Facing deportation can feel like your life is being turned upside down. But if you’re in removal proceedings, you may not be out of options. One of the most important tools to stop deportation—and possibly gain lawful status—is a legal remedy known as Cancellation of Removal.
Cancellation of removal is a powerful legal remedy in U.S. immigration law that allows certain non-citizens—both lawful permanent residents (LPRs) and undocumented individuals—to stop deportation and obtain legal status. If approved, it converts a person’s status from “deportable” to “lawfully admitted for permanent residence.”
This form of relief is granted at the discretion of an immigration judge, based on the immigrant’s background, family ties, and the hardship their removal would cause.
In this guide, you’ll learn what cancellation of removal is, who qualifies, how the process works, and what forms and evidence you’ll need to file a strong case.
Removal proceedings are the legal process the U.S. government uses to deport noncitizens. These hearings take place in immigration court and are handled by the Executive Office for Immigration Review (EOIR).
Removal proceedings may begin if:
In rare cases, even naturalized citizens can face removal if the government claims fraud in their application.
Learn more: EOIR Overview – U.S. DOJ
Warning: If you miss a hearing, the judge can issue a removal order in absentia, meaning you’ll be deported without being present.
Deportation orders are issued by Immigration Judges.
If you or a loved one is facing deportation, consult a qualified immigration attorney immediately.
Under the Immigration and Nationality Act (INA) §237, immigrants can be placed in removal proceedings for:
Everyday actions can also cause issues, such as:
Relief from removal is a legal defense you can request to stop or delay deportation. You may qualify for multiple types of relief depending on your circumstances. Some result in permanent residency, while others provide time to prepare or apply for another legal status.
Cancellation of Removal is a type of legal relief that allows certain immigrants—both lawful permanent residents (LPRs) and undocumented individuals—to avoid deportation and either keep or obtain lawful status. Removal cancellation is a provision under the Immigration and Nationality Act (INA) that serves as a relief mechanism for aliens in removal proceedings, highlighting eligibility criteria for both permanent and non-permanent residents.
This relief is discretionary, meaning it’s up to the immigration judge to decide whether to grant it, even if you meet all the eligibility requirements.
There are three main types of cancellation of removal, each with different requirements:
Let’s break down each of these programs.
Before we dive into the requirements of the various cancellation categories, let’s look at why this program is so important now.
Trump’s administration has initiated a mass deportation effort to arrest and deport millions of immigrants.
The hardline enforces in the White House have dramatically expanded deportation operations, using:
According to Migration Policy Institute, nearly 11.3 million undocumented immigrants were living in the U.S. in 2022. A majority—7 million—have been in the country for over a decade.
That’s where Cancellation of Removal becomes one of the most powerful and necessary forms of defense.
There is a statutory cap of 4,000 approvals per year for non-LPR cancellation of removal. Once that cap is reached, cases may be delayed, even after the immigration judge approves the application.
Only 7% of pending immigration court cases involve cancellation of removal, even though millions may qualify.
These numbers underscore why eligible immigrants must act now—and why immigration advocates and attorneys need to proactively screen their clients for eligibility.
Cancellation of removal is not automatic—even if you meet the legal requirements. Immigration judges have broad discretion and weigh factors like:
Positive factors may tip the balance in your favor.
The court may also consider negative factors like prior immigration violations, false claims to citizenship, or repeat criminal behavior.
The judge must look at the totality of circumstances—all hardship factors combined—not just one issue in isolation.
See the EOIR data portal:
Immigration Court Statistics – EOIR
Now let’s dive into the key requirements for Cancellation of Removal cases.
T To qualify under INA § 240A(a), you must meet all of the following:
If granted, the applicant retains her/his green card.
Note: Even if a crime isn’t considered a felony under state law, it may still count as an aggravated felony for immigration purposes under INA §101(a)(43).
Learn more: List of Aggravated Felonies – INA §101(a)(43)
As discussed below, certain criminal acts will “stop” the accumulation of continuous presence.
If you are undocumented or entered without inspection, you may be eligible under the 10-Year Rule under INA § 240A(c).
To qualify, you must prove:
Under INA § 240A(c), certain individuals are not eligible for this relief. You cannot apply if you:
Even if all requirements are met, immigration judges have full discretion to approve or deny the application.
Do not file a non-LPR cancellation case just to try and stop deportation unless you are already in removal proceedings and has a strong case. These cases are difficult to win, especially due to the requirement of proving “exceptional and extremely unusual hardship.”
Important: The 10-year period stops as soon as you are served with a Notice to Appear (NTA) or commit certain crimes. This is known as the “stop-time rule.”
If granted, the applicant receives a green card.
Get the official statute here:
INA §240A – Cancellation of Removal
Read More:
Also known as 3-Year Cancellation, this version is for survivors of domestic abuse, including:
You do not need to be married to the abuser or even still living with them to qualify.
If granted, the applicant receives a green card.
The cancellation process has two stages in immigration court:
If you are in removal proceedings and believe you qualify, here’s what to file:
|
Document |
Purpose |
| EOIR-42A | For LPRs applying for cancellation of removal |
| EOIR-42B | For non-LPRs applying for cancellation of removal |
| G-325A | Biographic information |
| Filing fee ($100) or Form I-912 | Request to waive the fee |
| Biometrics fee ($85) | For fingerprinting and background checks |
| Passport photos (2) | One for the court, one for DHS |
| Certificate of Service | Proof that both the court and DHS received your application |
| Supporting evidence | Medical records, tax returns, school transcripts, letters, etc. |
For non-LPRs, 10 years of continuous physical presence is required.
The 10-year countdown stops when:
If your NTA lacks a specific date/time, recent rulings (e.g., Pereira v. Sessions, 2018) may mean the stop-time rule was not triggered. This can be critical for your case.
Exceptions:
Military service members with at least 24 months of honorable U.S. service, and some pre 1997 deportation cases, may be exempt from this requirement.
The 10-year clock ends the day you’re issued a Notice to Appear (NTA). Time after receiving the NTA doesn’t count. You can use documents like:
Note: Brief departures (under 90 days at a time, and less than 180 days total) may not break continuous presence.
Proving exceptional and extremely unusual hardship to a qualifying relative is one of the toughest requirements for non-LPR cancellation. This is a very high standard. It means your qualifying relative must face hardship that goes well beyond normal difficulties of family separation.
According to Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), judges must consider factors like:
Only a qualifying relative:
Standard is very high—ordinary hardship is not enough.
In Matter of Recinas, a single mother of six U.S. citizen children won cancellation. Her case showed:
This case set an important precedent and shows how thorough documentation of hardship can
1. Medical Condition – Peanut Allergy
A child’s life-threatening peanut allergy was key in a successful case. The judge was convinced that:
2. Caregiver Burden – Teen with Disabled Sibling
In another case, a mother was the sole caregiver to her adult disabled son. While he wasn’t a qualifying relative due to age, the judge approved cancellation because:
Judges look at the total impact on the qualifying relative. A compelling hardship narrative and strong documentation can make or break your case.
Common Challenges and Tips for Success
|
Challenge |
Tip for Overcoming It |
| Proving 10 years of presence | Gather old pay stubs, school records, lease agreements, medical records, or affidavits from community members |
| Demonstrating good moral character | Collect letters from employers, religious leaders, neighbors, and community organizations |
| Showing exceptional hardship | Document medical needs, school records, therapy reports, and economic dependency |
| Time limits / child aging out | Request expedited decision if a child is turning 21 soon |
The qualifying child must still be under 21 on the date the judge finalizes the grant. Matter of Isidro, 25 I&N Dec. 829 (BIA 2012)
To qualify for cancellation, applicants must prove 10 years of Good Moral Character, separate from the 10-year physical presence. Even if a convition is not an aggravated felony and is not a statutory bar, it could negatively impact the good moral character determination.
Certain convictions will bar immigrants from non-LPR cancellation of removal and other forms of relief. Other convictions will not bar relief, but negatively impact the determination of good moral character.
Aggravated felonies are bars to all cancellation cases. Defined broadly in INA §101(a)(43). Includes:
Vague but includes crimes involving:
Important:
Even a single CIMT with a potential sentence of one year can make a non-LPR ineligible.
You cannot apply if you’ve been convicted of:
A single CIMT conviction may not bar eligibility if:
Example: Harry qualifies; Carrie doesn’t—Carrie’s theft statute carries a max sentence of one year.
Judges will also weigh positive factors, such as:
Unlike physical presence, the 10-year good moral character clock continues until your final hearing.
Even dismissed or old convictions may count. You should:
|
Requirement |
Key Rule |
| Continuous Physical Presence | 10+ years before NTA service |
| Good Moral Character (GMC) | For 10 years prior to final decision |
| No Disqualifying Criminal Convictions | Under INA §§ 212(a)(2), 237(a)(2), 237(a)(3) |
| Hardship to Qualifying Relative | Must be “exceptional and extremely unusual” |
|
Action |
Bars GMC? |
Bars Cancellation? |
| Drug trafficking | Yes | No (if not convicted) |
| CIMT conviction | Yes | Yes |
| Prostitution conviction | Yes | Yes |
| Habitual drunkard | Yes | No |
Tip: Judges may deny cancellation based on discretion, even if no crime bars apply.
The stop-time rule determines when the clock stops on your 7-year continuous residence requirement. A notice to appear (NTA) or certain criminal offenses can cut off your ability to meet this time requirement.
In Barton v. Barr, the Supreme Court held that committing certain criminal offenses—even if they don’t make you removable—can trigger the stop-time rule. That means your 7-year clock can stop running before you’ve reached the required period of residence, making you ineligible.
Read the case: Barton v. Barr, 140 S.Ct. 1442 (2020)
Criminal convictions, especially aggravated felonies, can bar eligibility. However:
Not all deportable offenses bar cancellation. Key is whether they also make you inadmissible under § 212(a)(2). More on this in Section 5.
These don’t need to make you removable to trigger the stop-time rule—they just need to be offenses that would have made you inadmissible under INA § 212.
The “stop-time” rule ends your 7-year residency clock in two situations:
In Barton v. Barr (2020), the Supreme Court ruled:
For more, see: Practice Advisory on Barton v. Barr
If your conviction is blocking relief:
Explore: Post-Conviction Options for Immigrants (ILRC Guide)
Even if you meet all criteria, a judge can still deny relief. They consider:
Tip: Submitting letters of support, therapy records, and proof of rehabilitation can help your case.
Yes, in some cases:
They cannot be combined with each other or with LPR cancellation. Learn more: ILRC Guide to INA § 212(h)
Despite the harshness of the Barton decision, there are still strategies that may help:
1. Challenge Whether the Offense Stops Time
2. Push Back on the NTA
Resource: Practice Advisory – Avoiding the Stop-Time Rule after Barton v. Barr (ILRC)
|
Step |
Question |
| 1 | Are you in removal proceedings as an LPR? |
| 2 | Have you been an LPR for at least 5 years? |
| 3 | Have you continuously resided in the U.S. for at least 7 years after lawful admission? |
| 4 | Did any criminal offense or NTA stop your time before 7 years were reached? |
| 5 | Have you avoided conviction of an aggravated felony? |
| 6 | Do you have strong discretionary factors (rehabilitation, family, etc.)? |
Even if you’re eligible, the judge can still deny your request. They will consider:
VAWA (Violence Against Women Act) Cancellation of Removal is a form of relief available to non-citizens in the United States who have been subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident (LPR) spouse or parent. This relief allows eligible individuals to apply for cancellation of removal and adjust their status to that of a lawful permanent resident.
To qualify for VAWA Cancellation of Removal, an applicant must meet the following requirements:
Important Considerations:
VAWA Cancellation of Removal provides a pathway for certain non-citizens who have been victims of abuse to seek relief from deportation and obtain lawful permanent residency. Meeting the eligibility criteria and effectively presenting the case requires careful preparation and, ideally, the assistance of knowledgeable legal counsel.
After filing your Form EOIR-42B and paying the fee, you may apply for a work permit (EAD). It’s usually valid for one year and can be renewed while waiting for your final hearing or decision.
For non-detained individuals:
If detained:
Public charge grounds typically do not bar cancellation of removal.
Even if you’ve used public benefits like Medicaid or SNAP, this usually won’t affect your cancellation application.
Learn more:
Public Charge Rule FAQs – USCIS
There is no form to apply for cancellation of removal unless you are already in immigration court. Beware of notarios or unlicensed consultants who claim otherwise.
Some scams involve filing fake asylum claims to trigger court proceedings—this can backfire and ruin your chances for cancellation.
If you aren’t currently in court, you can still prepare:
If cancellation of removal isn’t available, there may still be hope.
Main Types of Relief From Removal
If you fear persecution in your home country, you can apply for asylum as a defense to deportation.
You must show:
Asylum can lead to a green card and work authorization.
You also may be eligible for Withholding of Removal: If you fear persecution based on race, religion, nationality, political opinion, or membership in a social group. There is not 1 year filing deadline
Convention Against Torture (CAT): If you fear torture in your home country.
Adjustment of status allows you to apply for a green card from within the U.S. even during removal proceedings.
Eligibility
Special exceptions exist for applicants with family petitions filed before April 30, 2001, under 245(i).
Check your visa category and availability
Voluntary Departure allows you to leave the U.S. on your own before being forcibly deported.
Benefits
Drawbacks
If you lose your case, you have the right to appeal to the BIA within 30 days.
Appeals can result in:
How to Appeal – EOIR BIA Guide
These motions allow you to challenge a removal order after the fact.
A stay of removal temporarily pauses deportation while an appeal or motion is pending.
|
Relief Type |
Stops Deportation? |
Leads to Green Card? |
Requires Family in U.S.? |
| Voluntary Departure | Temporarily | No | No |
| Cancellation (LPR) | Yes | Keeps green card | Helpful, but not required |
| Cancellation (Non-LPR) | Yes | Yes | Yes (must prove hardship) |
| Adjustment of Status | Yes | Yes | Yes (family/employer petition) |
| Asylum | Yes | Yes | Not required |
| Appeal / Motion | Pauses process | Possibly | Not required |
| Stay of Removal | Pauses process | No | Not required |
Cancellation of removal cases are complex, with high stakes and strict legal standards. A skilled immigration attorney can help you:
Find legal help:
|
Type |
Years of Presence |
Hardship Standard |
Qualifying Relatives |
| Green Card Holder | 5 (LPR), 7 (residence) | Not required | None |
| Non-LPR (Undocumented) | 10 | Exceptional & Extremely Unusual Hardship | Spouse, parent, or child (USC/LPR) |
| VAWA (Abuse Victims) | 3 | Extreme Hardship | Self or child |
Winning a cancellation of removal case requires clear, detailed documentation. You’ll need to prove every element of your eligibility. Here’s what helps:
This is the hardest part. You must show that hardship to your qualifying relative is far beyond normal family separation. Judges look for things like:
Some crimes automatically disqualify applicants, including:
For non-permanent residents, USCIS only grants 4,000 cancellation of removal approvals per year. Once the cap is reached, even eligible applicants may have to wait.
See Data:
Source: TRAC Immigration Data Tools
If the immigration judge approves your cancellation of removal application:
If Denied:
Need legal help with your appeal?
Find an Accredited Immigration Lawyer
If ICE knocks at your door or detains you:
Attorneys and DOJ-accredited reps should:
If delays threaten your client’s eligibility, EOIR may consider motions to expedite final approval to avoid disqualifying due to a child aging out.
Case reference: Matter of Isidro, 25 I&N Dec. 829 (BIA 2012)
General Questions About Cancellation of Removal
What is cancellation of removal?
Cancellation of removal is a discretionary form of immigration relief that allows certain noncitizens in removal (deportation) proceedings to remain in the U.S. legally. If granted, it either preserves or grants lawful permanent resident (green card) status.
Who decides whether my cancellation of removal application is approved?
An immigration judge in immigration court decides whether to grant cancellation of removal after reviewing evidence and hearing testimony.
Do I have to be in removal proceedings to apply for cancellation of removal?
Yes. You can only request cancellation of removal as a defense during immigration court proceedings.
Is there a filing fee for cancellation of removal?
Yes. As of 2025, the filing fee for non-LPR cancellation of removal is $100, plus an $85 biometrics fee. There is no fee for LPR cancellation of removal.
Can I apply for cancellation of removal more than once?
Generally, you can only receive cancellation of removal once in your lifetime. There are limited exceptions in rare cases.
FAQs for Lawful Permanent Residents (LPRs)
Who qualifies for cancellation of removal as a lawful permanent resident?
You may qualify if you:
Does time spent in the U.S. before getting my green card count toward the 7-year requirement?
No. The 7 years of continuous residence must begin after a lawful admission to the U.S., such as after receiving a visa or green card.
What is an “aggravated felony”?
This is a category of serious crimes under immigration law that includes offenses like drug trafficking, theft or violent crimes with a sentence of one year or more, and some fraud offenses. Even misdemeanors under state law may count as aggravated felonies for immigration purposes.
If I have a criminal conviction, can I still apply?
It depends on the conviction. Aggravated felonies disqualify you. Other convictions may be considered negatively but not necessarily disqualifying. Legal counsel is crucial in such cases.
Does a grant of cancellation of removal erase my criminal record?
No. The grant allows you to stay in the U.S. as an LPR, but it does not expunge or eliminate your criminal convictions.
What happens to my green card if cancellation of removal is granted?
If you’re an LPR and your application is approved, you retain your green card and lawful permanent resident status.
FAQs for Non-Lawful Permanent Residents (Non-LPRs)
Who qualifies for cancellation of removal as a non-permanent resident?
You may qualify if you:
How is “continuous physical presence” calculated?
You must have lived in the U.S. for at least 10 years without a break of 90 days or more or multiple absences totaling more than 180 days. Receipt of a Notice to Appear (NTA) stops the clock.
Can I count time in the U.S. after receiving a Notice to Appear (NTA)?
No. The issuance of the NTA cuts off your ability to accrue time toward the 10-year physical presence requirement.
What qualifies as “good moral character”?
You must not have committed certain crimes or immigration violations, and you must generally demonstrate honesty, reliability, and community responsibility. Evidence may include character references, employment history, and lack of criminal record.
What kind of hardship qualifies as “exceptional and extremely unusual”?
The hardship must be significantly more severe than what most families would face in a deportation scenario. Examples include:
Can hardship to the applicant be considered?
No. Only hardship to a qualifying relative (U.S. citizen or LPR spouse, child, or parent) can be considered.
Can DACA recipients apply for non-LPR cancellation of removal?
DACA recipients can apply if they meet all other eligibility criteria and are in removal proceedings. However, DACA time may not count toward physical presence if it was granted after a prior removal or illegal reentry.
If my child is a U.S. citizen, do I automatically qualify for cancellation of removal?
No. While having a U.S. citizen child is necessary to meet the hardship requirement, you still must prove the hardship is “exceptional and extremely unusual” and meet all other requirements.
Evidentiary and Procedural Issues
What types of evidence should I include with my application?
Can I get a work permit while my cancellation of removal case is pending?
If you apply for cancellation of removal and your proceedings are ongoing, you may be eligible for work authorization. You must request it formally and meet eligibility conditions.
How long does it take for the court to decide a cancellation of removal case?
It varies widely depending on court backlogs. Some cases take several months to years before a final decision is reached.
Can I appeal if the immigration judge denies my cancellation of removal application?
Yes. You can appeal to the Board of Immigration Appeals (BIA) within 30 days of the decision.
Can new evidence be introduced on appeal?
No. The BIA reviews the record created in immigration court. You cannot add new evidence unless you file a motion to reopen.
Can I file a motion to reopen my cancellation of removal case if it’s denied?
Yes, but you must generally do so within 90 days of the final order. The motion must be based on new, previously unavailable evidence.
What happens if the annual cap for non-LPR cancellation cases has already been reached?
Only 4,000 non-LPR cancellations may be granted per year. If you’re otherwise eligible but the cap is reached, the judge may “preterm” your case and schedule you for the next fiscal year’s allocation.
Other Less Common Questions
Can I apply for cancellation of removal if I have a final order of removal?
No. You must be currently in removal proceedings. However, if circumstances have changed, you may be able to file a motion to reopen proceedings and then request cancellation.
Is cancellation of removal available to TPS holders or those with temporary visas?
Yes, but only if they are in removal proceedings and meet the physical presence and hardship requirements. Simply having TPS or a visa does not make you ineligible.
Can someone with a reinstated removal order apply for cancellation?
Generally, no. Reinstated removal orders make you ineligible for most forms of relief, including cancellation.
Is there any relief available for individuals with prior immigration fraud or misrepresentation?
Possibly. However, misrepresentation may affect your ability to show good moral character or admissibility. You may need a waiver in conjunction with other relief.
Does receiving public benefits affect my cancellation of removal case?
It may be considered as part of your overall record but is not disqualifying in itself. Judges may assess it in the context of your ties to the U.S. and ability to support yourself.
Can my U.S. citizen spouse or child file for me instead of applying for cancellation of removal?
Not in court. Family petitions can support other types of relief (like adjustment of status), but cancellation is a defense you must pursue yourself while in proceedings.
|
Stat |
Details |
| 11.3 million | Undocumented immigrants in the U.S. |
| 7 million | Have lived in the U.S. for 10+ years |
| 3.5 million | Have U.S. citizen children |
| 4 million+ | Immigration court backlog |
| 4,000/year | Legal cap on cancellation of removal approvals |
As Trump’s enforcement efforts increase deportation actions exponentially, cancellation of removal will become a primary legal shield for millions of long-time residents with deep U.S. family ties.
Act early. Prepare thoroughly. Advocate strategically.
Deportation proceedings can be life-altering, but legal options exist. Cancellation of removal may be the lifeline you or a loved one needs.
Always consult with an immigration attorney to explore the best path forward. Timing, documentation, and legal strategy can make all the difference.
Find legal help:
When everything is on the line, experience and dedication matter. Here’s what sets us apart:
Let Herman Legal Group fight for you, protect your rights, and help you stay in the U.S. with your family and your future intact.
Contact Us Now to Schedule a Confidential Consultation
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More Resources
Practice Advisory (ILRC, IDP, NIPNLG): Avoiding the Stop-Time Rule
Supreme Court Decision: Barton v. Barr, 140 S. Ct. 1442 (2020)
On March 4, 2021, the US Supreme Court issued its decision in Pereida v. Wilkinson. The conservative Court bucked the Biden administration´s trend of liberalizing immigration law, by making it harder for undocumented immigrants convicted of minor criminal offenses to obtain relief from deportation proceedings.
Pereida was seeking “cancellation of removal” under US immigration law. Under cancellation of removal, a non-citizen, who is not a lawful permanent resident can seek the cancellation of any removal (deportation) proceedings against them and gain lawful permanent residence in the United States, if they meet certain conditions:
To obtain the cancellation of removal, nonpermanent residents must establish that they:
Essentially, cancellation of removal works a lot like an immigration amnesty, except that it is very difficult to obtain and it is awarded on a case-by-case basis. Ultimately, the decision is based on the discretion of the immigration court and is based on the totality of the circumstances.
If the court refuses an application for cancellation of removal, it is difficult to successfully appeal the decision. Nevertheless, appeals are sometimes granted.
Cancellation of removal is based on highly ambiguous legal terms such as “exceptional and extremely unusual hardship” and ”crime of moral turpitude.” In Pereida, the issue was whether a crime on Pereida´s record, “criminal impersonation” (a Nebraska state law crime) constituted a “crime of moral turpitude.”
A crime of moral turpitude means a crime that was committed with some sort of evil intent. Swindling someone out of their money, for example, might constitute a crime of moral turpitude, whereas driving on an expedited driver”s license might not be.
Pereida”s offense was to present a fake Social Security card in order to obtain employment. The crime was certainly minor if judged by the penalty imposed–a $100 fine and no jail time. The issue, however, was whether presenting a fake Social Security card constituted a “crime of moral turpitude.”
The ambiguity here lies in the fact that the Nebraska state law Pereida was convicted of includes several distinct offenses. Some of these offenses require the defendant to have an “intent to deceive* to be guilty, while other offenses that are also called criminal impersonation” do not require an intent to deceive.
Pereida’s criminal record did not indicate whether or not his conviction required a finding of an intent to deceive. This is critical because under US immigration law, a criminal offense that requires a finding that the defendant had an “intent to deceive” counts as a crime of moral turpitude, and would thereby result in a denial of Pereida’s application.
The Supreme Court ruled that the party seeking relief from deportation bears the burden of proving that they are eligible for that relief. Since Pereida’s criminal record did not indicate whether intent to deceive was a necessary element of the crime, there was no way for Pereida to meet this burden. Consequently, Pereida lost his appeal and his application for cancellation of removal was denied.
Because this case was decided by the highest court in the land, it sets a precedent for future cases that can only be overturned by the Supreme Court itself. Even the Supreme Court is unlikely to overturn its precedent, however, unless its composition changes significantly.
In the future, then, this case establishes a rule that the immigrant bears the burden of proving that the crime they were convicted of does not constitute a crime of moral turpitude. In many cases, especially with state law charges, this is likely to prove an impossible task.
The Court’s decision, however, can be effectively reversed without waiting for the Supreme Court to overturn its own precedent. Since the decision was based on the Supreme Court’s interpretation of a federal statute (the Immigration and Nationality Act), Congress can evade Pereida v. Wilkinson by simply changing the wording of the statute.
Until then, immigrants with criminal records are going to face a much more difficult time obtaining the cancellation of removal.
Client: Green Card Holder
Client’s Country of Origin: Scotland
Case Type: Criminal and Removal
Our client retained Attorney Frank Krajenke of Herman Legal Group because he was near facing removal for multiple criminal convictions. As a citizen of Scotland, our client obtained his green card through marriage with a US citizen.
Prior to consulting us, our client had been formally represented by a criminal defense attorney unfamiliar with immigration law. While a criminal lawyer may believe it is in one’s best interest to plead guilty to a crime in order to lessen the charge or sentence, when representing an immigrant, the counsel must inform his client of possible removal consequences when pleading.
Unaware of the repercussions, our client pleads guilty to charges that arose from a physical encounter with law enforcement, multiple of which were felonious charges that would put him at risk of deportation.
Upon retaining Attorney Krajenke, our client was able to contest his convictions on the grounds of not being informed by prior counsel of potential immigration consequences when entering a guilty plea. In addition, counsel obtained medical reports to contest our client’s neurological conditions at the time of the encounter.
Even as a lawful permanent resident, our client was not only subject to surrender his green card, but he was also at high risk of removal. After the much-sought effort, Attorney Krajenke dismissed or amended all original charges and ultimately lessened the plea to a low-level charge without grounds for removal.
Furthermore, with the assistance of skilled counsel, our client maintained his US employment which was subject to termination due to original criminal charges, and maintained lawful permanent resident status.
Acancellation of removal (or suspension of deportation) is a type of “waiver.” It allows certain immigrants that are in deportation or removal proceedings to permanently reside if they can establish strong ties in the United States and meet some other requirements. If you have been charged due to an immigration offense, this is the way to stop the deportation process.
The Violence Against Women Act (“VAWA”) created a VAWA Cancellation of Removal for battered immigrants. It protects those who have been abused by their U.S. sponsor. Note that not all battered immigrant spouses can apply for it, because first, the immigration authorities must charge you with an immigration violation. It is usually an unlawful presence in the U.S. or overstaying a visa. If this happens, the immigration authorities will order you to appear in front of a judge.
If a U.S. petitioner abused you, then first, you must apply for VAWA and prove it.
Here are eligibility requirements to meet before determining if you can apply for VAWA cancellation or removal:
If you consider that you meet the above requirements that you shall prove those and provide relevant evidence, including proofs that:
You don’t have to be currently married to the abuser or prove a good faith marriage to file for VAWA cancellation. But, if that evidence is available to you, you should prepare them to make your application more robust.
Let’s say there are four steps on your way to the cancellation of removal:
If you are undocumented, the Department of Homeland Security may issue a charging document called a “Notice to Appear.” It will state that you are not a U.S citizen or national and charge you with certain violations of immigration law.
The burden to establish your inadmissibility or deportability has the DHS. So, at the hearing you will have to:
At this point, you should think of engaging an experienced lawyer to help you present your case for the best outcomes. To prove your case before the court, you will have to gather the same documents as when you file the VAWA petition.
Those are documents that will prove:
Besides listed evidence, ensure that you include any other that you have or can make available to support your statements and requirements that you should meet.
Cancellation of removal is a one-time only form of relief granted under court discretion. There are several factors the court will take into consideration when granting this relief. The requirements an immigrant must show differ for lawful permanent residents (LPRs), such as green card holders, and non-LPRs.
Permanent Resident Card
Removal and Deportation
Absences from the U.S. for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days lead to a finding of failure to maintain continuous physical presence.
Stop-Time Rule
The Immigration and Nationality Act §240 provides that an immigrant’s continuous residence or continuous physical presence ends when:
(1) the immigrant has committed an offense referred to in section 212 that renders him inadmissible to the US under section 212 or or removable from the US under section 237 or 237 of the Act; or
(2) in the case of applying for cancellation of removal, when the immigrant is served with a Notice to Appear. Whichever is earliest.
In June 2018, the US Supreme Court issued a decision in Pereira v. Sessions which held that the plain language of the statute requires the Notice to Appear to specify the date, time, and location that the hearing will take place. This is in light of many immigrants being served notices which stated the date of their hearing is “to be determined,” resulting in their lack of awareness of suspended continuous presence. Furthermore, if you have been served a Notice to Appear for removal proceedings, check to see if your hearing has been assigned a specified time and place. Otherwise, failure to specify on the matter does not trigger the stop-time rule.
Deportation
Cases in which a noncitizen must display exceptional and extremely unusual hardship are tough cases to win as they are analyzed under a very restrictive standard. The hardship must not be to you, but to an immediate family member who is a US citizen or US permanent resident. Note, mere economic hardship will not qualify under the standard. The court will analyze several factors such as:
Relief for extremely unusual hardship is not often granted. Consult with an immigration lawyer to analyze whether your case may be successful and granted relief under the circumstances.
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