Immigration

Cancellation of Removal: Who Is Eligible

If you can prove that you meet the eligibility requirements and deserve an act of discretion by the immigration court judge, you may avoid removal and receive a green card using a form of relief known as "cancellation of removal" under ยง 240A of the Immigration and Nationality Act (I.N.A.).

Whether you are a lawful permanent resident (have a green card) or have no status in the U.S., being placed into removal proceedings can be terrifying, and the stakes are high. If the U.S. government proves its case against you, the immigration judge will order that you be returned to your home country. However, the judge has another option here. If you can prove that you meet the eligibility requirements and deserve an act of discretion by the judge, you may seek a form of relief known as "cancellation of removal," under § 240A of the Immigration and Nationality Act (I.N.A.).

Cancellation of removal applications can be filed only during removal proceedings. If the application is granted, the alien is awarded or keeps permanent resident status.

Eligibility Requirements for Cancellation of Removal

The eligibility requirements differ for people who are already lawful permanent residents and those who are not.

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

  • has already been a lawful permanent resident for at least five years
  • 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 (the NTA), and
  • has not been convicted of an aggravated felony.

Lawful permanent residents are not required to show potential hardship to either themself or a family member if they were to be removed. This is a one-time only form of relief, however. A lawful permanent resident who once again becomes deportable will not be able to use it as a defense.

Nonpermanent Residents. A foreign national who is otherwise inadmissible to or deportable from the U.S. may be eligible for cancellation of removal and an adjustment of status to lawful permanent resident if the person files Form EOIR-42B and is able to establish to the immigration judge's satisfaction that he or she:

  • has been physically present in the United States for a continuous period of ten years prior to receiving the notice to appear (NTA)
  • has been a person of good moral character during the ten-year period
  • has not been convicted of a criminal offense matching those described under I.N.A. § 212(a)(2) (concerning crimes of moral turpitude), I.N.A. § 237(a)(2) (a long list of crimes that make one deportable, such as crimes of moral turpitude, aggravated felonies, sex offenses, domestic violence, and so on), or I.N.A. § 237(a)(3) (concerning visa fraud and other use of false documents, and falsely claiming to be a U.S. citizen), and
  • has a U.S. citizen or lawful permanent spouse, parent, or child, which family member would suffer exceptional and extremely unusual hardship if the person was removed from the United States.

Alternatively, a nonpermanent resident can qualify to have removal cancelled in a situation where he or she cannot claim hardship based on a U.S. citizen or permanent resident family member because that person is abusive. This is often referred to as VAWA Cancellation of Removal, because it comes from the Violence Against Women Act (VAWA)

The applicant will need to show that he or she:

  • was the victim or battery or extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent, or his or her child was subjected to such mistreatment
  • maintained a continuous physical presence in the United States for three years prior to receiving the notice to appear
  • has been a person of good moral character for the three-year period
  • is not inadmissible under I.N.A. § 212(a)(2)-(3) or deportable under I.N.A. § 237(a)(1)(G), (2)-(4)
  • has not been convicted of an aggravated felony, and
  • that his or her removal would result in extreme hardship to the alien or the alien's child who is the child of a U.S. citizen or lawful permanent resident, or that
  • he or she is a child whose removal would result in extreme hardship to the alien or the alien's parent.

Factors and Evidence the Immigration Judge Will Consider

An immigration judge has discretion to grant or deny applications for cancellation of removal. In other words, a person who meets all the eligibility requirements can still be denied if the judge is not persuaded that he or she merits this special treatment.

In determining whether cancellation is warranted, the immigration judge will consider the applicant's documentary evidence and testimony, with a particular focus on the person's:

  • length of continuous residence in the United States (which the applicant will need to prove with things like rent receipts, credit card statements, school and medical records, and more)
  • family and communities ties in the United States
  • community service work
  • participation in clubs and religious organizations
  • family members' cultural familiarity, job opportunities, medical and psychological needs, and language ability in the country of proposed removal
  • work history
  • service in the U.S. military
  • timely filing and payment of taxes
  • acceptance of responsibility for crimes, and
  • proof of rehabilitation after any commission of crime or abuse of drugs or alcohol.
In the case of applications by nonpermanent residents, notice that hardship to the applicant him- or herself will not be directly considered by the judge. The law allows the judge to consider only how family members would suffer, either if separated from the parent who is being removed, or if they accompany the removed person to a country where they may not speak the language or be able to find appropriate or necessary schooling, work, or medical care.
A good deal of effort is involved in pulling together all the documents that will be needed to prove the items on the list above, and in preparing to testify before the judge (and survive cross-examination by the attorney representing the U.S. government). For that reason, and because of the procedural complications of representing oneself in immigration court, hiring an immigration attorney to assist is an excellent idea.

Appeal From a Denial of Cancellation of Removal

If an application for cancellation of removal is denied by an immigration judge, the applicant usually has the right to file an appeal with the Board of Immigration Appeals (B.I.A.).

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