Cancellation of Removal
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Cancellation of Removal is a form of discretionary relief that is available to qualifying lawful permanent residents and qualifying non-permanent residents. It allows an individual’s immigration status to adjust from “deportable” to “lawfully admitted for permanent residence.” Since cancellation of removal is a discretionary benefit, an application for it is made during the course of a removal hearing before an immigration judge.
Criteria for Lawful Permanent Residents
For lawful permanent residents, cancellation of removal may be granted if the individual:
- Has been a lawful permanent resident for at least 5 years;
- Has continuously lived in the United States for at least 7 years after having been lawfully admitted; and
- Has not been convicted of an “aggravated felony.” The term “aggravated felony” is defined very broadly within immigration law and encompasses a number of offenses including trafficking of drugs or firearms, sexual abuse of a minor, murder, and rape.
Criteria for Non-Permanent Residents
A non-permanent resident may be granted cancellation of removal if the alien:
- Has maintained continues physical presence in the United States for at least 10 years;
- Has been a person of good moral character during those 10+ years. Claims of good moral character are reviewed on a case-by-case basis, however the immigration laws do specify that a person who has engaged in any of the following will be found to lack good moral character:
- Convicted of murder at any time
- Convicted of an aggravated felony on or after November 29, 1990
- Convicted for possession of a controlled substance – in the United States or another foreign country UNLESS it was a single offense for simple possession of 30 grams or less of marijuana;
- Convicted and sent to prison and sentence was 180 days or more
- Falsely testified to obtain benefits under the U.S. immigration laws
- Involved in prostitution
- Convicted of two or more gambling related offenses
- Has engaged in human smuggling
- Is a habitual drunkard
- Has not been convicted of an offense that would make him or her removable. Offenses that would make an alien removable include: aggravated felony convictions, kidnapping, and robbery; and
- Can demonstrate that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents. The “exceptional and extremely unusual hardship” sets a high standard that is decided on a case-by-case basis.
Criteria for Non-Permanent Residents Who Are Victims of Domestic Violence
A non-permanent resident who has suffered battery or been forced to endure extreme cruelty by a spouse or parent who is a U.S. citizen or permanent legal resident may also file an application for cancellation of removal if they are placed in removal proceedings. An applicant filing for this discretionary benefit must also show that:
- They have maintained continuous physical presence in the U.S. for at least 3 years;
- They have good moral character as described above;
- They are not inadmissible or deportable under the immigration laws for committing any offenses ranging from marriage fraud to aggravated felonies;
- Their removal would result in extreme hardship to them or their child who is the child of a U.S. citizen or lawful permanent resident; or the applicant is a child whose removal would result in extreme hardship to either themselves or their parent; and
- They deserve a favorable exercise of the immigration judge’s discretion in granting their application.