Cancellation of removal

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Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings before the United States Executive Office for Immigration Review. It was designed to replace suspension of deportation, a form of relief available prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). A different standard for eligibility for cancellation is applied for lawful permanent residents ("LPRs") and non-LPRs. Recipients of a grant of cancellation are eligible for permanent residency in the United States.

History: Suspension of Deportation[edit]

Prior to April 1, 1997, the effective date of IIRIRA, a form of relief known as "suspension of deportation" was available. Although functionally similar to cancellation relief, suspension had a lower eligibility standard and did not distinguish between lawful and non-lawful resident applicants.

In order to qualify for suspension relief, an applicant under the pre-IIRIRA standard was required to demonstrate the following:

1) Continuous physical presence in the United States for a period of seven years;
2) "Good moral character" during this period; and
3) That the applicant's removal would result in "extreme hardship" to the applicant or any qualifying United States citizen or LPR relatives, including an applicant's spouse, parents, and/or children.

Cancellation of Removal for Lawful Permanent Residents[edit]

Lawful permanent residents of the United States may be placed in immigration proceedings due to certain criminal convictions that leave them inadmissible or deportable from the United States. LPRs convicted of aggravated felonies are entirely precluded from cancellation relief.

Pursuant to INA §240A(a), cancellation is available for any LPR who—1) Has been an LPR for not less than five years; and
2) Has resided in the United States for not less than seven years in any status; and
3) Has not been convicted of an aggravated felony.

Please note the "stop-time" rule at Sec. 240A(d) that stops a lawful permanent resident from accruing the seven years residence once they are served with a Notice to Appear or when they have committed a crime that makes them deportable and/or inadmissible. ````

The application form for LPR-based Cancellation of Removal is the EOIR-42A.

Cancellation of Removal for Non-Permanent Residents[edit]

Pursuant to INA §240A(b), cancellation is available to 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 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 non-LPR-based Cancellation of Removal is the EOIR-42B.

References[edit]

  • Edwin T. Gania. U.S. Immigration Step by Step (2004) p 65
  • [1] 8 U.S.C. §1229b, "Cancellation of Removal, Adjustment of Status"
  • Immigration and Nationality Act, Section 240A

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-6337.html


Applicants may request the Immigration Judge that their removal be canceled under the provisions of VAWA:

• The abuser—a United States citizen or lawful permanent resident—must have subjected the applicant to "battery or extreme cruelty". • This abuse need not have taken place in the United States.