CANCELLATION OF REMOVAL

An alien who is deportable from the United States may still be able to remain if an immigration judge has canceled their departure. The 1996 act created a form of relief for aliens in removal proceedings and named it “cancellation of removal.” There are two types of cancellation of removal: the first is cancellation of removal for permanent residents, while the second is cancellation of removal and adjustment of status for nonpermanent residents.

Cancellation of removal for permanent residents, (previously known as 212(c) relief), is available to an alien who is inadmissible or deportable from the United States if the alien: (1) has been an alien lawfully admitted for permanent residence for not less than five years, (2) has resided in the United States continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.

Cancellation of removal and adjustment of status for nonpermanent residents, (previously known as suspension of deportation), is available to an alien who is inadmissible or deportable from the United States if the alien: (1) has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of a criminal offense or security or terrorist related crime; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Cancellation of removal for permanent resident aliens does not specifically require that the alien have been continuously physically present in the United States, nor any specific showing of hardship. It also does not expressly require any showing of reformation or rehabilitation. However, based on court interpretations of the previous section 212(c), it must be assumed that these will be factors that the court will consider in deciding whether to grant the relief requested.

Cancellation of removal for nonpermanent residents (formerly suspension of deportation) has been made much more difficult to obtain under the new law. For instance, the 1996 Act requires that the hardship be “exceptional and extremely unusual” whereas previously it had only been “extreme” hardship. Congress clearly stated that the alien must provide evidence of harm “substantially beyond that which ordinarily would be expected to result from the alien’s deportation.” In addition, the hardship must now be suffered by the alien’s US citizen or lawful permanent resident spouse, parent, or child, and can no longer be only the alien’s own hardship. Furthermore, the new act restricts this form of relief to any alien who has not been a person of good moral character at any time during the relevant period which, according to the immigration position, is at any time during the alien’s stay in the United States.

An application for cancellation of removal, together with supporting documentation and filing fee, is filed on form EOIR-42A (for permanent residents) or EOIR 42B (for nonpermanent residents) with the immigration judge having jurisdiction over the proceedings. During the court hearing, it is important to remember that the alien has the burden of proving that hardship exits. Therefore, the alien should be prepared to bring witnesses to court together with documentary evidence that establishes the key points in his or her case. Where witnesses are not available, the alien should bring affidavits of witnesses. These affidavits should be thorough and complete. You can also request the judge to issue a subpoena for documents or to take a deposition of a key witness. If your case is well prepared, with good documentation and strong witnesses, you will have an excellent chance to obtain the relief that you are seeking.