Cancellation of Removal for non-Permanent Residents Checklist

Under certain circumstances, some people put into removal proceedings who are not Legal Permanent Residents (LPRs) may be eligible for a form of relief called “Cancellation of Removal”, which allows certain non-LPRs to “adjust status” and become an LPR.  In plain English, Cancellation of Removal allows some non-green card holders to ask the Immigration Judge to “cancel” their removal proceedings and allow them to stay in the U.S. as an LPR.  The statute that provides this relief is INA §240A(b)(1).  (There other types of Cancellation for LPRs and for battered spouses or children of LPRs or citizens – INA §240A(a) & (b)(2), respectively). The purpose of this post is to provide a checklist for eligibility for Cancellation of Removal for non-permanent residents.

Cancellation of Removal is discretionary; the Immigration Judge may cancel removal and grant LPR status to a person inadmissible or removable if:

  1. the person has been continuously present in the U.S. for the past 10 years.  Special rules for calculating the physical presence time are set out in INA §240A(d):
    1. the time period ends when the person is served a Notice to Appear;
    2. departures from the U.S. of less-than 90 days does not break the physical presence time, unless the sum of all trips is more than 180 days; and
    3. continuity is not required for a person absent from the U.S. because of service in the U.S. armed forces if the person enlisted in the U.S..
  2. the person has had “good moral character” during the 10-year period;
    1. “Good moral character” is defined by statute in INA§101(f) (see also the Immigration Court Benchbook). Essentially, the statute says you don’t have “good moral character” if you are:
      1. a habitual drunkard (or an addict);
      2. a prostitute (or pimp) or drug trafficker;
      3. a person who makes most of their income from illegal gambling;
      4. a person who has given false testimony to get an immigration benefit;
      5. convicted of an aggravated felony;
      6. a terrorist or torturor, or someone who has belonged to an organization condoning those acts;
      7. a person who has made a false claim to citizenship or voted illegally.
    2. If you are not on this list, the statute says that the Immigration Judge may still find that you did not have “good moral character” for other reasons.
    3. I will post an analysis of “good moral character” soon.
  3. the person has not been convicted of certain crimes:
    1. an offense under section 212(a)(2) [crimes of moral turpitude, controlled substance offenses, prostitution],
    2.  237(a)(2) [crimes of moral turpitude],
    3. or 237(a)(3) [falsifying documents or failing to register],
    4. There is no time limit to this conviction bar to cancellation, but there may be a waiver of this subsection for victims of domestic violence – see 237(a)(7); and
  4. the person can show that removal would result in “exceptional and extremely unusual hardship” to his or her U.S. citizen or LPR spouse, parent, or child.
    1. This may be the hardest criterion for most people to meet. “Exceptional and extremely unusual hardship” is defined as hardship that is substantially beyond that which would ordinarily be expected to result from your own deportation.
    2. Usually people will be able to show this hardship by a US citizen or LPR child or spouse having a serious medical condition that would be worsened by the person’s removal. However, “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Matter of Recinas, 23 I&N Dec. 467, 470 (2002).
    3.  I will post an analysis of “exceptional and extremely unusual hardship” soon.

The good folks at the Florence Immigrant and Refugee Rights Project have created a checklist for the documents helpful in a cancellation case and is available here.  If you are in removal proceedings and wish to seek Cancellation of Removal, feel free to contact me at (202) 630-0544 or here.  Enlisting the help of a good immigration lawyer is highly recommended; this is not something a person should do on his own.