include security-related grounds like espionage, terrorism, and participation in genocide
• Terrorists or Persecutors of another individual due to the individual’s race, religion, nationality, membership in a particular social group, or political opinion
• Individuals who have previously received cancellation of removal or suspension of deportation

Statutory Requirements for LPRs

If you are an LPR, you must satisfy three statutory requirements before you may be eligible for cancellation of removal.

Requirement 1: You have been an LPR for at least 5 years

The five-year period begins when you first become an LPR or a conditional resident. The duration continues accruing during your removal proceedings, up and until a final administrative denial from the Board of Immigration Appeals (“BIA”).

Requirement 2: You have resided in the United States continuously for at least 7 years

The seven-year period begins when you are admitted into the United States as any status (including an LPR, refugee, and student). If you were never admitted, your seven-year period may begin when you adjusted your status to LPR.

Unlike the five-year period of LPR status, the seven-year period of continuous residence ends once you are served a Notice to Appear. The Notice to Appear is a document charging you with inadmissibility or removability. The seven-year period will stop so long as the Notice to Appear contains the location, date, and time of your removal proceedings.

The seven-year period of continuous residence also ends if you commit an offense that makes you inadmissible under INA § 212(a)(2) or removable under INA § 237(a)(2). These offenses include controlled substance offenses, prostitution, human trafficking, domestic violence, terrorism, and money laundering, among many others.

Requirement 3: You have never been convicted of an aggravated felony

Convictions for aggravated felonies often lead to harsh immigration consequences. One such consequence is that you will never be eligible for cancellation of removal. Aggravated felonies are designated by federal law and consist of serious violent crimes like kidnapping and murder. In recent years, many nonfelony and nonviolent offenses have also been deemed aggravated felonies.

Statutory Requirements for Non-LPRs

If you are not an LPR, you must satisfy four statutory requirements before you may be eligible for cancellation of removal. One notable difference in the cancellation of removal process for LPRS and non-LPRs is the annual cap. The government is statutorily limited to granting 4,000 cancellation of removals for non-LPRs annually.

This annual cap often places immigration judges and non-LPRs in a bind, as judges cannot grant a non-LPR cancellation of removal if the annual cap has already been met.

Requirement 1: You have been physically present in the United States continuously for at least 10 years

The ten-year period begins once you are physically present in the United States and continues until your Notice to Appear is served. The timeframe may also end in a few other select circumstances. For example, if you decide to leave the United States once you have been ordered removable, this absence will break your continuous presence requirement. Voluntary departure may also break the time period.

While the requirement states that your physical presence in the United States must be continuous, some temporary absences are allowed. You may leave the United States on short-term trips so long as no single absence is more than 90 days and all absences combined are not more than 180 days.

Requirement 2: You have good moral character for the entire period of continuous physical presence in the United States

The period of good moral character begins at the same time as your physical presence begins and ends when the immigration judge makes a final decision on your application for cancellation of removal. If the decision is appealed, the period of good moral character will continue until the BIA makes a final decision.

Immigration judges conduct a two-part analysis for ensuring you have been a person of good moral character during your ten-year period of continuous presence in the United States. First, you must not be statutorily barred. Under INA § 101(f), certain conduct may statutorily prohibit you from being considered a person of good moral character. Among other items, you will be statutorily barred if you are:

• Habitually drunk
• Involved in certain illegal gambling activities
• Committing perjury to gain immigration benefits
• Incarcerated for a total period of 180 days or more
• Convicted of an aggravated felony
• Engaged in genocide or torture

Second, you must demonstrate that the judge should, in his or her discretion, determine you are a person of good moral character. Judges conduct a balancing test, weighing information about your character to determine whether you are a person of good moral character.

Requirement 3: You have not been convicted of certain criminal offenses

A key component of this requirement is the word “convicted.” If you have been arrested or charged with an offense but not convicted, then you remain eligible for cancellation of removal.

However, if you are convicted of one of the enumerated offenses, you will be permanently barred from cancellation of removal. The judge has no discretion. The relevant criminal conviction is not limited to the same timeframe as your ten-year period of continuous physical presence in the United States.

The list of criminal convictions precluding you from cancellation of removal includes:

• Crimes involving moral turpitude
• Aggravated felonies
• Firearms offenses
• Prostitution
• Domestic violence
• Espionage or treason
• False claim to U.S. citizenship
• Multiple offenses leading to a total sentence of five years or more

There are two exceptions that may allow you to still be eligible for cancellation of removal despite a criminal conviction.

1. Crimes Involving Moral Turpitude Exception: If you have only committed one crime involving moral turpitude, you received a sentence of six months or less, and the offense carries a maximum possible sentence of less than one year, then you may still qualify for cancellation of removal.
2. Petty Offense Exception: If you are convicted of a crime that has a maximum potential sentence of one year or less and you received a sentence of six months or less, then you may still qualify for cancellation of removal.

Requirement 4: Your removal would lead to “exceptional and extremely unusual hardship” to a qualifying relative

Establishing exceptional and extremely unusual hardship to a qualifying relative can be challenging because you must (1) have a qualifying relative in the United States at the time of non-LPR cancellation adjudication and (2) demonstrate that discretion should be exercised in your favor.

The qualifying relative must be your U.S. citizen or LPR spouse, parent, or child. Qualifying children must be unmarried and under age 21. Judges may also consider hardship to non-qualifying relatives, such as married or adult children, if you can demonstrate how hardship to that individual impacts qualifying relatives.

Immigration judges consider the totality of circumstances to determine whether a qualifying relative will suffer exceptional and extremely unusual hardship if you are removed. While the exact standard of “exceptional and extremely unusual hardship” remains difficult to pinpoint, case law indicates that the hardship must be substantially beyond the hardship anticipated when a close family member is deported and should be confined to truly exceptional circumstances. However, you do not need to demonstrate the hardship is so significant that deportation would be unconscionable.

Judges may consider a variety of factors in determining hardship, including the qualifying relatives’ health, duration of U.S. residence, community ties, and circumstances in your home country.

Statutory Requirements for Battered Spouse or Child

Children and spouses who experience domestic violence in the United States may also qualify for cancellation of removal if six requirements are met.

Requirement 1: You were battered or subjected to extreme cruelty in the United States by a qualifying relative

The qualifying relative must be your U.S. citizen or LPR spouse or parent. Various forms of abuse may qualify, including singular acts of violence, threats of violence, forceful detention, psychological abuse, sexual abuse, and a pattern of violence.

Requirement 2: You have been physically present in the United States continuously for at least 3 years

The three-year period begins once you are physically present in the United States and continues once your Notice to Appear is served. The timeframe ends once you request cancellation of removal.

The three-year period of continuous residence also ends if you commit an offense that makes you inadmissible under INA § 212(a)(2) or removable under INA § 237(a)(2). These offenses include controlled substance offenses, prostitution, human trafficking, domestic violence, terrorism, and money laundering, among many others.

While the requirement states that your physical presence in the United States must be continuous, the same temporary absences as with non-LPR cancellation of removal apply. If your absences exceed the permitted amount but are connected to the relevant battery or extreme cruelty, the absences may be excused.

Requirement 3: You have good moral character

The standard for good moral character is the same as for non-LPR cancellation of removal. If some conduct would typically bar you from having good moral character but is connected to the relevant battery or extreme cruelty, the conduct may be excused.

Requirement 4: You are not inadmissible or deportable under certain categories

The standard here is the same as for non-LPR cancellation of removal.

Requirement 5: You have never been convicted of an aggravated felony

The standard here is the same as for LPR cancellation of removal.

Requirement 6: Your removal would lead to “extreme hardship” to you, your child, or your parent

The level of required hardship here is lower than for other non-LPR cancellation of removal cases. You must demonstrate that discretion should be exercised in your favor because your removal would cause extreme hardship to you, your child, or your parent due to:

• The nature and extent of the abuse suffered
• The loss of access to U.S. courts
• The threat of harm by the abuser’s family or friends in your home country
• The need for social and health services that are only available in the United States
• The ability of your abuser to harm you in your home country and your lack of recourse or protection

Applying for Cancellation of Removal

If you believe you are eligible for cancellation of removal, the next step is completing the appropriate form:

• LPR: Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents
• Non-LPR: Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents

You then file and serve the completed form on all relevant parties (U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the appropriate Immigration Court.

If you have applied for cancellation of removal and other applications for relief (i.e., asylum) the immigration judge will address the other form of relief first. If a different form of relief is granted, the judge will deny the application for cancellation of removal.

Evidence Supporting Application

Various evidence and biometric must be submitted to satisfy the requirements. If any of the documents are not in English, you are responsible for having the documents translated into English.

To demonstrate continuous physical presence in the United States for the respective period, you should submit evidence such as birth records, education records, tax payments, receipts, and real estate documents (i.e., lease or deed).

To demonstrate you are a person of good moral character during your period of continuous physical presence, you should submit evidence such as affidavits attesting to your good moral character (from U.S. citizens and your employer) and police records.

To demonstrate the required level of hardship, you should submit evidence establishing your qualifying relationships such as marriage certificates, death certificates, and birth records. You should also submit evidence of your qualifying relatives’ citizenship or LPR status.