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Cancellation of Removal for certain Non legal permanent residents also known as Non LPR Cancellation of Removal.
What is Cancellation of Removal?
Cancellation of Removal is a benefit that is considered a form of relief from removal to Noncitizens who are present without status in the United States through the filing of the form 42B before the immigration judge or the Executive Office of Immigration Review also known as the EOIR.
Eligibility requirements.
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The noncitizen must be present in the United States for at least 10 years.
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Must not have traveled outside the United States within the ten-year period for a period of 90 days or more or traveled for a period of 180 days or more if the noncitizen travelled outside the United States more than once within the ten-year period.
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Failure to accumulate ten years before an immigration official issues what is known as a notice to appear or NTA which is the charging document accusing the noncitizen of being removable for a violation of immigration law will prevent the noncitizen from ever being able to prove the 10 year requirement regardless of how long the noncitizen has actually been present in the United States.
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An applicant is exempt from the continuous physical presence requirement if they served at least 24 months in the U.S. Armed Forces, were in the United States at the time of enlistment or induction and if separated from service, the separation was under honorable conditions.
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The noncitizen must not have committed certain crimes that can disqualify the noncitizen under immigration law which include:
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Crimes requiring a sentencing of five years or more for two or more convictions,
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Crimes involving moral turpitude,
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Crimes related to controlled substances,
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Engaging in prostitution or commercialized vice.
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Crimes considered Aggravated Felonies,
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Certain Firearms offenses,
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High-speed flight from an immigration checkpoint,
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A crime of child abuse, neglect, or abandonment,
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A crime of domestic violence or stalking,
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Violations of certain portions of a domestic violence protection order,
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Making a false claim to U.S. citizenship,
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Acts of Espionage, treason, sedition, Selective Service Act or Trading with the Enemy violation,
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Failure to register or document fraud under certain federal acts,
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Failure to register as a sex offender under federal law,
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Entry/departure permit fraud,
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Importation of immigrants for immoral purposes,
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Threats against the president,
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Military expeditions against friendly nations.
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The noncitizen has been a person of good moral character for ten years. Note although the judge can decide whether the positive or negative behavior of the noncitizen can lead to a discretionary finding of good moral character, the noncitizens will be automatically disqualified from a finding of good moral character based on the the following crimes regardless of whether there was a conviction:
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Sentencing of five years or more for two or more convictions,
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Admission or conviction of a crime involving moral turpitude,
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Admission or conviction of crimes related to controlled substances,
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Admission or conviction for engaging in prostitution or commercialized vice,
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Immigration authorities have a reason to believe noncitizen is a drug trafficker,
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Admission or conviction for alien smuggling,
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Being a habitual drunkard,
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Living off of or having two or more convictions for illegal gambling,
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False testimony to obtain or maintain immigration benefits,
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Coming to the United States to practice polygamy,
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Spending 180 days or more in jail or prison for a conviction or multiple convictions,
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Conviction for Murder,
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Conviction for an Aggravated Felony.
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The noncitizen must prove that the noncitizen has a parent, spouse or child who are either legal permanent residents or United States Citizens who will suffer exceptional and extremely unusual hardship if the noncitizen is removed from the United States.
Exceptional and Extremely Unusual Hardship.
There is no specific regulation defining the Exceptional and Extremely Unusual Hardship. The only guidance provided is from the Board of Immigration Appeals which has described the hardship as hardship that is substantially beyond the ordinary hardship that would be expected when a close family member leaves the country, limited to truly exceptional situations where the standard does not need to be so high that cancellation is granted only if one’s deportation would be unconscionable.
Factors that immigration courts look at to determine the required hardship include the qualifying family members:
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age;
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health;
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special needs in school;
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length of residence in the United States;
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family and community ties in the United States;
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family and community ties in the home country;
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circumstances in the home country, including standard of living, way of life, languages spoken, work opportunities; and
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alternative methods for immigrating the cancellation applicant.
Although an immigration judge must weigh all these factors together, ultimately, a decision will be based on the subjective interpretation of the immigration judge on whether the noncitizen’s qualifying family member or family members will suffer exceptional and extremely unusual hardship. The decision is therefore not fully based on the law since the judge has the freedom to find whether or not a citizen has met the hardship requirement as well as the good moral character requirement.
Work Authorization.
After the 42B Application is filed with the EOIR, the noncitizen will be eligible for an employment authorization document or EAD which the noncitizen can renew every year while the removal proceeding is pending.
Benefit Granted.
A grant of cancellation of removal will automatically result in the United States Citizenship and Immigration Service or USCIS issuing legal permanent resident status or a green card to the noncitizen after the immigration court notifies USCIS of the approval.
Denial.
If the application is denied, the noncitizen will be subject to being removed from the United States although the noncitizen also has the right to appeal the judge’s decision before the Board of Immigration Appeals.
Most often removal cases are cases where the noncitizen should seek the representation of an experienced immigration attorney to help the noncitizen wade through the potential pitfalls of the removal and cancellation of removal process.
