Cancellation of Removal

An alien who is deportable from the United States may still be able to remain if an immigration judge has canceled their departure.  The 1996 act created a form of relief for aliens in removal proceedings and named it "cancellation of removal."  There are two types of cancellation of removal: the first is cancellation of removal for permanent residents, while the second is cancellation of removal and adjustment of status for non-permanent residents.

Situational

Cancellation of Removal for Permanent Residents:
Cancellation of removal for permanent residents (previously known as §212(c) relief), is available to an alien who is inadmissible or deportable from the the United States if the alien has:

  1. Been an alien lawfully admitted for permanent residence for not less than five years,
  2. Resided in the United States continuously for seven years after having been admitted in any status, and
  3. Not been convicted of any aggravated felony.

Cancellation of Removal for Non-Permanent Residents:
Cancellation of removal and adjustment of status for non-permanent residents, (previously known as suspension of deportation), is available to an alien who is inadmissible or deportable from the United States if the alien has:

  1. Been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application;
  2. Been a person of good moral character during such period;
  3. Not been convicted of a criminal offense or security or terrorist related crime; and
  4. Establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Special Rule for Battered Spouse / Child:
A special rule exists for a battered spouse or child.  In such cases an immigration judge may cancel removal if the alien demonstrates that:

  1. He or she has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident, or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent;
  2. The alien has been physically present in the United States for a continuous period of not less than three years immediately preceding the date of such application;
  3. The alien has been a person of good moral character during such period;
  4. The alien is not inadmissible as a criminal or terrorist, and has not committed an aggravated felony; and
  5. The removal would result in extreme hardship to the alien, the alien's child, or (in the case of an alien who is a child), to the alien's parents.

Cancellation of removal for permanent resident aliens does not specifically require that the alien have been continuously physically present in the United States, nor any specific showing of hardship.  It also does not expressly require any showing of reformation or rehabilitation.  However, court interpretations of the previous §212(c), require that these factors be considered by the court in deciding whether to grant the relief requested.  (A more thorough review of the factors, which a court will consider in deciding whether to grant relief, will be discussed shortly).

Cancellation of removal for non-permanent residents (formerly suspension of deportation) has been made much more difficult to obtain under the new law.  For instance, the 1996 Act requires that the hardship be "exceptional and extremely unusual" whereas previously it had only been "extreme" hardship.  Congress clearly stated that the alien must provide evidence of harm "substantially beyond that which ordinarily would be expected to result from the alien's deportation."  In addition, the hardship must now be suffered by the alien's US citizen or lawful permanent resident spouse, parent, or child, and can no longer be only the alien's own hardship.  Furthermore, the new act restricts this form of relief to any alien who has not been a person of good moral character at any time during the relevant statutory period.

Physical Presence and Continuous Residence:
Another area changed by the 1996 Act relates to physical presence and continuous residence.  The new law states that any departure of more than 90 days, or aggregate absences of more than 180 days, breaks physical presence.  In addition, the new law provides that physical presence and continuous residence is terminated upon the earlier of either of two occurrences: (1) when the alien is served with a notice to appear; or (2) when the alien has committed an offense that would render the alien deportable as a criminal or subversive.  Therefore, any time spent in the US after either of these occurrences would not add to the time necessary for the alien to apply for cancellation of removal.

Factors that a Judge will consider:
What are the factors that a judge will consider in determining whether the alien has established hardship?  The Board of Immigration Appeals has listed twelve specific factors that it would consider in determining whether hardship existed in a particular case.  These factors include:

  1. Economic hardship;
  2. The economic and political conditions in the country to which the alien will return;
  3. Financial status, including business and occupation;
  4. The age of the applicant and family;
  5. The health of applicant and family;
  6. Length of residence in the US;
  7. Family ties in the US;
  8. Adaptation to the American way of life;
  9. Attachment to American friends and community;
  10. Involvement in civic and other community activities;
  11. The possibility of obtaining permanent residence in some other way; and
  12. The alien's immigration history.

It is important to remember that the alien has the burden of proving that hardship exits.  Therefore, the alien should be prepared to bring witnesses to court together with documentary evidence that establishes the key points in his or her case.  Where witnesses are not available, the alien should bring affidavits of witnesses.  These affidavits should be thorough and complete. You can also request the judge to issue a subpoena for documents or to take a deposition of a key witness.  If your case is well prepared, with good documentation and strong witnesses, you will have a good chance to obtain the relief that you are seeking.

The new act also imposes an annual limit of 4000 on the number of aliens who can be granted cancellation of removal and adjustment of status.  In addition, cancellation is not available to anyone whose removal was previously canceled or whose deportation was suspended under the previous suspension provisions, or who was previously granted relief under the former §212(c).  Likewise, cancellation is not available for ten years to a person who was ordered removed after failing to appear at a removal hearing, unless there were exceptional circumstances for the failure to appear.  It also is unavailable for ten years to anyone who failed to depart under the new voluntary departure provisions.  Furthermore, aliens who are terrorists, who entered as crewmen, some non-immigrant exchange aliens, and those who have persecuted others are also not eligible for cancellation of removal.

An application for cancellation of removal, together with supporting documentation and filing fee, is filed on Form EOIR-42A (for permanent residents) or EOIR-42B (for non-permanent residents) with the immigration judge having jurisdiction over the proceedings.

Requirements

Permanent Residents:

  1. You must have been lawfully admitted.
  2. You must have resided in the U.S. continuously for at least seven years after having been initially admitted.
  3. You must have been a permanent resident for at least five years.
  4. You must have not been convicted of any aggravated felony.

Non-Permanent Residents:

  1. You must have been physically present in the U.S. for a continuous period of at least 10 years prior to applying for cancellation of removal.
  2. You must have been considered a person of good moral character during this period.
  3. You must not have been convicted of a criminal offense during this period.
  4. You must not have been convicted of a security or terrorist related crime during this period.
  5. You must be able to establish that your removal would result in exceptional and extremely unusual hardship for your citizen or permanent resident spouse, parents or children.

Process

For Permanent Residents:

  1. Complete Form EOIR-42A
  2. Include application and biometric fees or Judge’s fee waiver order.
  3. Include a copy of the pre-order instructions.
  4. Include a copy of Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative before Immigration Court, if you are represented by an attorney.
  5. File a copy of the Form EOIR-42A and the above documentation with USCIS.
  6. You will receive a fee receipt notice and an appointment notice for the Application Support Center to collect your biometrics. Keep copies of everything.
  7. You (and any dependents) must then attend the appointment and obtain a biometrics confirmation document.
  8. File the original Form EOIR-42A with all supporting documentation, the fee receipt notice (unless you were granted a fee waiver) with the Immigration Court handling the case.
  9. Retain your biometrics confirmation document for future Immigration hearings.

For Non-Permanent Residents:

  1. Complete Form EOIR-42B.
  2. Include application and biometric fees or Judge’s fee waiver order.
  3. Include a copy of the pre-order instructions.
  4. Include a copy of Form EOIR-28 if you are represented by an attorney.
  5. File a copy of the Form EOIR-42B and the above documentation with USCIS.
  6. You will receive a fee notice and an appointment notice for the Application Support Center to collect your biometrics. Keep copies of everything.
  7. You (any any dependents) must then attend the appointment and obtain a biometrics confirmation document.
  8. File the original Form EOIR-42B with all supporting documentation, the fee receipt notice (unless you were granted a fee waiver) with the Immigration Court handling the case.
  9. Retain your biometrics confirmation document for future Immigration hearings.

Evidence

In Absentia Removal Proceedings:
If a Foreign National in removal proceedings fails to attend a court hearing then they may be subject to removal. The Immigration and Nationality Act allows for an immigration judge to order the individual removed if in absentia. In order to do this, though, Immigration must be able to prove that the individual in question was sent a notice informing them of the hearing and that the individual is eligible for removal from the United States. However, there are two situations in which the individual in the removal proceedings can reopen their case. If the individual in the proceedings can prove that they did not receive a notice informing them of the hearing or if they can prove that there were exceptional circumstances explaining why they were not able to attend then they will be able to reopen their case.

Evidence Needed to Support Cancellation of Removal for Permanent Residents:

  1. Include a marriage certificate if you are married.
  2. Include a divorce judgment, for both spouses, if you are married.
  3. Include a death certificate if your spouse has passed away.
  4. Include birth certificates, U.S. passports, naturalization certificates or green cards of all children, if applicable.
  5. Include birth certificates, U.S. passports, naturalization certificates or green cards of your spouse, if applicable.
  6. Include birth certificates, U.S. passports, naturalization certificates or green cards of your parents, if applicable.
  7. Include birth certificates, U.S. passports, naturalization certificates or green cards of your siblings, if applicable.
  8. Include copies of all federal and state income tax returns for the last seven years.
  9. Include proof of unemployment payments, if applicable.
  10. Include proof of disability payments, if applicable.
  11. Include report or letter from court, probation or parole officer, if applicable.
  12. Include proof of any volunteer or community service that you have rendered.
  13. Include proof of participation in rehabilitation program, if applicable.
  14. Include any psychological reports, if applicable.
  15. Include a letter from your church, pastor, minister or priest, if available.
  16. Include school records and diplomas, if available.
  17. Include proof of child support payments and a copy of the court order for child support, if applicable.
  18. Include proof of welfare payments, if applicable.
  19. Include proof of past and present employment.
  20. Include proof of service in U.S. Armed Forces, if applicable.
  21. Include your arrest record and court dispositions for any criminal cases, if applicable.
  22. Include Police clearance letter from your local police department.
  23. Include proof of any positive factors that you think may help your case.

Evidence needed to Support Cancellation of Removal for Non-Permanent Residents:

  1. Include proof of residence in the U.S. for at least ten continuous years.
  2. Include your marriage certificate, if applicable.
  3. Include a divorce judgment, if applicable.
  4. Include birth certificates for your children, if applicable.
  5. Include copies of green cards for your children, if applicable.
  6. Include a copy of your spouse’s birth certificate, if applicable.
  7. Include a copy of your spouse’s green card, if applicable.
  8. Include a copy of your parent’s green card, if applicable.
  9. Include a copy of your sibling’s green card, if applicable.
  10. Include copies of federal and state income tax returns for the last ten years.
  11. Include proof of past and present employment.
  12. Include proof of unemployment payments, if applicable.
  13. Include proof of disability payments, if applicable.
  14. Include FBI or acceptable alternative report of your good moral character.
  15. Include proof of extremely unusual and outstanding hardship that will be caused to your parents, spouse or children who are currently citizens or permanent residents as a result of your deportation.
  16. Include proof of any volunteer or community service that you have rendered.
  17. Include a letter from your church, pastor, minister or priest, if available.
  18. Include any school records or diplomas if available.
  19. Include proof of child support payments and a copy of the court order for child support, if applicable.
  20. Include proof of welfare payments, if applicable.
  21. Include proof of any positive factors that you think may help your case.

FAQ

Q1. What should I do if I do not receive my biometrics appointment notice?
If you have already submitted your Form EOIR 42A or B, depending on your status, and you have not received your appointment notice then you should wait for at least three weeks. If it still has not arrived then you should call (800) 375-5283to inquire about the status of your appointment notice.

 
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