When Can Non-Permanent Residents Get Cancellation?

When Can Non-Permanent Residents Get Cancellation of Removal?

Non-permanent residents facing removal from the United States may be eligible for a form of relief called “cancellation of removal.” This relief allows certain non-permanent residents to have their removal cancelled and get permanent resident status.

What is Cancellation of Removal?

Cancellation of removal is a defense against deportation or removal available to some non-permanent residents. If granted cancellation, the non-permanent resident can stay in the U.S. permanently.

There are two forms of cancellation available:

• Cancellation of removal for non-permanent residents (non-LPR cancellation) – Available to some non-permanent residents who have lived in the U.S. continuously for 10 years or more.
• Cancellation of removal for permanent residents (LPR cancellation) – Available to lawful permanent residents (green card holders) who have lived in the U.S. continuously for 7 years or more.

This article will focus on non-LPR cancellation of removal.

Eligibility for Non-LPR Cancellation

To qualify for non-LPR cancellation of removal, the non-permanent resident must prove all of the following:

1. They have been physically present in the U.S. for 10 continuous years before receiving their Notice to Appear;
2. They have been a person of good moral character during that 10 year period;
3. Their spouse, parent or child who is a U.S. citizen or permanent resident would suffer exceptional and extremely unusual hardship if the non-permanent resident is deported;
4. They are not subject to any bars or inadmissibility grounds that prevent cancellation.

10 Years of Continuous Physical Presence

To qualify for cancellation, the non-citizen must have been physically present in the U.S. continuously for 10 years before receiving a Notice to Appear (NTA). The NTA is the document that initiates removal proceedings against the non-citizen.

Any trips outside the U.S. during those 10 years could break continuous presence, unless the trip was brief, casual and innocent. For example, a two-week vacation would likely not break continuous presence, but living abroad for 6 months likely would.

Unlike some other forms of immigration relief, cancellation allows the non-citizen to continue accruing time toward the 10 year rule after receiving their NTA. So even if the non-citizen has only been here 7 years when placed into proceedings, they can continue accumulating time until reaching 10 years.

Good Moral Character

The non-citizen must also show they have been a person of good moral character during the entire 10 year period. Certain criminal convictions or other evidence of bad character can prevent eligibility.

For example, a felony conviction or multiple misdemeanors can indicate a lack of good moral character. Immigration will look at the non-citizen’s entire history to determine if this requirement is met.

Exceptional and Extremely Unusual Hardship

In addition, the non-permanent resident must have a spouse, parent or child who is a U.S. citizen or permanent resident who would suffer exceptional and extremely unusual hardship if the non-citizen is deported. This is difficult to prove.

The hardship to the qualifying relative must be substantially beyond the normal hardship expected from family separation. Factors like family ties in the home country, health conditions, and financial impact are considered.

For example, showing that a U.S. citizen child would face lower quality health care in the home country could help meet this requirement. But missing life events or general hardship from family separation is usually not enough.

Bars to Cancellation

Additionally, non-citizens are not eligible for cancellation of removal if they are subject to certain inadmissibility grounds or criminal bars. These include:

• Security and terrorism related bars
• Multiple criminal convictions
• Persecution of others
• Human trafficking
• Drug offenses
• Firearm offenses
• Other crimes

Waivers may be available for some of these bars. An experienced immigration attorney can advise on any waivers that could help the non-citizen qualify for cancellation despite a potential bar.

Cancellation of Removal Process

Non-permanent residents place themselves at risk of removal just by applying for cancellation with U.S. Citizenship and Immigration Services (USCIS). Denial would result immediately in a removal order.

Instead, a non-permanent resident seeking cancellation will go through the following process:

1. The Department of Homeland Security initiates removal proceedings against the non-citizen by serving them an NTA.
2. The non-citizen appears before an immigration judge and asserts cancellation of removal as a defense against removal.
3. The non-citizen submits a cancellation application and supporting documents to the immigration judge.
4. A merits hearing is held where the non-citizen must prove eligibility for cancellation.
5. If the application is approved, removal proceedings are cancelled and the non-citizen gets permanent resident status.

This entire court process can take over a year in most cases. Non-citizens should have an immigration lawyer to represent them throughout.

Finding an Immigration Attorney

Trying to get cancellation of removal without an attorney is extremely difficult, even for those who are eligible. Unlike criminal court, immigration court does not provide public defenders.

The experienced immigration lawyers at r/immigration on Reddit or Quora’s immigration law topics can help you find attorneys in your state who handle cancellation cases. You can also check legal sites like Avvo, LawInfo, and FindLaw for immigration lawyer listings and reviews.

When researching attorneys, look for ones experienced specifically in cancellation of removal cases. Expect to pay $5,000 or more in legal fees since these complex cases involve extensive documentation and court hearings.

Trying to save money by not hiring an attorney often backfires. The success rate for cancellation applicants with lawyers is significantly higher compared to those without representation.

Other Defenses Against Removal

If you do not qualify for cancellation of removal, ask your attorney about other possible defenses, such as:

• Asylum – Available to non-citizens fleeing persecution or torture in home country
• Withholding of removal – Similar to asylum but a higher legal standard to meet
• Convention Against Torture relief – Must prove likely torture if deported home
• VAWA cancellation – For victims of domestic abuse by a U.S. citizen or permanent resident spouse or parent

An experienced immigration lawyer can assess your situation and advise you on the best defense against deportation or removal.

Takeaways

• Non-permanent residents may qualify to get permanent status through cancellation of removal
• Must prove physical presence for 10 years, good moral character, and exceptional hardship to a qualifying U.S. relative
• Inadmissibility bars may prevent eligibility unless waivers are available
• Process involves court hearings and extensive documentation
• Experienced immigration attorney representation strongly recommended

Getting cancellation of removal is difficult and risky without legal guidance. Consult with immigration lawyers to understand your options and start building your case today.