Cancellation of Removal?

By: James W. Oakley III

Long-term residence and family ties can matter in a removal case, but they do not by themselves establish eligibility for cancellation of removal. The legal requirements and the evidence need careful individual review.

Since 1952 Congress has grappled with the predicament for many of the immigrants here in the US and throughout the years has come forward with many adjustments to the Immigration and Nationality Act. Legislation, like cancellation of removal for certain non-permanent residents, gives a way for individuals in removal proceedings to defend themselves against deportation and remain with their family. To be successful in a request for cancellation of removal, an applicant must show that they:

• Have accumulated at least 10 years of continuous physical presence, subject to the stop-time rule and rules concerning departures from the United States. Do not simply count backward from the application date.

• Have been a person of good moral character during that ten-year period.

• Have not been convicted of an offense covered by 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3). These are statutory provisions in the United States Code, not sections of the Code of Federal Regulations. Criminal and immigration records require an individual legal analysis.

• If removed, their spouse, parent, or child who is a US citizen or permanent resident would suffer “exceptional and extremely unusual hardship.”

Under the stop-time rule in 8 U.S.C. § 1229b(d)(1), the period of continuous physical presence generally ends at the earlier of service of a legally sufficient Notice to Appear under 8 U.S.C. § 1229(a), or commission of a qualifying offense described in the statute. Whether a notice meets the legal requirements matters. Departures can also interrupt continuous presence. An attorney should review the actual notice, service history, travel history, and criminal record rather than assuming that time continued to accrue until the application was filed.

The ordinary nonpermanent-resident cancellation provision is 8 U.S.C. § 1229b(b)(1). Meeting its threshold requirements does not guarantee approval: the immigration judge must also exercise discretion favorably, and additional statutory bars and annual limits may apply. The required hardship is to a qualifying spouse, parent, or child, not simply hardship to the applicant. Different cancellation provisions may apply to lawful permanent residents or certain survivors of abuse.

What counts as exceptional and extremely unusual hardship? The answer depends on the qualifying relative's circumstances and the evidence. Medical conditions, educational needs, family support, and conditions in the country of removal may be relevant, but no single fact automatically establishes eligibility. Likewise, do not assume that a misdemeanor is harmless for immigration purposes.

With that in mind, how do you start? First, keep in mind that cancellation of removal is exclusively for people in removal proceedings. If the government is not trying to deport you, you cannot apply. Next, you will need to schedule an appointment with a qualified attorney with immigration experience. From there the attorney will collect personal history such as past addresses, jobs, divorces, criminal history, family situation, and more to properly fill out your application for cancellation of removal. The attorney files Form EOIR-42B with the appropriate immigration court under the applicable filing and service requirements.

The Form EOIR-42B has strict guidelines and must be filled out properly. Any deviation from the truth or from the information required may result in your application being denied. Avoid the hassle and make sure it gets done right the first time by seeking an immigration attorney. Here at Contigo Law we have been practicing immigration law for years. Contact us at 801-676-6548.

This article provides general information, not legal advice for your particular situation.