Immigration Blog

Learn more about immigration law through these articles

Cancellation of Removal for Non-Permanent Residents: Understanding the Process and Requirements to Maximize Success in Immigration Court

Jul 14, 2023 | immigration, Immigration Court, Niz-Chavez, removal

Introduction

Dealing with immigration issues can be a complex and challenging process, especially for non-permanent residents who find themselves facing the possibility of deportation.

However, under certain circumstances, non-permanent residents may be eligible for a form of relief known as “cancellation of removal.”

In this article, I will delve into the topic of cancellation of removal for non-permanent residents, exploring the process and requirements involved.

Understanding cancellation of removal for non-permanent residents

Cancellation of removal is available to both lawful permanent residents (LPRs) and non-LPRs, but for the purpose of this article, I will focus on cancellation of removal for non-LPRs.

Cancellation of removal for non-permanent residents is a legal remedy available to certain noncitizens who are in removal proceedings in immigration court.

If successful, it grants them relief from deportation and allows them to become permanent residents and get a green card, and eventually, citizenship.

Eligibility criteria for cancellation of removal for non-permanent residents

Non-permanent residents must meet specific criteria set forth by the statute to qualify for cancellation of removal. The requirements include:

Continuous residence

The non-permanent resident must have resided continuously in the United States for a period of at least ten (10) years before the initiation of removal proceedings.

This period is measured from the date of entry into the United States in ANY status (including without inspection).

But, the continuous resident is “cut off” when the non-citizen commits a disqualifying offense (doesn’t even have to be convicted), or when they are issued a “Notice to Appear” (NTA) commencing removal proceedings, whichever comes first.

However, recent developments in Supreme Court case law has further complicated the issue of what constitutes a proper NTA that cuts off the continuous residence.

While the Supreme Court seems to have (twice, in the cases of Pereira v. Sessions and Niz-Chavez v. Garland) indicated that an NTA that lacks the date and time of the initial hearing does not cut off the continuous residence, the Board of Immigration Appeals and immigration judges throughout the country continue to interpret the Supreme Court’s decisions inconsistently, causing varying results for applicants, where some are found eligible for cancellation, and others are not, depending on who is reviewing the applicant’s case.

Good moral character

An applicant for non-LPR cancellation of removal  must also demonstrate “good moral character” during the required ten-year period.

“Good moral character” is a legal standard and certain activities or convictions during the statutory period may bar the applicant from demonstrating “good moral character” in the legal sense.

Factors that can affect an individual’s moral character assessment include criminal history, fraud, and other negative behaviors during the 10-year statutory period.

No disqualifying criminal convictions

The applicant must not have certain criminal convictions rendering them inadmissible or deportable.  This is an individualized assessment that should be discussed with an immigration attorney to see whether a conviction may disqualify the applicant from seeking non-LPR cancellation of removal.

Hardship to a “qualifying” relative

Finally, the applicant must prove that their removal would result in “exceptional and extremely unusual” hardship to their spouse, parent, or child (unmarried child under the age of 21) who is a U.S. citizen or lawful permanent resident.  Hardships to other relatives will not be considered.

This hardship must be beyond the normal hardships that would typically be expected if the individual were to be deported (i.e. separation from family).

Medical problems, educational hardships for children, and mental health issues, should all be explored in detail for each qualifying relative.

Because each case is unique and each applicant’s qualifying relatives’ hardships will be unique, it is important to discuss these issues openly and honestly with an immigration lawyer, who can help you further strengthen your case.

It is important to keep in mind that if the qualifying child turns 21 years old prior to a grant of cancellation of removal by an immigration judge, that relative is no longer considered a “qualifying” relative, since once the child turns 21 years old, he or she is no longer a “child” for purposes of cancellation of removal.  So depending on the age(s) of children who may be qualifying relatives, it is important to keep the case moving along without delays.

The application process

Pay a filing fee and file an application with the immigration court

Unlike other benefits applications (like adjustment of status, asylum, or naturalization), an application for cancellation of removal cannot be filed directly with USCIS.

To apply for cancellation of removal, a non-permanent resident must pay the filing fee for and submit Form EOIR-42B, Application for Cancellation of Removal for Certain Permanent Residents, to the immigration court handling their removal case.

Attend a hearing on the merits of the application

During the court proceedings, the applicant will need to present evidence supporting their eligibility for cancellation of removal, such as documents proving continuous residence, employment history, tax records, community involvement, and testimonials to establish their good moral character.

If there is any criminal history, the judge will also ask to see the final dispositions of any arrests to see whether they disqualify the applicant.

Additionally, it is essential for the applicant to gather evidence demonstrating the “exceptional and extremely unusual” hardship that would befall their qualifying relative(s) if the applicant was deported.

This is probably the most important part of the case, as the applicant will have to rely on a judge to decide whether the hardships to qualifying relative(s) meet the “exceptional and extremely unusual” hardship standard.

Further complicating the process is the fact that there is an annual quota on how many non-permanent resident visas can be issued.

If a judge wants to grant a non-LPR cancellation case, he or she must first request a visa and then wait behind other judges who requested the same.

Waiting for the visa can take several years.

This can be frustrating if you only have one qualifying relative, for example, a child, who turns 21 years old, or an elderly parent or a spouse who dies while waiting for the visa to become available.

The applicant must continue to be able to show the hardship to the qualifying relative(s) up until the time the judge grants the case when a visa number becomes available.  But the judge cannot officially grant/approve the case until the visa is available.

Conclusion

Cancellation of removal for non-permanent residents offers a potential lifeline for individuals facing deportation, who may otherwise not be eligible for any other relief.

By meeting the eligibility requirements and presenting a strong case to the immigration court, non-permanent residents may be able to overcome removal proceedings and become lawful permanent residents.

However, navigating the cancellation of removal process can be intricate, and seeking legal assistance from an experienced immigration attorney is highly advisable to ensure the best chance of success.

Remember, this article provides a general overview of cancellation of removal for non-permanent residents, and individual cases can vary significantly.  No two cancellation of removal cases are alike.

If you or someone you know is facing deportation and considering seeking cancellation of removal, consult with an immigration attorney for personalized guidance based on your specific circumstances.  The wrong information or advice can hurt!

Click here to read about the process for lawful permanent resident (LPR) cancellation of removal.

Ruchi Thaker