Cancellation of Removal

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You might have heard that if you have been living in the United States for a decade and you have no criminal convictions, you have gainful employment, and you have been paying taxes, you can apply for a green card. If you are wondering whether this is true or not, we have good news for you, you can apply for a green card if you have been living in the U.S. for ten years.

In fact, even if you have no immigration status or you have entered the country without inspection, you can still apply for a green card after living here for ten years. Obtaining a green card this way is known as “cancellation of removal for non-permanent residents.”

However, before you get too excited, it is important to note that the standards and requirements needed to be approved for cancellation of removal are very hard to meet. Unfortunately, this type of immigration relief is usually available for a limited number of cases.

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What Is Cancellation of Removal?

Cancellation of removal is one way to avoid deportation or removal. If you want to apply for cancellation of removal, you will need to have an open deportation or removal case in Immigration Court before an Immigration Judge. Without a date to appear in in Immigration Court, you won’t be able to apply for cancellation of removal.

In addition to this stipulation, if you have previously appeared in Immigration Court and your case was closed because you got a final order of removal or deportation from the judge, then you are ineligible to apply, unless you are able to convince the immigration Court to issue a motion to reopen your case.

Cancellation of removal is considered a discretionary form of relief, which means that, if you are able to demonstrate that you meet every eligibility requirement, the Immigration Judge can still decide that you shouldn’t be approved and can deny your case.

Forms EOIR-42A, EOIR-42B & I-765

• As a permanent resident, you will need to file a Form EOIR-42A, Application for Cancellation of Removal for Certain Permaent Residents.
• As a nonpermanent resident, you will need to file a form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.

In some cases, you may also file a Form I-765, Application for Employment Authorization if you have a Form EOIR-42A or Form EOIR-42B pending and are hoping to cancel your removal and seek an employment-based visa.

Who Is Eligible for Cancellation of Removal?

In order to qualify for cancellation of removal, you will need to show the following things:

• Ten Year Residence in the U.S: You must prove that you have ten years of continuous presence in country. This time-frame is measured from the date you entered the country until the date that the Department of Homeland Security issued you a Notice to Appear in Immigration Court. If you have left the country for a single period of 90 days, or a scattered period of 180 days, you will not meet the necessary residence requirement for cancellation of removal.
• Good Moral Character: You have to show that during your 10 year stay, you have been a person of good moral character.
• Family in the U.S.: Proof of a parent, child or spouse in the United States who is either a resident alien or citizen.
• No Convictions Eligible for Deportation: Certain criminal offenses that make you inadmissible or deportable will disqualify you for cancellation of removal.
• Exceptional & Extremely Unusual Hardship: You will have to establish that being removed from the country would cause “exceptional and extremely unusual hardship” for you, your spouse, child, or parent.

The first four are considered pre-requisites and are decided in the preliminary hearings. The fifth requirement is decided in an individual trial setting. If you are placed in removal proceedings one day before you reach the 10 year requirement, or if you are found to be a person who is not of good character, you are immediately disqualified. Because of this, it is extremely important to prove the first four factors on the first court date.

Cancellation of Removal for Permanent Residents

Lawful permanent residents (LPR), also known as resident aliens, may seek cancellation of removal to stay in the United States under certain conditions. In order to qualify, you must meet the requirements of the Immigration and Nationality Act (INA). Our knowledgeable Dallas immigration attorney can talk with you to discuss your situation. Our firm can provide efficient legal services as you seek a beneficial outcome.

In order to seek cancellation of removal as an LPR, you must:

• Have not been convicted of an “aggravated felony” charge;
• Have maintained LPR status for at least 5 years prior to filing the application;
• Have lived for at least 7 years with continuous residence in the U.S. after lawful admission.

If you have committed a criminal offense in sections 212(a)(2) or 237(a)(2) of the INA, or if you have committed a security offense under section 237(a)(4) of the INA, you may still be able to seek cancellation of removal. Every case is different. Courts must consider all relevant factors when making a determination. Relief is granted with discretion.

Cancellation of Removal for Undocumented Immigrants

Long-term, non-lawful permanent residents (NPR), also known as undocumented or illegal immigrants, may be able to seek cancellation of removal to stay in the United States if they meet certain requirements.

By law, you may be eligible for cancellation of removal if you:

• Have been physically present in the United States for a continuous 10-year period or longer;
• Have acted as a good moral person during the last 10 years;
• Have qualifying family (parent, child, spouse with resident or citizen status) who would suffer extreme hardship if you are removed;
• Have no convictions under §212(a)(2), §237(a)(2), or §237(a)(3) in the INA.

Ineligibility for Cancellation of Removal Under the Immigration Nationality Act

Under section 240A(b)(1) of the Immigration Nationality Act (INA), you are not eligible for cancellation of removal if you:

• Are an alien previously granted relief and cancellation under INA laws prior to the IIRAIRA;
• Entered the country as a crewman after June 30, 1964;
• Are an alien who is inadmissible or deportable under INA regulations.

In order to achieve cancellation of removal, you must meet the standards of the INA. In addition, you may be able to change your status from an undocumented immigrant to a lawful permanent resident (Green card holder or LPR) once you achieve cancellation of removal.

Even if you don’t meet all the requirements, then you may still be able to seek relief, depending on the circumstances. For example, if your child was a victim of violence from your U.S.-citizen spouse, or you are not inadmissible or deportable under certain restrictions of the INA, then you may be able to seek cancellation of removal.

This relief is granted based on the discretion of the court. Each case is different and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 put a limit on the number of cases involving cancellation of removal allowed each year.

If you were admitted to the country as a nonimmigrant exchange alien for graduate medical training or education, then you will not be eligible for cancellation even if you fulfilled the 2-year permanent residency requirement. Furthermore, if you were admitted to the country for a reason other than to receive graduate medical training or education and failed to fulfill the 2-year requirement or obtain a waiver, then you will not be able to seek cancellation of removal.

Undocumented immigrants who ordered, assisted, or participated in persecution against an individual because of race, political opinion, nationality, religion, or membership in a particular group will also not be able to seek relief through the INA.

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Proving “exceptional and extremely unusual hardship” is one of the most difficult aspects of qualifying for cancellation of removal. Plenty of these cases have been denied because an applicant couldn’t provide significant proof that deportation would cause them, their child, spouse or parent to suffer hardship substantially worse than the hardship normally expected from being deported to an underdeveloped country.

If you want to successfully qualify for cancellation of removal, you will need an experienced immigration attorney by your side. At Mathur Law Offices, we have been helping the people of Dallas, Fort Worth, and Denton resolve their immigration issues for more than 25 years. We have the skills and resources that you will need to successfully obtain a cancellation of removal order. Let our legal team fight for you.

Contact our team of Dallas immigration attorneys to discuss how we can help you. Schedule your consultation today!