Being placed in removal proceedings does not always mean deportation is inevitable. Depending on a person's immigration history, family relationships, length of residence in the United States, and other circumstances, there may be forms of relief that can allow the individual to remain in the country.
One possible form of relief is cancellation of removal. At Pachuta & Kammerman, we represent individuals and families facing immigration proceedings in Colorado, Virginia, Washington, D.C., Maryland, and beyond. Cancellation of removal can provide significant protection, but the eligibility requirements are strict and approval is not automatic.
What Is Cancellation of Removal?
Cancellation of removal is a form of discretionary immigration relief that may be available to certain people who are already in removal proceedings.
If granted, it can prevent removal from the United States. The consequences depend partly on whether the applicant is a lawful permanent resident or a nonpermanent resident.
There are different eligibility requirements for these two groups.
Cancellation of removal should not be confused with asylum, adjustment of status, or simply applying for a green card through a family member. Each form of immigration relief has its own requirements.
Our immigration lawyers can evaluate the circumstances surrounding removal proceedings and determine which forms of relief may be available.
Who Can Apply for Cancellation of Removal?
Cancellation of removal is generally divided into two major categories:
- Cancellation for certain lawful permanent residents
- Cancellation for certain nonpermanent residents
The legal standards differ substantially.
A person should not assume they qualify merely because they have lived in the United States for many years or have close relatives who are U.S. citizens.
The applicant generally must establish each required element for the applicable form of relief.
What Are the Requirements for Lawful Permanent Residents?
A lawful permanent resident, commonly called a green card holder, may potentially seek cancellation of removal if specific statutory requirements are met.
Generally, the person must establish that they:
- Have been a lawful permanent resident for at least five years
- Have resided continuously in the United States for at least seven years after admission in any status
- Have not been convicted of an aggravated felony
These requirements can become complicated.
For example, certain events can affect how continuous residence is calculated. Criminal convictions can also create difficult questions about eligibility.
A green card holder facing removal should therefore avoid assuming that permanent resident status alone will protect them from deportation.
Can a Green Card Holder Really Be Deported?
Yes.
Lawful permanent residence provides substantial immigration benefits, but it does not make someone immune from removal proceedings.
Certain criminal convictions, immigration violations, and other circumstances can potentially place a permanent resident at risk.
Cancellation of removal may provide a defense for some permanent residents, but only if the eligibility requirements are satisfied and the immigration judge ultimately exercises discretion favorably.
This makes early legal analysis important, particularly when a criminal conviction is involved.
What Are the Requirements for Nonpermanent Residents?
The requirements for nonpermanent resident cancellation of removal are different and generally demanding.
An applicant typically must establish several elements, including:
- Continuous physical presence in the United States for at least 10 years
- Good moral character during the required period
- No disqualifying convictions under specified immigration laws
- That removal would cause exceptional and extremely unusual hardship to a qualifying relative
The qualifying relative generally must be the applicant's U.S. citizen or lawful permanent resident spouse, parent, or child.
Merely having a U.S. citizen relative does not automatically establish eligibility.
What Does “Exceptional and Extremely Unusual Hardship” Mean?
This is one of the most challenging parts of many nonpermanent resident cancellation cases.
The legal standard requires more than the ordinary hardship that often accompanies a family member's removal.
An immigration judge may consider the circumstances affecting qualifying relatives and evaluate the evidence as a whole.
Relevant issues could include:
- Serious medical conditions
- Disabilities
- Educational needs
- Access to necessary medical treatment
- A child's particular circumstances
- Financial dependence
- Conditions in the country of removal
- The qualifying relative's ability to relocate
- Significant family responsibilities
No single factor automatically guarantees that the hardship requirement is met.
The strength of the documentation can be extremely important.
Does Having U.S. Citizen Children Make You Eligible?
Not by itself.
This is a common misunderstanding.
A parent may have lived in the United States for many years and have children who were born here, but those facts alone do not guarantee cancellation of removal.
The applicant must satisfy all applicable requirements, including the demanding hardship standard.
The hardship analysis focuses on qualifying relatives rather than simply on the hardship the applicant personally would experience after removal.
For example, evidence concerning a U.S. citizen child's medical condition or specialized educational needs may be relevant to the analysis.
Each family's circumstances must be evaluated individually.
How Do You Prove Continuous Physical Presence?
For nonpermanent resident cancellation, establishing the required period of continuous physical presence can require substantial documentation.
Evidence may include:
- Tax records
- Employment records
- School records
- Medical records
- Leases
- Utility bills
- Bank records
- Insurance documents
- Birth records of children
- Government correspondence
- Other dated documents
Applicants may need records covering many years.
Gaps in documentation should be identified early so the legal team can determine whether other evidence is available.
Certain departures from the United States and other events can also affect eligibility, making a detailed immigration history essential.
What Is the Stop-Time Rule?
The stop-time rule is an important issue in cancellation of removal cases.
Under federal immigration law, certain events can stop the accumulation of the continuous residence or physical presence required for cancellation of removal.
A qualifying criminal offense can be particularly important in this analysis. The rules surrounding charging documents, offenses, dates, and continuous presence have also been the subject of significant immigration litigation.
Because the consequences can turn on precise facts and legal classifications, applicants should not attempt to calculate eligibility based solely on the date they entered the United States.
An immigration attorney can review the full timeline.
Can a Criminal Record Prevent Cancellation of Removal?
Yes, certain criminal convictions can prevent a person from qualifying.
The consequences depend on the type of cancellation sought, the offense, the statute of conviction, and other details.
For lawful permanent residents, an aggravated felony conviction can bar cancellation of removal.
For nonpermanent residents, specified criminal grounds can also create eligibility problems.
Immigration law does not always classify offenses in the same way that state criminal law does. A conviction that sounds relatively minor may have serious immigration consequences, while the precise statutory language may matter more than the label attached to the offense.
Never assume a conviction is harmless for immigration purposes without having it reviewed.
What Does Good Moral Character Mean?
Nonpermanent resident applicants generally must establish good moral character during the required statutory period.
Immigration law identifies certain circumstances that can prevent a finding of good moral character. An immigration judge may also evaluate broader conduct where legally appropriate.
Applicants should be truthful with their attorneys about their histories.
Potential issues may involve:
- Criminal records
- Tax problems
- Prior immigration violations
- False statements
- Prior marriages
- Child support obligations
- Other conduct relevant under immigration law
Trying to hide unfavorable information can create additional problems.
An attorney needs the complete history to evaluate risks and determine how the case should be presented.
Is Cancellation of Removal Automatically Granted if You Qualify?
No.
Cancellation of removal is discretionary.
Meeting the threshold statutory requirements does not necessarily mean an immigration judge must grant the application.
The judge may weigh favorable and unfavorable factors when deciding whether relief should be granted.
Positive factors can vary by case and may include family ties, lengthy residence, employment history, community involvement, rehabilitation, and other evidence.
Negative factors may include criminal conduct, repeated immigration violations, or other adverse circumstances.
Presenting a strong case therefore involves more than completing an application form.
Is There a Limit on Nonpermanent Resident Cancellation Cases?
Yes. Federal law places an annual numerical limit on grants of cancellation of removal and certain related relief for nonpermanent residents.
This makes cancellation different from a benefit that automatically becomes available whenever someone satisfies the basic criteria.
Immigration court procedures and the timing of relief can be complicated, particularly given the broader realities of the immigration court system.
Applicants should work with counsel to understand how these issues may affect their individual proceedings.
What Evidence Can Strengthen a Cancellation Case?
A strong application generally needs documentation supporting every required element.
Depending on the case, evidence might include:
- Immigration records
- Proof of residence
- Medical documentation
- School records
- Psychological evaluations
- Financial records
- Tax returns
- Employment history
- Evidence of family relationships
- Evidence of community involvement
- Criminal court records
- Letters and declarations
- Country condition evidence
The most useful evidence depends on what must be proven.
A large stack of documents is not necessarily persuasive if those documents do not address the legal requirements.
What Happens if Cancellation of Removal Is Granted?
For a qualifying lawful permanent resident, cancellation can allow the person to retain permanent resident status rather than being removed.
For a qualifying nonpermanent resident, a grant of cancellation of removal can result in adjustment to lawful permanent resident status.
These are significant outcomes.
Because the relief can fundamentally change a person's immigration future, applications are carefully scrutinized and should be prepared with the legal requirements in mind.
Why Should You Speak With an Immigration Lawyer?
Cancellation of removal cases combine strict statutory requirements, immigration history, family circumstances, evidence, and judicial discretion.
Small details can have major consequences.
A criminal conviction, departure from the country, date of entry, prior immigration filing, or family relationship may change the analysis.
An attorney can also evaluate whether cancellation is actually the strongest defense available or whether another form of relief should be considered.
People facing removal proceedings should avoid assuming that one potential option is their only option before their entire immigration history has been reviewed.
Talk With Pachuta & Kammerman About Cancellation of Removal
Cancellation of removal can provide a path to remain in the United States for certain lawful permanent residents and nonpermanent residents who meet the applicable requirements. Eligibility can depend on years of residence, criminal history, family relationships, hardship, and other highly specific facts.
If you are dealing with removal proceedings and want to know whether cancellation of removal or another immigration defense may be available, our attorneys are here to help. Call Pachuta & Kammerman today or connect with us online to schedule a consultation.
