Law

Cancellation of Removal – A Defense to Deportation

Cancellation of removal is a defense to deportation available to both permanent residents and non-permanent residents who entered the country without inspection or overstayed a visa. A cancellation of removal application must include supporting documents that prove physical presence in the United States for ten years.

Additionally, the applicant must show that removal would result in exceptional and extremely unusual hardship to a US citizen or lawful permanent resident spouse, parent or child.

What is Cancellation of Removal?

Cancellation of removal is a form of relief for people who are in removal proceedings. It allows lawful permanent residents (LPRs) to stay in the United States without being deported. To qualify for this type of relief, you must meet three basic requirements: five years as an LPR and seven years of continuous physical presence. Immigration judges have the discretion to approve cancellation applications if they believe the applicant meets these basic requirements.

You must also demonstrate that your removal would cause exceptional and unusual hardship to a spouse, parent or child who is a U.S. citizen or permanent resident. Examples of exceptional and unusual hardship include children with severe medical conditions, a spouse who has committed domestic violence or an undocumented worker who cannot find employment in the United States.

You must also show good moral character and no criminal or immigration violations that could affect your eligibility for this form of relief. For example, convictions related to aggravated felonies and crimes involving moral turpitude can prevent you from qualifying for cancellation of removal.

Who is Eligible for Cancellation of Removal?

The applicant must show that he or she has been a lawful permanent resident for at least ten years, and has been physically present in the United States for a continuous period of those ten years. This is a difficult standard to meet. An immigration judge will consider factors such as employment history, tax records, family ties, community involvement, and testimonials when evaluating eligibility for cancellation of removal. An experienced attorney can help you determine whether you have met this requirement. Applicants must also demonstrate that their removal would result in exceptional and extremely unusual hardship to a spouse, parent, or child who is a U.S. citizen or LPR. An experienced attorney can help you prepare the necessary evidence to prove this.

Having certain criminal convictions, especially drug related offenses or crimes involving moral turpitude can disqualify you from obtaining cancellation of removal. An experienced immigration lawyer can help you figure out whether you have a disqualifying conviction.

What is the Burden of Proof in Cancellation of Removal?

In order to qualify for cancellation of removal (INA SS 240A), you must satisfy three statutory requirements. These requirements are different depending on whether you are a lawful permanent resident or a non-permanent resident. You must also show that you meet the statutory requirement for good moral character.

For a non-permanent resident, this means showing at least ten years of continuous physical presence in the United States. You can obtain proof of this through employment pay stubs, tax records, utility bills such as gas and electric, phone bills, credit card statements, and other documents.

If you were convicted of a crime of moral turpitude, this must be considered a crime of a “character” that warrants deportation or removal. You must have not been convicted of any other criminal or immigration violations, including fraud and dishonesty. In addition, you must show that your removal would result in extreme hardship to a U.S. citizen or permanent resident spouse, parent, or child.

How Does Cancellation of Removal Work?

Cancellation of removal is a defense to deportation that can be brought by non-citizens in removal proceedings before an immigration judge. It is available to permanent residents and non-permanent residents (people who snuck into the country or overstayed their visa). The threshold requirements are that the applicant must have accrued ten years of continuous physical presence in the United States and the judge finds that his or her removal would result in extreme hardship to family members. Proof of this continuous residence is best established by a long history of consistent, substantial employment, paying income taxes and supporting one’s family and through other forms of evidence like credit card bills, utility bills, phone records, medical records, school transcripts and more.

Depending on the circumstances of the case, the judge may also consider the immigrant’s moral character. Crimes involving moral turpitude, drug related crimes and other disqualifying convictions will not be considered. An attorney specializing in cancellation of removal can help figure out whether the individual is eligible for this form of relief.

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