What You Need to Know About Cancellation of Removal in the US

Navigating the complexities of U.S. immigration law can be daunting, particularly when facing removal proceedings. One potential relief from deportation is "Cancellation of Removal," a remedy that allows certain non-citizens to avoid deportation and potentially adjust their status to that of a lawful permanent resident. This blog post will provide a detailed overview of cancellation of removal, explaining its legal framework, eligibility criteria, and application process, as well as offering practical guidance and addressing common challenges.

What Is Cancellation of Removal?

Cancellation of Removal is a form of relief from deportation available to certain non-citizens in the United States. If granted, it can halt deportation proceedings and allow the individual to remain in the U.S. as a lawful permanent resident (LPR). This form of relief is available under the Immigration and Nationality Act (INA) Section 240A, and its provisions can apply differently based on the individual's immigration status and circumstances.

Eligibility Criteria

To qualify for cancellation of removal, individuals must meet specific requirements. These vary depending on whether the individual is a lawful permanent resident (LPR) or a non-permanent resident. Below are the key eligibility criteria for each category:

For Lawful Permanent Residents (LPRs):

Continuous Residence: Must have been a lawful permanent resident for at least 5 years.
Continuous Physical Presence: Must have resided continuously in the United States for 7 years after having been admitted in any status.
Not Convicted of an Aggravated Felony: Defined under INA § 101(a)(43).
Discretionary Relief: Must demonstrate that they deserve relief as a matter of discretion.

For Non-Permanent Residents:

Continuous Physical Presence: Must have been physically present in the United States for at least 10 years.
Good Moral Character: Must demonstrate good moral character during the 10-year period.
Not Convicted of Certain Criminal Offenses: Must not have been convicted of offenses that make them inadmissible or removable.
Exceptional and Extremely Unusual Hardship: Must prove that removal would result in exceptional and extremely unusual hardship to a U.S. citizen or LPR spouse, parent, or child.

How Does the Cancellation of Removal Process Work?

The cancellation of removal process involves several steps and can be complex. Here is a step-by-step guide:

Initiation of Removal Proceedings: The process begins when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) in immigration court.
Filing Application: Eligible individuals can apply for cancellation of removal by filing Form EOIR-42B for non-permanent residents or Form EOIR-42A for LPRs with the immigration court.
Master Calendar Hearing: The initial hearing where procedural matters are addressed, and the applicant can express the intention to apply for cancellation of removal.
Individual Hearing: A detailed hearing where evidence is presented, and the immigration judge evaluates the applicant's eligibility based on the criteria outlined above.
Judge's Decision: The immigration judge will grant or deny the application based on the evidence and arguments presented.
Appeal: If the application is denied, the decision can be appealed to the Board of Immigration Appeals (BIA).

What Are Common Challenges in Cancellation of Removal Cases?

Cancellation of removal cases can present several challenges, and understanding these can help applicants better prepare:

Proving Continuous Presence: Documenting continuous physical presence can be difficult, especially when there are gaps in records.
Establishing Good Moral Character: Applicants must provide evidence of good moral character, which can be subjective and requires careful documentation.
Demonstrating Hardship: For non-permanent residents, proving that removal would cause "exceptional and extremely unusual hardship" to a qualifying relative is often the most challenging aspect. This requires substantial evidence and documentation.
Discretionary Nature: Even if eligibility criteria are met, the grant of cancellation of removal is discretionary, meaning the immigration judge has the authority to approve or deny based on factors like family ties, employment history, and community involvement.

Practical Tips and Recommendations

Here are some practical tips to increase the likelihood of a successful cancellation of removal application:

Gather Comprehensive Documentation: Collect documents that demonstrate continuous presence, such as utility bills, tax records, or school records.
Character References: Obtain letters from employers, community leaders, or religious figures attesting to your good moral character.
Medical and Financial Evidence: If claiming hardship, provide medical records, financial statements, and expert affidavits to support the claim.
Legal Representation: Consider hiring an experienced immigration attorney to navigate the complexities of the process and provide guidance.
Stay Informed: Keep abreast of any changes in immigration law or policies that may affect your case by regularly checking the USCIS and EOIR websites.

What Are the Next Steps If You're Considering Cancellation of Removal?

If you believe you may qualify for cancellation of removal, consider taking the following steps:

Consult an Immigration Attorney: Seek legal advice to evaluate your eligibility and prepare your case effectively.
Prepare Your Application: Gather all necessary documents and evidence to support your application.
Attend Hearings: Participate in all scheduled hearings and comply with court procedures.
Monitor Case Status: Stay informed about the status of your case and any potential appeals.
Educate Yourself: Familiarize yourself with the process, legal requirements, and potential outcomes.

By understanding the nuances of cancellation of removal and preparing thoroughly, individuals facing deportation can take proactive steps to protect their future in the United States.

About This Post

This analysis was inspired by a public discussion on Reddit: https://reddit.com/r/immigration/comments/1pm6inr/help_cancelation_of_removal_advice/

Immigration law is complex and constantly evolving. While this post provides general information based on current law and policy, every situation is unique.

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This post provides general information and is not legal advice. Laws can change and your facts matter. To get advice for your situation, schedule a consultation with an attorney.

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What You Need to Know About Cancellation of Removal in the US