Cancellation of Removal: Who May Qualify for This Deportation Defense?

Being placed in removal proceedings does not always mean that deportation is inevitable. Depending on a person's immigration history, family circumstances, criminal record, and other factors, there may be forms of relief that can be requested before an immigration judge.

One of those forms of relief is Cancellation of Removal.

Cancellation of Removal can potentially allow certain people who are already in removal proceedings to remain in the United States. However, simply having lived in the United States for many years is not enough.

The legal requirements are strict, and they differ significantly depending on whether the person is already a lawful permanent resident — commonly called a Green Card holder — or is a non-permanent resident.

Understanding that distinction is one of the first steps in determining whether Cancellation of Removal may be available in a particular case.

What Is Cancellation of Removal?

Cancellation of Removal is a form of immigration relief that may be requested in removal proceedings before an immigration judge.

In other words, it is not simply an immigration benefit that someone applies for because they have lived in the United States for a certain number of years.

The person must generally be in removal proceedings and must establish that they satisfy the legal requirements for the particular type of Cancellation of Removal they are requesting.

There are two common categories:

• Cancellation of Removal for Certain Permanent Residents, generally filed using Form EOIR-42A.

• Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, generally filed using Form EOIR-42B.

The standards for these two forms of relief are different.

Cancellation of Removal for Lawful Permanent Residents

A person who already has a Green Card may sometimes face removal proceedings because of criminal history, immigration violations, or other grounds of removability.

Certain lawful permanent residents may be able to ask an immigration judge to cancel their removal.

Generally, an LPR seeking Cancellation of Removal must establish that:

• they have been a lawful permanent resident for at least 5 years;

• they have resided continuously in the United States for at least 7 years after having been admitted in any status;

• they have not been convicted of an aggravated felony; and

• they deserve a favorable exercise of discretion from the immigration judge.

Meeting the numerical residence requirements does not automatically mean the case will be approved.

An immigration judge may also evaluate the overall circumstances of the case when deciding whether to grant relief.

What Does the Seven-Year Requirement Mean?

The seven-year rule can be more complicated than simply counting seven years on a calendar.

Immigration law contains rules that can affect when continuous residence is considered to end, often referred to as the stop-time rule.

Because the effect of an arrest, criminal offense, Notice to Appear, admission history, or other immigration event may be highly case-specific, someone facing removal proceedings should not assume that they meet the seven-year requirement based only on the date they first entered the United States.

A detailed review of the immigration timeline may be necessary.

What About Criminal Convictions?

Criminal history is especially important in Cancellation of Removal cases.

For lawful permanent residents, a conviction that qualifies as an aggravated felony under immigration law generally bars eligibility for this form of cancellation.

But immigration consequences do not always correspond to the way a criminal offense is labeled under state law.

An offense that does not sound particularly serious may still have major immigration consequences, while the effect of another conviction may depend on the statute, sentence, record of conviction, and other factors.

Anyone in removal proceedings with an arrest or conviction should have the criminal and immigration records carefully reviewed before assuming whether Cancellation of Removal is available.

Cancellation of Removal for Non-Permanent Residents

Cancellation of Removal may also be available to certain people who do not have lawful permanent resident status.

The requirements are significantly different.

Generally, an applicant must establish:

• at least 10 years of continuous physical presence in the United States;

• good moral character during the required period;

• no conviction for certain offenses that make the person statutorily ineligible;

• that removal would cause exceptional and extremely unusual hardship to a qualifying relative; and

• that the person deserves relief as a matter of discretion.
  

A qualifying relative for this purpose must generally be the applicant's:

• U.S. citizen or lawful permanent resident spouse;

• U.S. citizen or lawful permanent resident parent; or

• U.S. citizen or lawful permanent resident child.

This is an important distinction. Hardship to the person facing removal is not, by itself, the legal standard.

Ten Years in the United States Is Not Enough by Itself

One of the most common misconceptions about Cancellation of Removal is:

“I have lived in the United States for more than 10 years, so I qualify.”

Ten years of continuous physical presence is only one part of the analysis.

A non-permanent resident must also satisfy the other statutory requirements, including good moral character, the criminal-history requirements, qualifying relatives, the hardship standard, and ultimately the immigration judge's discretion.

The continuous-presence requirement can also involve complicated legal rules regarding when the period begins or ends.

For that reason, the fact that someone has physically been in the United States for ten or more years should not be treated as an automatic qualification.

What Is “Exceptional and Extremely Unusual Hardship”?

This is often one of the most difficult parts of a non-LPR Cancellation of Removal case.

The standard is higher than showing that deportation would be difficult, emotionally painful, or financially disruptive.

The applicant generally must demonstrate that a qualifying U.S.-citizen or lawful-permanent-resident spouse, parent, or child would experience hardship substantially beyond what would ordinarily be expected when a family member is removed from the United States.

Every family's situation is different.

Evidence may involve issues such as:

• serious medical or health-related needs;

• access to specialized treatment;

• disabilities or developmental needs;

• educational circumstances;

• financial dependence;

• caregiving responsibilities;

• conditions in the country of removal;

• and the cumulative effect of multiple hardship factors.

No single factor automatically guarantees approval. The evidence must be evaluated as part of the family's complete circumstances.

What Does Good Moral Character Mean?

For non-permanent residents, good moral character is another required part of the case.

This analysis can include criminal history and other conduct during the relevant period.

A person should not assume that having no felony convictions automatically resolves the issue. Immigration law contains specific statutory rules concerning good moral character and criminal ineligibility.

Complete disclosure and careful review of the person's history are therefore important.

Can You Apply for Cancellation of Removal If You Are Not in Immigration Court?

Cancellation of Removal under these provisions is relief requested in removal proceedings before the immigration court.

That is different from many immigration benefits that are affirmatively filed with USCIS.

For this reason, a person should not try to place themselves into removal proceedings simply because they believe they might qualify for Cancellation of Removal. Removal proceedings carry serious risks, including the possibility of an order of removal if relief is not granted.

If someone is not currently in proceedings but is concerned about their status, the appropriate approach is to speak with an immigration attorney about all potentially available immigration options.

How Do You Apply?

For people who are already in removal proceedings and potentially eligible:

• certain lawful permanent residents generally use Form EOIR-42A;

• certain non-permanent residents generally use Form EOIR-42B.

The process may require substantial supporting evidence, filing requirements, biometrics, service on the Department of Homeland Security, and presentation of the case before the immigration judge.

The application itself is only one part of the case.

The evidence used to prove residence or physical presence, good moral character, family relationships, hardship, criminal eligibility, and positive discretionary factors can be critical.

Why Preparing Early Matters

Removal-defense cases can involve years of records.

Depending on the case, evidence may include:

• tax returns;

• leases and housing records;

• employment records;

• school records;

• medical documentation;

• birth and marriage certificates;

• proof of family relationships;

• criminal records and certified dispositions;

• financial documentation;

• letters and declarations;

• and evidence showing ties to the United States.

Waiting until shortly before an immigration court deadline to begin collecting these materials can make an already difficult process significantly harder.

If Cancellation of Removal may be part of the defense strategy, preparation should begin as early as possible.

Cancellation of Removal Is Not Automatic

Long residence in the United States matters, but it does not by itself establish eligibility.

Having U.S.-citizen children matters, but it does not automatically satisfy the hardship requirement.

Having a Green Card does not automatically protect someone from removal proceedings.

And satisfying the basic statutory requirements does not necessarily guarantee that an immigration judge will grant the case.

Cancellation of Removal is highly fact-specific and discretionary.

That is why determining eligibility requires looking at the entire immigration history rather than relying on one fact such as “10 years in the United States” or “I have a U.S.-citizen child.”

Facing Removal Proceedings?

If you or a family member is currently in immigration court, understanding every potential form of relief is critical.

The attorneys at Canero Fadul Reis Law (CFR Law) assist individuals and families with removal defense and immigration court matters, including evaluating potential eligibility for Cancellation of Removal.

Schedule a consultation with CFR Law to review your immigration history, family circumstances, and possible defenses before the immigration court.

This article is for informational purposes only and does not constitute legal advice. Eligibility for Cancellation of Removal depends on the specific facts and immigration history of each case.