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Cancellation of Removal

A non-permanent foreign national or a permanent resident who is placed in removal proceedings may be able to fight deportation by filing an application for "cancellation of removal."

Cancellation for Legal Permanent Residents (Green Card Holders):

Section 240A(a) of the Immigration and Nationality Act defines who, as a U.S. legal permanent resident (LPR), is eligible to file for cancellation of removal. The person must 1) have been an alien lawfully admitted for permanent residence for not less than five years; 2) have resided in the United States for seven years after having been admitted in any status, and 3) have not been convicted of an aggravated felony.

Time Requirements:

An LPR applicant who is in removal proceedings because of one or multiple criminal convictions, (none of which is considered an aggravated felony) may waive those offenses via a cancellation of removal application.

The five years' required time spent as an LPR will be cut off on the date of filing the application. However, the required continuous presence of seven years for an LPR ends when the person is served with a Notice to Appear, or when the person has committed an offense that makes him or her inadmissible to the U.S. or removable from the U.S.

Positive Factors:

Once the Immigration Judge has determined that the foreign national is eligible to file an application for cancellation of removal, the judge will weigh the positive equities against the negative factors. An applicant for cancellation should seek to demonstrate as many positive factors which can include but is not limited to the following: 1) close family relatives in the United States who would suffer hardship if the foreign national is removed from the U.S., 2) family ties in the United States, 3) a history of longtime residence in the U.S., 4) positive employment history and payment of taxes, 5) business or property ties in the U.S., 6) been rehabilitated and is of good moral character.

The judge may also take into account any other favorable factors, such as the age of the applicant at the time of U.S. entry, conditions in the country to which he or she would be removed, ties to the country of removal, the financial impact of departure from the U.S., and significant health conditions.

Cancellation of Removal for Nonpermanent Residents:

These are the requirements for cancellation of removal and adjustment of status for certain nonpermanent residents: 1) been physically present in the U.S. for a continuous period of not less than ten years immediately preceding the date of application; 2) been a person of good moral character during such period; 3) not been convicted of certain offenses, and 4) established that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a citizen of the U.S. or green card holder.

Good Moral Character Requirement:

When an applicant is convicted of a crime, it may make him or her ineligible to apply for cancellation of removal as a nonpermanent resident since the applicant may not fulfill the good moral character requirement. Whether a crime renders the person ineligible for lack of good moral character will depend on the Immigration Judge's evaluation of the seriousness of the offense, as well as case law.

Extreme and Unusual Hardship Requirement:

One of the most difficult requirements to meet in a cancellation of removal case for a nonpermanent resident is the extreme and unusual hardship requirement. The person not only is required to have a qualifying relative such as a child, spouse, or parent who is a legal permanent resident or citizen of the United States, but also demonstrate that the applicant's removal would cause hardship to that qualifying relative that rises beyond the normal hardship that is expected in case of removal, such as separation or financial hardship.

Such hardship can most readily be proven when the applicant's qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant's native country.

Whether the foreign national is a permanent resident or nonpermanent resident applying for cancellation of removal, the use of witnesses is highly recommended in addition to providing a wide variety of documentation reflecting the positive factors listed above.

To understand the specifics of your or your loved one's cancellation of removal options, please contact us at Bhagat Law. We are happy to help.

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