Cancellation of Removal
What is Cancellation of Removal?
Cancellation of Removal is a form of relief available to lawful permanent residents (LPRs) or certain non-LPR residents who are in removal proceedings and facing deportation. It allows eligible LPRs or certain non-LPRs to request the immigration judge to cancel their removal and allow them to remain in the United States.
What are the requirements for the LPR Cancellation of Removal?
To be eligible for Cancellation of Removal as an LPR, the individual must show that he/she has been a lawful permanent resident for at least five years; has resided continuously in the United States for at least seven years after being admitted in any status; and has not been convicted of an aggravated felony.
What kind of factors would the immigration judge weigh to determine the LPR Cancellation of Removal?
There are various factors the immigration judge will consider to determine whether the individual meets the eligibility for the Cancellation of Removal. Along with the requirements above, the judge will consider the following factors:
- Family Ties: The judge will consider the individual’s family ties in the United States, particularly the presence of a U.S. citizen or lawful permanent resident spouse, parent, or child.
- Immigration History: The judge will review the individual’s immigration history, including any prior violations, such as overstays, unauthorized employment, or other immigration-related issues.
- Criminal Record: The judge will examine the individual’s criminal history. While certain offenses may render the individual ineligible for Cancellation of Removal, the judge will consider the nature and severity of the convictions and the individual’s rehabilitation efforts.
- Moral Character: The judge will assess the individual’s moral character, including evidence of good moral character during the relevant period. Factors such as criminal conduct, fraud, or other negative behavior may impact moral character determination.
- Contributions to the Community: The judge may consider evidence of the individual’s positive contributions to the community, such as employment history, payment of taxes, volunteer work, or other activities demonstrating integration and positive character.
- Hardship: The judge will evaluate the exceptional and extremely unusual hardship that the individual’s qualifying relatives, such as a U.S. citizen or lawful permanent resident spouse, parent, or child, would suffer if the individual were to be removed from the United States.
What are the requirements for the non-LPR Cancellation of Removal?
To be eligible for Cancellation of Removal as an LPR, the individual must show that he/she has been physically present in the U.S. for a continuous period of at least ten years immediately preceding the date the Cancellation of Removal application is filed; has established good moral character during the ten years; and they should demonstrate that their removal would result in exceptional and extremely unusual hardship to their U.S. citizen or LPR spouse, parent, or child. Hardship is evaluated based on the circumstances of each case and factors such as the age, health, and family ties.
How would Ten-Year Continuous Physical Presence be counted?
The ten-year continuous physical presence is generally calculated from the date of entry into the United States. However, certain actions or events may interrupt the continuity of physical presence, such as departures from the country or certain criminal convictions.
What is the Good Moral Character Requirement?
An individual seeking Cancellation of Removal must establish good moral character during the ten-year period immediately preceding the application for cancellation. It means they must show that they behaved lawfully and morally during that time. Factors that may be considered in assessing good moral character for LPRs include:
- Criminal History: Having a criminal record, especially for certain crimes, can negatively impact a determination of good moral character. Serious crimes or crimes involving moral turpitude can be particularly detrimental.
- Immigration Violations: Engaging in fraud or other immigration violations can raise concerns about a lack of good moral character.
- Honesty and Integrity: Demonstrating honesty and integrity in personal and professional conduct can support a finding of good moral character.
- Community Involvement: Active participation in the community, volunteering, or contributing positively to society can be favorable in establishing good moral character.
- Financial Responsibility: Meeting financial obligations, paying taxes, and demonstrating financial stability can reflect good moral character.
What is the Hardship Requirement for Cancellation of Removal?
The hardship requirement for Cancellation of Removal is an essential element that must be met to be eligible for this relief from deportation or removal. The hardship requirement focuses on demonstrating that the removal of the individual from the United States would result in exceptional and extremely unusual hardship to certain qualifying relatives who are U.S. citizens or lawful permanent residents.
The qualifying relatives for Cancellation of Removal hardship include:
- U.S. Citizen or Lawful Permanent Resident Spouse
- U.S. Citizen or Lawful Permanent Resident Parent
- U.S. Citizen or Lawful Permanent Resident Child
To establish exceptional and extremely unusual hardship, the applicant must provide evidence that the qualifying relatives would suffer hardships beyond what would typically be expected if the individual were to be removed from the United States.
Examples of hardships that may be considered include:
- Medical Hardship: Serious medical conditions or disabilities that require ongoing treatment or specialized care that is not readily available in the home country.
- Educational Hardship: Lack of educational opportunities or specialized educational needs that cannot be met in the home country.
- Emotional Hardship: Separation from close family members, such as children, resulting in significant emotional distress or disruption to family unity.
- Financial Hardship: Inability to meet basic needs or maintain a reasonable standard of living due to economic conditions in the home country.
- Country Conditions: Demonstrating that the conditions in the home country, such as violence, instability, or lack of access to essential services, would pose a significant risk or hardship to the qualifying relatives.
The hardship requirement is subjective, and each case is evaluated based on its unique circumstances. The applicant must provide substantial evidence and arguments to support their claim of exceptional and extremely unusual hardship.
It is important to consult with an immigration attorney to navigate the legal options, develop a defense strategy, and ensure proper representation throughout the Cancellation of Removal process. The attorneys at Tanner Law Offices, LLC. are experienced in representing clients facing removal proceedings and helping them with any other immigration-related matters. Please contact our office at 717-731-8114 to schedule a consultation to discuss your case.