Cancellation of Removal
Cancellation of Removal for LPR’s
[INA §240(a), 8 USC §1229b(a), 8 CFR §§1240.11(a), 1240.20]
The Attorney General (AG) may cancel removal of an LPR if person: (1) Has been lawfully admitted for permanent residence for 5 years; (2) Has resided in U.S. continuously for 7 years after being admitted to any status; (3) Has not been convicted of an aggravated felony, and ; (4) Warrants a favorable exercise of discretion. Application is submitted using Form EOIR-42 (if before Immigration Judge) and Form I-191 (if before District Director). If cancellation of removal is granted, it is granted indefinitely (absent fraud or error) and returns the person back to LPR status previously held. 8 CFR §§212.3(d), 1212.3(d).
Continuous Residence Requirement
Continuous residence begins after having been admitted in any status. Once Notice to Appear (NTA) has been served, continuous residence is deemed to end. INA §240(d)(1)(A). Continuous residence is also deemed to end upon the person’s commission of certain crimes referred to in INA §212(a)(2). INA §240A(d)(1)(B).
Discretionary Eligibility for Cancellation of Removal
Positive factors indicative of discretionary eligibility:
- Family ties in U.S. ;
- Long U.S. residency;
- Proof of hardship to respondent and respondent’s family if deportation takes place;
- Military service;
- Employment history;
- Property ownership or business ties;
- Service in the community;
- Genuine rehabilitation (if criminal record applicable);
- Proof of good character.
Negative factors weighing against discretionary eligibility:
- Additional significant immigration violations. ;
- Criminal record;
- Proof of bad character or undesirability
Cancellation of Removal for Non-LPR’s
[INA §240A(b), 8 USC §1229b(b), 8 CFR §§1240.11(a), 1240.20]
The Attorney General (AG) may cancel removal of an LPR if person: (1) Has been physically present in the U.S. for a continuous period of not less than 10 years; (2) Has been a person of good moral character for 10 years; (3) Has not been convicted at any time of an offense under INA §§212(a), 237(a)(2) or 237(a)(3)- these are crimes involving moral turpitude or generally crimes carrying imprisonment of 1 year or more; (4) Must establish that removal would result in exceptional and extremely unusual hardship to spouse (USC or LPR), parent or child, and ; (5) Warrants a favorable exercise of discretion. Application must be made at removal hearing using Form EOIR-42B. If cancellation of removal is granted, it is granted indefinitely (absent fraud or error) and returns the person back to LPR status previously held. 8 CFR §§212.3(d), 1212.3(d).
Limitation on Grant of Cancellation and Adjustment of Status
Only 4,000 non-LPR’s per fiscal year may have their removal cancelled or adjustment of status. Immigration Judges are instructed to reserve decisions once 3,500 cases have been granted.