Being placed into removal proceedings can be a source of fear for many immigrants, regardless of status. An immigration judge may order you to return to your home country if you lose your case. The stakes are high, but you may have another course of action if you receive a deportation order.
“What is a Cancellation of Removal?”
A cancellation of removal is a limited form of relief from a deportation order. It may be requested during removal proceedings by certain non-permanent and permanent residents of the U.S. if they meet requirements. If a cancellation of removal is awarded, the individual gains or preserves their permanent residency in the U.S.
“Who is Eligible for a Cancellation of Removal?”
A cancellation of removal may be requested by both lawful permanent residents and undocumented immigrants who are in a removal proceeding. For permanent residents to request a cancellation of removal, they must file Form EOIR-42A and prove:
- They have been a lawful permanent resident of the U.S. for a minimum of 5 years
- They have maintained continuous residence in the U.S. for 7 years between being legally admitted to the country and receiving a notice to appear at the removal proceeding
- They have not been convicted of an aggravated felony
For non-permanent residents to request a cancellation of removal, they must also file Form EOIR-42A and establish:
- They have been physically present in the U.S. for 10 years prior to receiving the notice to appear for a removal hearing
- They have been a person of good moral character for those 10 years
- They have not been convicted of a criminal offense under I.N.A. § 212(a)(2), I.N.A. § 237(a)(2), or I.N.A. § 237(a)(3)
- They have a spouse, parent, or child which is a lawful permanent resident or U.S. citizen who would suffer extremely unusual hardship if the individual under removal was deported.
Factors that Affect Cancellation of Removal Requests
An immigration judge will decide to grant or deny the cancellation of removal. To make the decision, the judge will take many factors into account, including the eligibility of the individual. It is possible to be denied, even if you are eligible. These other factors include:
- Length of continuous residence in the U.S.
- Family and community ties
- Participation in clubs, religious organizations, community service, etc.
- Family members’ cultural familiarity, job opportunities, medical and psychological needs, and language ability in the country they would follow the removed person to Service in the U.S. military
- Filing and payment of taxes
- Work history
- Acceptance of responsibility of crimes
- Proof of rehabilitation after convictions involving drugs or alcohol
The judge will often consider the family of the individual in question, and how they would suffer if they were separated from the individual or if they were to accompany the individual to their home country. The judge will evaluate if there are necessary resources for the family members to find work, education, and other needed services.
There is a large amount of preparation and research that goes in to the decision of a cancellation of removal. It is important to have the support and counsel of an experienced immigration attorney to help you fight for cancellation.
Removal proceedings are serious, and a cancellation of removal may be your chance to remain in the United States. Having knowledgeable, experienced representation can protect you, and help you understand the complex legal matters of removal. Please call us at (708) 366-9900 for a free consultation.