CANCELLATION OF REMOVAL
While in Deportation/Removal Proceedings
§§ 244(a), 212(c) of
the Immigration and Nationality Act of 1952 ("Act"),
Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. § 1254e.
Exclusion: § 236, of the Act, 8 U.S.C. § 1226
Removal: §§ 240A(a), (b), 8 U.S.C. § 1230A(a), (b)
Copyright © 1999 VIKRAM BADRINATH, P.C. · All rights reserved. ·
Generally, any alien admitted for lawful permanent residence who has been placed into Deportation or Removal proceedings before an Immigration Court and who is prima facie eligible for relief from such proceedings, may present favorable evidence on his behalf (documents, certificates, letters of recommendation, awards, affidavits of witness, live witness testimony, experts, etc.) and request that an Immigration Judge weigh the positive and negative factors present in his case to determine whether or not the alien may be permitted to retain his lawful permanent residence and remain in the United States in lieu of being deported or removed by formal order. Under new Removal procedures, this type of application for relief is known as "Cancellation of Removal."
A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning his status to that of a lawful permanent resident. Only certain grounds of deportability may be waived by a grant of Cancellation of Removal. Moreover, under new immigration laws, an alien is only eligible for one (1) grant of such relief in a lifetime. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of designation (citizenship, nationality, or last residence) through a forcible order effectuating his removal or deportation from the United States. If an alien accept an order of removal or deportation, the U.S. INS will carry out the order and remove the alien from the country. Alternatively, an alien may seek review before the Board of Immigration Appeals in Falls Church, VA, and thereafter in a Federal Court of Appeals for the District in which he resides. It should be noted, however, that
There are two types of Cancellation of Removal that available to an alien in removal proceedings.
Section A; for Lawful Permanent Residents: In order to request this type of cancellation of removal, an alien must demonstrate: (1) he has been an alien lawfully admitted for permanent residence status for not less than five (5) years; (2) he has resided in the United States continuously for seven (7) yeras after having been admitted in any status; (3) he has not been convicted of an "aggravated felony" as defined by the Immigration laws (See section 101(a)(43) of the Act.) [e.g., regardless of how the State Court characterized the offense, such as non-dangerous or non-aggravated, an offense may still be designated as an "aggravated felony" under Federal immigration law.
Section B; for non-permanent resident aliens (undocumented, nonimmigrants, etc.): In order for an alien to request this type of cancellation of removal, an alien must demonstrate: (1) he has been physically present in the United States for ten (10) years preceding the date of the request; (2) he has been a person of good moral character during those ten (10) years (e.g., no criminal/immigration record); (3) he has not been convicted of an offense as described under §§ 212(a)(2) [controlled substance violations, crimes involving moral turpitude], 237(a)(2) [deportable criminal offenses], 237(a)(3) [documentary fraud]; (4) 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 a lawful permanent resident..
Please note that under either option of cancellation of removal, an Immigration Judge will balance certain positive factors against negative factors in determining whether an alien should be permitted to remain in the United States. In the case of Section A Cancellation, a granted application will have the effect of allowing the lawful permanent resident to maintain his status and remain in the United States. In the case of Section B Cancellation, a granted application will have the effect of allowing an undocumented alien or nonimmigrant to become a permanent resident of the United States. An Immigration Judge will consider such factors as family ties, history of employment, community service, long residency in the United States, property & assets, criminal record, immigration violations, rehabilitation & remorse, etc. Both types of applications for Cancellation of Removal are discretionary in nature, permitting an Immigration Judge to grant or deny the application as he deems fit. Even if an alien can demonstrate all of the above factors, this does not mean that an application will be granted, only that he has demonstrated prima facie (minimum standards for eligibility) eligibility.
An application for Cancellation of Removal under
§ 240A(a) must be made on Form EOIR-42A. An application for
Cancellation of Removal under § 240A(b) must be made on Form
EOIR-42B. Both applications require a filing fee of $100 to be
paid to the U.S. INS. Additionally, applicants must pay a $25
fingerprinting fee to the U.S. INS. Both types of applications
should be submitted with a Biographic Information Form, Form
G-325A and supporting documentation and exhibits to demonstrate
eligibility for the requested relief.
For more information about requesting Cancellation of Removal before an Immigration Judge, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.