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Cancellation of Removal in Immigration Court


Removal/Deportation from the United States

Removal is the word United States immigration laws use for what is more commonly known as "deportation."

Any person who is not a United States citizen or national can be ordered removed from the United States.

There are many legal reasons why persons may be removed from the United States. These are referred to as "grounds of removability." One ground of removability provides that persons may be removed from the United States if they were excludable (inadmissible) when they entered the United States.

However, even if persons are removable, they may be able to remain in the United States if an immigration judge "cancels" their departure. This form of relief is called "cancellation of removal" and gives otherwise removable persons lawful permanent resident status. Generally, to qualify for cancellation of removal, a person must be eligible to file a waiver for the ground on which the government is seeking to remove him or her from the United States.

A person must be in removal proceedings to apply for cancellation of removal. Removal proceedings begin when Immigration and Customs Enforcement (ICE) issues a Notice to Appear ("NTA") to the person the government seeks to remove from the Unites States. The NTA states the removability ground(s) the government will rely on in the removal proceedings to try to prove the person should be removed from the United States.

Persons not in removal proceedings that want to apply for cancellation of removal may ask ICE to serve them with a Notice to Appear. They can then transfer their cases to immigration court and file the application for cancellation of removal.  Persons not in removal proceedings should consult with an immigration attorney before asking ICE that they be put in removal proceedings. Applying for cancellation of removal is VERY RISKY.

There are four types of cancellation of removal:

  • cancellation of removal for lawful permanent residents;
  • cancellation of removal for nonpermanent residents;
  • cancellation of removal under the Violence Against Women Act (VAWA) for battered immigrant family members; and
  • cancellation of removal for NACARA beneficiaries.

Cancellation of Removal for Lawful Permanent Residents

Cancellation of removal for lawful permanent residents gives lawful permanent residents that have committed certain crimes a second chance to stay in the United States.

If you are a lawful permanent resident must, to qualify for cancellation of removal, you must:

  • have been lawfully admitted for permanent residence for not less than five years;
  • have resided in the United States continuously for seven years after having been admitted in any status; and
  • not have been convicted of any aggravated felony. 

Fulfilling the list of above requirements only makes a person eligible to apply for cancellation of removal. Meeting the eligibility requirements does not mean that you will be allowed to stay in the United States.

Cancellation of removal is always discretionary. This means that the Immigration Judge must decide that you deserve cancellation of removal after finding that you meet the eligibility requirements.

Cancellation of Removal for Nonpermanent Residents

A nonpermanent resident who wins cancellation of removal will have his or her status adjusted to permanent residency.

If you are a nonpermanent resident, to qualify for cancellation of removal, you must show:

  • ten years of continuous physical presence in the United States immediately preceding the date of your application for cancellation of removal;
  • you have been a person of good moral character during this ten years;
  • you have not have been convicted of certain criminal offenses; and
  • your removal from the United States would result in "exceptional and extremely unusual hardship" to your spouse, parent, or child, who is a United States citizen or lawful permanent resident.

Fulfilling the list of above requirements only makes a person eligible to apply for cancellation of removal. Meeting the eligibility requirements does not mean that you will be allowed to stay in the United States.

Cancellation of removal is always discretionary. This means that the Immigration Judge must decide that you deserve cancellation of removal after finding that you meet the eligibility requirements.

Violence Against Women Act (VAWA) Cancellation of Removal

A lawful permanent resident or a nonpermanent resident who wins VAWA cancellation of removal will have his or her status adjusted to permanent residency.

To qualify for cancellation of removal under VAWA, you must prove:

  • a qualifying relationship with a United States citizen or lawful permanent resident;
    • This means that you must be:
      • the spouse or child of a United States citizen or a lawful permanent resident;
      • the spouse or child of a United States citizen or lawful permanent resident who lost his status within the past two years because of domestic violence;
      • the former spouse of a United States citizen or lawful permanent resident and the divorce took place in the past two years and was related to domestic violence;
      • the spouse of a United States citizen or lawful permanent resident who was a bigamist if you married the United States citizen or lawful permanent resident in good faith and with an intent to legally marry;
      • the spouse of a United States citizen who died within the past two years;
      • a non-abused parent of a child abused by a United States citizen or lawful permanent resident spouse, even if the child and abuser are not related;
      • an abused "intended spouse" (fiancé) of a United States citizen or a lawful permanent resident;
      • an abused child of a United States citizen or a lawful permanent resident; or
      • an abused parent who has been battered or subjected to extreme cruelty by your adult United States citizen son or daughter.
  • three years of continuous physical presence in the United States immediately preceding the date of your application for cancellation of removal;
  • you have been a person of good moral character during this three years;
  • that your marriage to the abuser was made in "good faith" (not in an attempt to violate immigration laws);
  • "battery or extreme cruelty" by the abuser; and
  • that you, your child, and/or your parent would suffer "extreme hardship" if removed from the United States.

Fulfilling the list of above requirements only makes a person eligible to apply for cancellation of removal. Meeting the eligibility requirements does not mean that you will be allowed to stay in the United States.

Cancellation of removal is always discretionary. This means that the Immigration Judge must decide that you deserve cancellation of removal after finding that you meet the eligibility requirements.

Cancellation of Removal for NACARA Beneficiaries

Certain people from El Salvador, Guatemala, and Eastern European countries are eligible for cancellation of removal through the Nicaraguan Adjustment and Central American Relief Act (NACARA). Under NACARA, the requirements you must meet to qualify for cancellation of removal depend on the country you are from.

Salvadorans

If you are from El Salvador, to qualify for cancellation of removal under NACARA, you must show:

  • you entered the United States on or before September 19, 1990;
  • you have Temporary Protected Status (TPS) or you registered as a class member in the American Baptist Churches (ABC) class action on or before October 31, 1991 or you filed an application for asylum before April 1, 1990;
  • you were not apprehended at any time at which you entered the United States after December 19, 1990;
  • seven years of continuous physical presence in the United States immediately preceding the date of your application for cancellation of removal; and
  • you have been a person of good moral character during this seven years.

If you have registered for ABC or TPS and filed an application for asylum that is still pending, your application for cancellation of removal will be decided by the asylum office of United States Citizenship and Immigration Services.

If your application for asylum was sent to the Immigration Court or you are in removal proceedings, the Immigration Judge will decide your application for cancellation of removal.

Guatemalans

If you are from Guatemala, to qualify for cancellation of removal under NACARA, you must show:

  • you entered the United States on or before October 1, 1990;
  • you registered as an ABC class member on or before December 31, 1991 or you filed an application for asylum before April 1, 1990;
  • seven years of continuous physical presence in the United States immediately preceding the date of your application for cancellation of removal; and
  • you have been a person of good moral character during this seven years.

If you have registered for ABC and filed an application for asylum before January 3, 1995 that is still pending, your application for cancellation of removal will be decided by the USCIS asylum office.

If your application for asylum was sent to the Immigration Court or you are in removal proceedings, the Immigration Judge will decide your application for cancellation of removal.

Eastern Europeans

If you are from Eastern Europe, to qualify for cancellation of removal under NACARA, you must show:

  • You entered the United States on or before December 31, 1990;
  • You filed an application for asylum on or before December 31, 1991;
  • Proof of your citizenship in the former Soviet Union, or Eastern bloc countries under the control of the Soviet Union;
  • Seven years of continuous physical presence in the United States immediately preceding the date of your application for cancellation of removal; and
  • You have been a person of good moral character during this seven years. 

If you meet the above requirements, your application for cancellation of removal should be sent to the USCIS asylum office, which will decide your asylum and cancellation of removal applications.

If your application for asylum was sent to the Immigration Court or you are in removal proceedings, the Immigration Judge will decide your application for cancellation of removal.