Aliens subject to removal may seek relief by applying for cancellation of removal under § 240A of the Immigration and Nationality Act (INA). The applications are normally filed during removal proceedings in the Immigration Court or before the Board of Immigration Appeals (BIA). If the application is granted, the alien is awarded or keeps permanent resident status.

Eligibility Requirements

The eligibility requirements differ between aliens who are lawful permanent residents and those who are nonpermanent residents.

Lawful Permanent Residents. To be eligible for cancellation of removal, a lawful permanent resident must file Form EOIR-42A and must establish that he or she:

  • Has been a lawful permanent resident for at least five years at the time the application is filed
  • Has continuously resided in the United States for at least seven years after being lawfully admitted and before receiving the notice to appear at the removal proceeding, and
  • Has not been convicted of an aggravated felony

Lawful permanent residents are not required to show hardship for either the applicant or a family member.

Nonpermanent Residents. An alien who is otherwise inadmissible or deportable may be eligible for cancellation of removal and an adjustment of status to lawful permanent resident, if the alien files Form EOIR-42B and is able to establish that:

  • The alien has been physically present in the United States for a continuous period of 10 years prior to receiving the notice to appear
  • The alien has been a person of good moral character during the 10-year period
  • The alien has not been convicted of a criminal offense under § 212(a)(2), § 237(a)(2) or § 237(a)(3) of the INA, and
  • The alien's US citizen or lawful permanent resident family members would suffer an exceptional and extremely unusual hardship if the alien was removed

Alternatively, a nonpermanent resident can qualify to have removal cancelled upon showing that:

  • The alien or the alien's child was battered or subjected to extreme cruelty by the alien's US citizen or lawful permanent resident spouse or parent
  • The alien maintained a continuous physical presence in the United States for three years prior to receiving the notice to appear
  • The alien has been a person of good moral character for the three-year period
  • The alien is not inadmissible under § 212(a)(2)-(3) of the INA or is not deportable under § 237(a)(1)(G), (2)-(4) of the INA
  • The alien has not been convicted of an aggravated felony, and
  • The alien's removal would result in extreme hardship to the alien or the alien's child who is the child of a US citizen or lawful permanent resident, or
  • The alien is a child whose removal would result in an extreme hardship to the alien or the alien's parent

Application Review

An immigration judge has discretion to grant or deny applications for cancellation of removal. In determining whether cancellation is warranted, the immigration judge will consider:

  • The length of residence in the United States
  • Family and communities ties in the United States
  • Community service work
  • Participation in clubs and religious organizations
  • Language ability in the country of proposed removal
  • Work history
  • Timely filing and payment of taxes
  • Acceptance of responsibility for crimes
  • Proof of rehabilitation

Review of Denials

If an alien's application for cancellation of removal is denied by an immigration judge, the alien usually has the right to file an appeal with the BIA. Generally, a final administrative decision denying the application cannot be reviewed by a federal court.