Cancellation of Removal
Have you been living in the United States for a long time, and are you in removal proceedings? Even if you are undocumented, there may be a way for you to avoid deportation and get a Green Card through a process called Cancellation of Removal.
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For many people living in the United States of America without legal immigration status — and for some lawful permanent residents (Green Card holders), removal from the country, or deportation is a not just a possibility — it is a reality. But the good news is, if you are now in removal proceedings, you won’t necessarily be kicked out of the country. This is because there is a special kind of defense called cancellation of removal that may allow you to stay here — but only in certain circumstances. Here’s everything you need to know about this type of relief.
To begin with, we’ll discuss “non-LPR Cancellation of Removal.” This type of defense not only shields the recipients from deportation, it also allows them to apply for lawful permanent residency (a Green Card). However, it is only available to people from other countries who have been living in the United States without any type of legal immigration status that meet certain criteria.
To be eligible for non-LPR Cancellation of Removal, you must be in the removal process and be able to prove that:
- You have lived here (or been “continuously physically present) for 10 years or more years.
- Being forced to leave the United States would create extraordinary difficulties for your qualifying family member(s) who is/are U.S. citizens or lawful permanent residents.
- You are an honest, upstanding person who doesn’t have any bad and potentially dangerous habits, such as excessive gambling, using drugs or drinking too much.
- You have not been convicted on certain criminal charges or broken certain laws.
Yes, you must prove it. That is, you must provide evidence to support your claims that you meet all of the requirements. Here’s how you do so.
To prove that you have lived here for at least 10 years immediately prior to the day on which you applied for cancellation of removal, you must first understand how your time here is calculated for the purposes of this application. Basically, it’s measured on an imaginary “clock” that started on the day you got here and can be “stopped” for various reasons. For example, the clock stopped when you received your Notice to Appear in immigration court. The commission of certain crimes and frequent or lengthy travel outside of the United States also stops the imaginary clock.
Now that you know how continuous physical presence in the United States is measured, it should be fairly easy to prove that you’ve been here for the specified period. In addition to testifying about it yourself, you can have friends, family or co-workers testify about your length of residence in court. If you have them, you should also provide relevant documents, such as copies of your current and past lease, bank statements, pay stubs and so forth.
Next, you must prove that you have a family member who meets the definition of a qualifying relative. Under federal immigration law, this must be your spouse, child or parent who is also a U.S. citizen or lawful permanent resident. Acceptable evidence could be a marriage certificate, birth certificate or any other document showing the nature of the relationship, along with documents confirming the person’s citizenship or lawful permanent residency.
You must also prove that your removal (deportation) from the United States would create immense hardship for that person. Simply saying your absence would create financial difficulties or emotional difficulties for the person left behind will not be sufficient. On the other hand, an acceptable argument may be one in which you can demonstrate that your qualifying relative is critically or chronically ill, and you are their primary caregiver.
Proving that you are a fine, upstanding person with few dangerous or bad habits may be as simple as providing letters about your character from anyone in the community who knows you well. These may be from your employer, a religious leader or the director of a group in which you are a volunteer.
However, there are plenty of reasons why a judge may question your good moral character, so if you are at all concerned about any negative incidents in your past, be sure to let an attorney know.
In addition to proving that you are eligible for cancellation of removal and a green card, you must also be able to convince the immigration judge that you deserve a second chance, and are worthy of remaining in the United States. This extremely important because he or she has the ultimate power to grant or deny your request, and there are a limited number of non-LPR cancellation application approvals based on Green Card availability each year.
But what if you already have a Green Card. Does that mean you can’t be subjected to removal proceedings and/or deportation? The answer to this question is, “no.” Even if you’ve had a Green Card for years, you can be referred for removal in certain circumstances.
If this has happened to you, you may be able to file an application (on form EOIR 42A) requesting cancellation of removal for lawful permanent residents (LPRs), which will allow you to keep your Green Card and remain in the country. However, you must have be in removal proceedings in immigration court and qualify to do so. Specifically, you must prove that:
- You have had a Green Card for no less than five years when your application for cancellation of removal is filed.
- You have continually lived here for at least seven years after entering the United States with any recognized immigration status, before the imaginary time “clock” is stopped for any reason.
- You have not been found guilty of an aggravated felony as defined for the purposes of U.S. immigration law.
- There are no prior occasions on which you were allowed to remain in the country based on a successful application for cancelation of removal, or a specific waiver of deportation for certain crimes.
- The immigration judge should approve your request using their discretion, and let you keep your Green Card.
Proving that you’ve had a Green Card for at least five years sounds easy — and it should be. As long as you acquired it legally, all you have to do is provide it to the court, However, illegal acquisition of a Green Card through fraud automatically renders you ineligible for cancellation of removal.
To demonstrate that you meet the second requirement, seven years of continuous residence in the U.S. before you received official notice regarding removal/deportation (or did anything else to stop the “imaginary clock” we discussed above), you can normally provide documents reflecting your immigration status when you officially entered the United States. But because the language in this requirement is subject to legal interpretation, you should also check with a qualified immigration attorney to see what other types of evidence may be necessary.
Next, you must prove (by providing background checks, and relevant police and court records, if any) that you have never pleaded guilty to or been found guilty of any crime defined as an aggravated felony under U.S. immigration laws. These generally include, but are not limited to: murder, rape, the transportation and distribution of illegal drugs, theft, burglary, or any other violent crimes for which you have been sentenced to at least one year in prison (regardless of how long you were actually incarcerated). These also include conviction for fraud with financial losses totaling more than $10,000, and conviction for the attempt or conspiracy to commit such crimes. This is important because any such conviction makes you ineligible for cancellation of removal.
If a past application for cancellation of removal or waiver of deportation for certain criminal grounds was approved, you cannot apply again. It does not matter if you received relief as someone without legal immigration status (a non-LPR), or as a lawful permanent resident. This means that if you have applied for any type of relief in the past, you must be able to provide paperwork and/or any other evidence that the immigration court denied your request.
Finally, you must be able to convince the immigration judge that — along with meeting the legal requirements for cancellation of removal — you deserve to stay in the United States and keep your Green Card.
Because the judge will make his or her decision based on his or her assessment of the positive and negative aspects of your case, and your character, be sure to provide plenty of information about any family you have in the United States and the effect of your deportation on them. You will also want to provide evidence of your positive involvement in the community, your work history and so forth. If possible, get friends and to testify about your character during this portion of the hearing.
In summary, if you have a green card or lack immigration status and are facing deportation from the United States, you may qualify for protection through cancellation of removal. Because there are strict requirements for eligibility, however, it is important that you get a detailed assessment of your case from a top immigration attorney. Don’t leave anything to chance when your future in the United States is at stake.
Your Attorney Compiles your Case, you Sign, and your Attorney Submits. Your attorney prepares all necessary USCIS forms and any supporting materials in their power. If there is supporting documentation that only you as the client have access to (ex: former employer letters), they will tell you exactly what you need to do and provide you with samples, so you can get the correct documentation. Once everything is ready, your attorney will compile your case into a professional legal petition, with a cover letter and a table of contents that will please USCIS and/or the other immigration authorities. They will check everything again, and send it to you to print and sign, via our secure online system. You will print and sign your completed case, and mail it to us in the envelope we provide. Your attorney will verify that you signed in the correct places, and they will send it off to the correct USCIS Dropbox, processing center, or other authority. It is possible that USCIS or other immigration authorities may request additional documentation/clarification regarding your petition. Your attorney will handle any such requests, communicating with you as required. Please visit our How our Legal Services Work page.*
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