Cancellation of Removal for Non-Lawful Permanent Residents
By Dev B. Viswanath, Esq.
A non-lawful permanent resident (someone without a green card) who is in removal proceedings may be eligible for cancellation of removal. If a non-LPR is not scheduled to have a hearing in Immigration Court or they already appeared in Immigration Court and their case is closed, they will not be able to apply for cancellation of removal. To apply for cancellation of removal the non-LPR must submit Form EOIR-42B with supporting documents showing that they meet all of the eligibility requirements to the Immigration Judge and the determination to grant this relief is discretionary.
Am I eligible for cancelation of removal? In order to be eligible for cancellation of removal the non-LPR must have been continuously physically present in the United States for at least ten years. The ten-year physical presence period starts at the date of entry and stops either when a Notice to Appear in immigration court by the Department of Homeland Security is issued, or if certain criminal offenses are committed, or if they have a single absence from the United States of 90 days or multiple absences from the United States adding up to 180 days or more. A Notice to Appear is a document given to a non-LPR to put them on notice of deportation or removal proceedings.
The non-LPR must also have been a person of good moral character during the ten-year period of presence. The non-LPR must also not have any criminal convictions which would render them ineligible for Cancellation. The non-LPR would need to show that possible deportation would cause “exceptional and extremely unusual hardship” to their LPR or U.S. citizen qualifying relative. A qualifying relative is a spouse, child, or parent. To meet the standard of exceptional and extremely unusual hardship the non-LPR must show that their deportation would cause the qualifying relative to suffer hardship which would be substantially worse that the hardship normally expected from deportation or separation.
Cancellation of removal can be granted only by an Immigration Judge and the non-LPR needs to present a convincing case in order to avoid an Order of Removal. Factors to be considered are whether there are many family members here; whether there are US born children who will have difficulty relocating, medical problems, financial considerations and other equities which may get weighed by the Judge. Witnesses, medical professionals, and other experts may often be used. However, if granted, the person will not only be prevented from being deported, but will also be granted a green card. There are a limited number of Cancellation of Removal grants that are allowed per year, and currently there is a backlog, which means that even if one were to be granted by the court, it may not happen immediately. However, this relief is sometimes the only chance that an individual may have to remain in the US if in proceedings and is a very valuable and useful form of relief to the right individual.
The Covid-19 pandemic has made dealing with the Immigration Courts much more frustrating because of the intense backlogs. However, if a person is eligible for cancellation of removal, then this is a remedy that should always be considered.