Cancellation Of Removal

Cancellation of removal is a form of relief from deportation.  You will need to follow proper immigration procedures, including appearing before the court with your immigration attorney and presenting evidence in support of your application. You and your witnesses will need to testify in court and convince the immigration judge of the reasons to keep you in the United States.

There are two forms of cancellation of removal which are as follows:

Cancellation of removal for non-permanent residents (non-LPR cancellation)

To qualify for this form cancellation of removal, you must establish the following:

• Ten Years in the U.S. – You have been continuously physically present in the United States for at least ten years. The 10-year period is measured from the date of entry until the date that the Department of Homeland Security issues a Notice to Appear in Immigration Court. A single absence of 90 days or a several absences totaling 180 days will interrupt the continuous physical present necessary for cancellation of removal;
• Good Moral Character – You have been a person of good moral character during that 10-year period of time;
• No convictions that make you inadmissible or deportable – You haven’t been convicted of certain criminal offenses that would render you inadmissible or deportable; and
• “Exceptional and extremely unusual hardship” – Your potential deportation would cause “exceptional and extremely unusual hardship” to your lawful permanent resident or U.S. citizen spouse, child or parent. This standard is very difficult to meet and requires your child, spouse or parent to suffer a hardship, which would be substantially worse than the hardship normally expected from deportation to an underdeveloped country. Mere economic hardship is not sufficient.

Can you qualify for Cancellation if you have a criminal history?

The following categories of people are ineligible to apply for Cancellation:

• Habitual drunkards
• Polygamists
• Prostitutes
• Smugglers (including sending money for family members to “cross-over” into the United States)
• People convicted of crimes involving moral turpitude
• People convicted of drug crimes (except for a single offense of simple possession of 30 grams or less of marijuana) o People who derive their income from illegal gambling o People who have given false testimony to obtain any immigration benefit
• People who have been in prison for 180 days or more
• People convicted of an aggravated felony
• People who falsely claim United States citizenship or register to vote

Cancellation of removal for permanent residents (LPR cancellation)

Cancellation of removal for permanent residents is available only to individuals lawfully admitted for permanent residence. Cancellation of removal of a permanent resident or LPR cancellation, should not be confused with cancellation of removal of a non–permanent resident; the latter is not a criminal-alien waiver, but an application through which an undocumented individual, if successful, adjusts to green card status based on 10 or more years of continuous physical presence in the United States.

To qualify for this form cancellation of removal, you must establish the following:

• You have been an alien lawfully admitted for permanent residence for not less than 5 years,
• You have resided in the United States continuously for 7 years after having been admitted in any status, and
• You have not been convicted of any aggravated felony.

If you meet the above eligibility requirements, your immigration lawyer will present evidence showing your case is deserving of favorable discretion. The Immigration Judge weighs a number of factors to determine if he or she should permit you to remain in the United States.

These factors include:

• Whether you have family in the United States;
• The length of time you have lived in the country;
• If your deportation will cause a hardship to you and your family;
• Whether you have honorably served in the Arm Forces;
• Whether you have a history of stable employment in the United States;
• Whether you own property, or have your own business;
• Whether there is value to the community to keep you here;
• Proof that you have been genuinely rehabilitated if you have been convicted of a crime; and
• Any available evidence of your good character

The Immigration Judge then looks at the negative factors which include:

• The nature and underlying circumstances relating to the reason why you are being charged with deportation;
• Additional significant violations of the Immigration Laws;
• Evidence of a criminal record; and
• Any evidence of your bad character or undesirability to stay in the United States.

special rule cancellation of removal for battered spouses (VAWA cancellation)

In order to apply for special rule cancellation of removal for battered spouses, the immigrant applicant must be in removal proceedings before an immigration judge.

What are the requirements?

1. Person has been battered or subjected to extreme cruelty by a spouse or parent who is or was a USC or LPR (or is the parent of a child of a USC or LPR and the child has been battered or subject to extreme cruelty by the USC or LPR);
2. Person has been physically present in the U.S. for a continuous period of not less than 3 years immediately preceding the date of the application;
3. Person is of good moral character during the 3 years;
4. Person is not inadmissible under §§212(a)(2) or (3), is not deportable under §§237(a)(1)(G), (2), (3), or (4), and has not been convicted of an aggravated felony; and
5. Removal would result in extreme hardship to the person, the person’s child or the person’s parents.

Who is eligible for VAWA cancellation of removal?

The following immigrants qualify for VAWA cancellation of removal:

• A person who is an abused spouse, former spouse, or intended spouse of a U.S. citizen or lawful permanent resident;
• A person who is or was an abused child of a U.S. citizen or lawful permanent resident; and
• A person who is the non-abusive parent of a child who is or was subjected to domestic violence or extreme cruelty by a U.S. citizen or lawful permanent resident parent. The parent herself need not be abused.

The following are examples of battered immigrants who do not qualify to file a VAWA self-petition but might qualify for VAWA cancellation of removal:

• The parent of an abused child, regardless of the child’s U.S. citizenship, who was never married to the child’s abusive U.S. citizen or permanent resident parent;
• The abused spouse of a U.S. citizen or permanent resident spouse who has died or any abused children of a U.S. Citizen or permanent resident parent who has died over 2 years ago;
• An abused spouse who was divorced for over 2 years from the U.S. citizen or permanent resident abuser spouse;
• An abused stepchild whose immigrant parent has been divorced from the abusive parent for over 2 years.

An Austin immigration lawyer – Abogados de Inmigracion en Austin TX – can help you determine if you meet the continuance residence requirement for naturalization. Learn more by contacting Michael G. Murray, P.A today!