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Navigating Cancellation of Removal for Permanent Residents: A Comprehensive Guide

Aug 17, 2023 | EOIR, Immigration Court

Introduction

In the complex landscape of immigration law, cancellation of removal is a crucial mechanism that offers a lifeline to permanent residents facing deportation.

This provision allows certain individuals to retain their lawful permanent resident status and remain in the United States.

In this blog post, I’ll delve into the intricacies of cancellation of removal for permanent residents, understanding its eligibility criteria, application process, and the significance it holds for those seeking to stay in the country.

Understanding cancellation of removal

Cancellation of removal is a form of relief available to both lawful permanent residents (LPRs) and certain non-permanent residents who are facing removal proceedings.

Issuance of a Notice to Appear by the Department of Homeland Security commences removal proceedings.

Cancellation of removal provides eligible individuals with an opportunity to avoid deportation and retain their LPR status in the United States.

In the case of non-permanent residents, it offers a pathway to obtain lawful permanent resident status.

Eligibility criteria for cancellation of removal for permanent residents

For LPRs, the eligibility criteria for cancellation of removal are as follows.

Length of permanent residence

The applicant must have been a green card holder for at least five (5) years prior to the issuance of the Notice to Appear.

Length of continuous residence

The applicant must have continuously resided in the United States for a minimum of seven (7) years after being admitted in any status.

However, “continuous residence” is terminated with the issuance of a Notice to Appear, or when the LPR commits certain criminal offenses, whichever comes first.

If the LPR’s “continuous residence” is ended before accrual of the seven years , they will be unable to meet this requirement.

No aggravated felonies

The applicant must not have been convicted of an aggravated felony. Such convictions can make an LPR ineligible for cancellation of removal.

Application process

Applying for cancellation of removal for permanent residents involves a detailed legal process with several steps.

Receipt of “Notice to Appear”

Once an LPR receives a “Notice to Appear” commencing removal proceedings, they need to pay the filing fee for and file Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) with the immigration court where the case is being heard.

Cancellation of removal is a “defensive” application, meaning an applicant can only file the application in removal proceedings, as part of their defense from removal.

Unlike other applications that can be filed directly with U.S. Citizenship and Immigration Services, an application for cancellation of removal can only be filed in immigration court.

Gathering supporting documents

The applicant must then compile evidence that addresses each eligibility criterion.  The stronger the evidence, the stronger the case.

The documentary evidence may include documents demonstrating:

  • continuous presence
  • green card status duration
  • evidence showing that the applicant has not been convicted of an aggravated felony
  • positive equities acquired in the United States, including employment and tax history
  • existence of – or lack of – any other criminal history

Because each case is unique, it is important not to compare one case against another.

Each applicant’s equities will generally be different, including family ties, employment history, tax payment history, and criminal history.

Immigration judges will consider all positive AND negative equities in deciding the final outcome.

Therefore, it is important for the applicant to present a strong case for the best chance of success.

Legal representation

Given the complexity of immigration law, it is strongly recommended to seek legal counsel to navigate the application process effectively.

An experienced immigration attorney can help gather appropriate documentation, build a strong case, and ensure compliance with all legal requirements.

Attending immigration court hearings

If the applicant is deemed statutorily eligible for cancellation of removal for permanent residents, the applicant will attend immigration court proceedings where they can present their case and provide testimony.

The government lawyer may also cross examine the applicant and any witnesses.

The court hearing may last several hours or even several days, depending on the complexity of the case.

An immigration judge will ultimately decide whether the applicant deserves to be granted cancellation of removal.

Significance of winning cancellation of removal

Cancellation of removal for permanent residents can be life-changing for LPRs facing deportation.

It allows them to preserve their ties to the United States, maintain family unity, and continue contributing to their communities.

Additionally, a grant of cancellation of removal for permanent residents preserves the date the applicant originally became an LPR, and if otherwise eligible to apply for citizenship, they can file an application for naturalization after a judge issues an order granting cancellation of removal.

Conclusion

Cancellation of removal for permanent residents is a vital aspect of immigration law that offers a chance for LPRs to retain their legal status and remain in the United States.

While the eligibility criteria are stringent, navigating this process with the assistance of an immigration attorney can significantly improve the chances of success.

By understanding the intricacies of cancellation of removal, individuals can work towards securing their place in the country they call home.

Click here to read about the process for non-permanent resident cancellation of removal.

Ruchi Thaker