Cancellation of Removal.

Cancellation of removal is a form of relief from deportation. It is not a benefit an individual can seek in a standalone application through the U.S. Citizenship and Immigration Services (USCIS). Instead, it is an available defense, which means removal proceedings must first be formally commenced. As a result, aliens who are (or may soon be) subject to removal are eligible to seek cancellation of removal only if the Department of Homeland Security issues a Notice to Appear (NTA) in immigration court.

Who Decides the Immigration Court’s Cancellation of Removal Applications?

An immigration judge decides an individual’s cancellation of removal application in immigration court. Because cancellation is an affirmative defense, the legal basis for this type of relief includes broad statutory criteria, but it also grants immigration judges wide latitude in making their determinations. Even when an individual appears to qualify for cancellation on the face of his or her application, the immigration judge retains the authority to deny the application based on the facts presented during the hearing.

Are Immigration Judges Required to Grant Cancellation of Removal?

Whether an individual will ultimately be granted cancellation of removal depends on several factors, some of which are within the alien’s control. However, as an alien seeking cancellation of removal without the requisite length of lawful permanent resident (LPR) status, you will need to show that your removal would result in “exceptional and extremely unusual hardship” to a qualifying United States citizen or lawful permanent resident spouse, parent, or child. Even if you have a credible family-based justification for cancellation of removal, the immigration judge still retains broad discretion, and Non-LPR cancellation applications can be denied even when they satisfy every explicit statutory requirement.

Can a Non-LPR Prove 10 Years of Continuous Presence, Good Moral Character, and Statutory Eligibility?

Non-LPR applicants must prove at least ten years of “continuous physical presence” (CPP) for a continuous ten-year period preceding their Notice to Appear (NTA) date. The CPP requirement for Non-LPR cancellation is subject to specific exceptions (see below), and proving CPP is critical because failure to meet the ten-year threshold makes the applicant statutorily ineligible for cancellation of removal under the Immigration and Nationality Act.

With this in mind, proving the requisite length of lawful permanent residency (LPR) is relatively straightforward. However, if you do not have LPR status, you have to show a ten-year period that does not start or end on an LPR-violating date.

Under what circumstances does an applicant’s continuous physical presence end for purposes of a Non-LPR cancellation application?

1. Triggering the “Stop-Time” Rule

Under the so-called “stop-time” rule, an individual’s continuous physical presence (CPP) accrual stops when the alien is served with a single-document Notice to Appear containing the information required by 8 U.S.C. § 1229(a)(1). The NTA is a Notice to Appear in Court, not an NTA for asylum or other related issues, and that generally is served before removal proceedings begin. However, there are statutory exceptions and judicial interpretation that might extend CPP or allow for a period of CPP to be excluded entirely, and understanding how (and when) the stop-time rule is triggered is critical.

But, what else triggers stop-time for CPP?

2. Qualifying Grounds of Deportability or Inadmissibility

Certain grounds of deportability or inadmissibility (or attempted violations) also trigger the stop-time rule for CPP accrual under 8 U.S.C. § 1229b(d)(1). These include:

• An offense referred to in 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2), or 8 U.S.C. § 1227(a)(4)
• An offense referred to in 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2), or 8 U.S.C. § 1227(a)(4)
• An offense referred to in 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2), or 8 U.S.C. § 1227(a)(4)
• Committing certain immigration-related offenses.

How Is Exceptional Hardship Proved When Ordinary Financial Strain Is Not Enough?

Along with proving continuous presence and good moral character, Non-LPRs must also show that they face “exceptional and extremely unusual hardship” as a result of their removal. This is not just “hardship,” which can be a common result of deportation, and it is a higher standard that Non-LPRs must be prepared to prove.

To qualify for Non-LPR cancellation, you must have a qualifying relative. This includes a United States citizen or Lawful Permanent Resident (LPR) spouse, parent, or child. While financial strain and loss of family companionship are very real results of deportation, they are generally not considered “exceptional and extremely unusual” on their own. Instead, individuals seeking Non-LPR cancellation need to show specific extraordinary factors, and this often means proving unique medical needs or other compelling circumstances that would significantly increase the hardship of removal.

What Evidence is Used to Prove Qualifications for Cancellation of Removal?

Along with proving your qualifying relationship, showing continuous physical presence, and establishing good moral character, proving exceptional and extremely unusual hardship is all about documenting your circumstances. This includes showing financial strain through leases, mortgages, tax returns, healthcare costs, and employment records, as well as proving your qualifying relative’s citizenship or LPR status. If a qualifying relative is a child, documentation of developmental or other special needs can also be pertinent.

What Forms of Evidence Might an Immigration Judge Consider for a Cancellation of Removal Application?

An immigration judge is likely to consider evidence of your qualifying relative’s U.S. citizenship or LPR status and your relationship with your qualifying relative, in addition to:

• Evidence of your continuous physical presence (CPP) and good moral character;
• Evidence of substantial hardship, including evidence of financial and other hardship to you and your qualifying relative;
• Evidence of unique circumstances, such as extraordinary medical needs, disability, or other compelling conditions that increase the burden of removal.

Which Cancellation Rules Apply to Permanent Residents and Abused Relatives?

For aliens who have acquired lawful permanent resident (LPR) status, there is a different form of cancellation available under the Immigration and Nationality Act (INA), cancellation of removal for LPRs. Generally, this form of cancellation is available if you have been an LPR for at least five years, and you have at least seven years of continuous residence in the United States after having been lawfully admitted in any status.

LPR Cancellation Eligibility and Statutory Bars

Under 8 U.S.C. § 1229b(a), an LPR seeking cancellation must have been a lawful permanent resident for at least five years and must not have been convicted of an aggravated felony. This statutory provision imposes an additional bar beyond the general 7-year continuous residence requirement for LPRs, and individuals seeking LPR cancellation must satisfy the statutory seven-year continuous residence requirement. The U.S. government will raise this against anyone seeking cancellation of removal if they have been convicted of an aggravated felony, so this is an important consideration.

LPR Cancellation Discretionary Grant

Even if you meet all statutory eligibility requirements, such as being an LPR for five years and having seven years of continuous residence, these are only two of several factors an immigration judge will consider when exercising discretion. Like all other forms of relief from removal, LPR cancellation is subject to judicial discretion, and you must convince the judge that you warrant cancellation of removal as a matter of discretion under the totality of the circumstances.

Abused Spouse, Child, or Parent Eligibility

Finally, Non-LPRs may also seek cancellation of removal in cases involving domestic violence or abuse. Under the Violence Against Women Act (VAWA), battered spouses and children may qualify for special-rule cancellation of removal even if they do not meet all of the traditional non-LPR requirements. This is a sensitive and unique area of immigration law, and it requires a tailored approach when pursuing the available defenses to deportation.

What Do Criminal Records, Fee Quotes, Success Claims, and Appeals Really Show?

Are Criminal and Immigration Records a Problem?

If you have a criminal or immigration record that you think will be relevant, then we recommend submitting copies of your records with your application for cancellation of removal. Explain why your records are relevant, and explain anything that the immigration judge needs to know. With that said, however, your criminal and immigration records alone do not have to be used to defeat your application, and if they have not had any impact so far, there may not be any need to submit them.

What If Your Application Is Denied?

If your application is denied, you have the right to appeal. Most often, this will be to the Board of Immigration Appeals (BIA). For individuals and families who seek cancellation of removal, an appeal to the Board of Immigration Appeals is one way to seek review of a denied application.

How Successful Are Competitors at Achieving Cancellation of Removal?

The competing law firms of the United States Immigration Department and 700 Law Firm do not publish their cancellation success rates. So, while these firms are widely believed to be successful in their work, they do not have any recorded figures to back up these claims.

How Much Do Competitors Charge for Cancellation of Removal Attorney Fees?

The federal government does not establish a statutory fee for cancellation applications, and no immigration-focused law firm can provide an accurate estimate of how much they will charge for a cancellation case without knowing the specifics. Complexity is a factor, and the level of need is another. Our competing law firms of the United States Immigration Department and 700 Law Firm do not publish their specific attorney fees for cancellation applications either.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.