Immigration Law Basics: What is "Cancellation of Removal"?

August 27, 2013: Whenever I receive a phone call and topic revolves around "my husband is being deported, help!" or "I received an NTA (Notice to Appear) from the Department of Homeland Security, what can I do", one of my first thoughts is whether the person in question is eligible for "Cancellation of Removal". So what exactly is Cancellation of Removal? Cancellation of Removal is an immigration "benefit" if you will for those persons who are faced with removal (commonly known as deportation) from the United States before the Executive Office for Immigration Review (or immigration court).

There are two forms of Cancellation of Removal: 1) Cancellation of Removal for Certain Permanent Residents (green card holders) pursuant to Section 240A(a) of the Immigration and Nationality Act (or INA); and 2) Cancellation of Removal for Certain Non-Permanent Residents (all others) pursuant to Section 240A(b) of the INA. In many cases of removal, these may be the most viable way to remain in the United States and avoid being deported to one's country of origin. One of the best benefits of Cancellation of Removal, other than not being deported, is if you win your case and you are not a permanent resident (e.g. you win under INA 240A(b) for Non-Permanent Residents), you will also receive legal status in the United States in the form of a "Green Card".

Cancellation of Removal for Certain Permanent Residents requires that the Respondent (individual in immigration court proceedings) meet three general criteria, which are:

1. The person must have been a lawful permanent resident ("Green Card" holder) for at least 5 years;
2. Prior to being served with the Notice to Appear or committing the criminal violation that led to removal proceedings, the applicant has resided in the United States continuously for seven years after being lawfully admitted in any status; and
3. The individual has not committed an "Aggravated Felony" (which is beyond the scope of this article and will be addressed in a future post).

These are the minimum requirements in order to be eligible for Cancellation of Removal (for the Green Card holders). The immigration judge will then look to several other factors in order to determine whether the Respondent deserves a favorable exercise of discretion and is awarded the Cancellation of Removal Benefit. Those factors are, but not limited to: family ties in the United States; residence of long duration in this country; evidence of hardship to the Respondent and family if removal occurs; a solid history of employment; the existence of business and property ties; evidence of value and service to the community; proof of genuine rehabilitation; and other evidence attesting to a respondent’s good character (See e.g. Matter of C-V-T). If the applicant is awarded Cancellation of Removal, then the removal proceedings are terminated and he is allowed to remain in the United States. If not, then the individual is deported to their country of origin.

Cancellation of Removal for Certain Non-Permanent Residents is a much higher threshold to overcome and is less frequently awarded by immigration judges (perhaps owing to the difference between Green Card holders who are on a path to US Citizenship versus other non-immigrants, legal or otherwise). In order to demonstrate eligibility for this form of Cancellation of Removal (Non-Permanent Residents), the Respondent must, at a minimum, demonstrate the following eligibility criteria:

1. Must have resided in the United States for at least 10 years;
2. Has been a person of "Good Moral Character" for this period;
3. Has not committed certain criminal offenses covered under INA 212(a)(2) and INA 237(a)(2) relating to crimes involving moral turpitude, firearms offenses, controlled substance violations, aggravated felonies, among other things, and INA 237(a)(3) relating to falsifying documents; and
4. Removal would result in "exceptional and extremely unusual" hardship to a qualifying United States citizen or Lawful Permanent Resident spouse, child, or parent.

As one can see, even if you avoid the criminal barriers to Cancellation of Removal (which are far-encompassing and broad), you still need to meet residency requirements and show "exceptional and extremely unusual" hardship to qualifying immediate family members. And no, "they will miss me" or "won't be able to pay rent" won't work here. Think along the lines of an elderly family member (US Citizen or LPR) who solely depend on you for their support or a child with mental and//or physical limitations solely depending on your assistance. There are numerous other factors that the Board of Immigration Appeals (BIA) has set forth in rulings, but one thing remains: the bar is set incredibly high to show "exceptional and extremely unusual hardship".

As one can see, in addition to meeting the eligibility standards, ample amounts of supporting documentation and evidence are needed to meet the discretionary factors listed above. By consulting with and retaining an experienced Orange County immigration lawyer, you stand the best chances at winning relief for you or your loved ones case. For more information on this, or other immigration matters, call 949-440-3240 or visit Orange County Immigration Attorney Kapesh Patel at www.kpimmigrationlaw.com.