How to Win Your Deportation Case With Cancellation of Removal

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.

What Are Removal Proceedings?

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:

• You are undocumented
• You overstayed a visa
• You committed certain crimes
• You applied for an immigration benefit and were denied

In rare cases, even naturalized citizens can face removal if the government claims fraud in their application.

Learn more: EOIR Overview – U.S. DOJ

How the Removal Process Works

1. Notice to Appear (NTA): This document from ICE starts the process and lists the reasons you’re considered deportable.
2. Master Calendar Hearing: A brief first court appearance (usually 15 minutes) to schedule future hearings.
3. Individual Hearing: You present your evidence and legal arguments for staying in the U.S.
4. Decision: If the judge issues a removal order, you may appeal to the Board of Immigration Appeals (BIA) or federal courts.

Warning: If you miss a hearing, the judge can issue a removal order in absentia, meaning you’ll be deported without being present.

Key Facts:

Deportation orders are issued by Immigration Judges.

• Non-citizens removed from the U.S. may be barred from returning for 5, 10, or even 20 years—or permanently.
• Only U.S. citizens are fully protected from removal.

If you or a loved one is facing deportation, consult a qualified immigration attorney immediately.

What Can Trigger Deportation Proceedings?

Under the Immigration and Nationality Act (INA) §237, immigrants can be placed in removal proceedings for:

• Visa overstays or status violations, such as entering the U.S. without inspection
• Criminal convictions
• Smuggling or trafficking
• Fraudulent marriage to gain immigration benefits
• Document fraud or misrepresentation
• Firearm offenses
• Drug crimes
• Becoming a public charge (rare)
• Engaging in national security threats or terrorism

Everyday actions can also cause issues, such as:

• Registering to vote: Even by mistake, this can trigger expedited removal.
• Failing to update your address with USCIS: Use this online form to stay compliant.

What Is Relief From Removal?

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.

What Is Cancellation of Removal?

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:

• For Green Card Holders (Lawful Permanent Residents/LPR)
• For Non-Green Card Holders (Undocumented or Visa Overstays/Non-LPR)
• For Survivors of Abuse (VAWA)

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.

 Why Cancellation of Removal Is More Urgent Than Ever

A Rapid Shift in Immigration Policy Is Here

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:

• ICE agents bolstered by National Guard and military personnel
• State and local police
• A new network of large-scale detention facilities in Texas

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.

Key Statistics That Make This Urgent

• 3.5 million undocumented immigrants live with at least one U.S. citizen child under 18
• 2 million are married to U.S. citizens or LPRs
• 1.5 million have legal protections through TPS or DACA, which the Trump team has vowed to eliminate
• Each immigration judge currently handles an average of 4,500 cases
• More than 4 million total cases are pending in immigration court
• 1.3 million new cases were added just in 2024

How Many Applications Are Granted Each Year?

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.

 What Judges Consider in These Cases

Cancellation of removal is not automatic—even if you meet the legal requirements. Immigration judges have broad discretion and weigh factors like:

• Length of time in the U.S.
• Ties to family and community
• Involvement in community service or religious organizations
• Employment history and tax contributions
• Evidence of rehabilitation if you have a past record

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.

 

1. Cancellation of Removal for Lawful Permanent Residents

T To qualify under INA § 240A(a), you must meet all of the following:

• Lawfully obtained green card
• At least 5 years as a lawful permanent resident
• At least 7 years of continuous residence in the U.S. after being admitted
• No conviction of an aggravated felony (this includes serious crimes like drug trafficking, sexual abuse of a minor, or murder)
• No past cancellation grants
• Discretionary Relief: The judge must find that you deserve to stay in the U.S. based on equities like family ties, rehabilitation, and hardship.

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.

2. Cancellation of Removal for Nonpermanent Residents

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:

• A continuous period of 10 years of physical presence in the U.S.
• Good moral character for those 10 years
• No disqualifying criminal convictions
• Exceptional and extremely unusual hardship to a U.S. citizen or LPR spouse, child, or parent

Under INA § 240A(c), certain individuals are not eligible for this relief. You cannot apply if you:

• Previously received:
• Cancellation of removal
• Suspension of deportation
• INA § 212(c) relief (for LPRs)
• Have persecuted others or are deportable under anti-terrorism provisions
• Entered as a crew member after June 30, 1964
• Entered on a J-1 visa subject to a two-year home residency requirement, unless waived

Discretion: Final Judge’s Decision

Even if all requirements are met, immigration judges have full discretion to approve or deny the application.

Important Warning

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:

DOJ Flyer

ICE Guide

3. Special Rule (VAWA) Cancellation of Removal

Also known as 3-Year Cancellation, this version is for survivors of domestic abuse, including:

• Spouses or children of abusive U.S. citizens or LPRs

Eligibility Requirements:

• You (or your child) were subject to battery or extreme cruelty
• You lived with the abuser
• 3 years of continuous physical presence in the U.S.
• Good moral character during that time
• Not inadmissible or deportable for serious crimes
• You or your child would suffer extreme hardship if deported
• You are not subject to any grounds of inadmissibilily

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.

How to Apply for Cancellation of Removal

The cancellation process has two stages in immigration court:

Stage 1: Removal Determination

• The judge determines whether you’re deportable
• You can admit or contest the charges

Stage 2: Relief Application

• If eligible, you tell the court you’re applying for cancellation
• You attend a merits hearing, where you present evidence and testimony
• The judge decides whether to approve your request

Application Process: What Forms and Evidence You’ll Need

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.

Understanding Continuous Physical Presence for Non-LPR

For non-LPRs, 10 years of continuous physical presence is required.

How the “Stop-Time Rule” Works

The 10-year countdown stops when:

1. The immigrant is served a Notice to Appear (NTA), or
2. The immigrant commits a removable offense

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.

Proving 10 Years of Continuous Presence

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:

• Rent or mortgage records
• Utility bills
• Pay stubs and tax returns
• Medical records
• School records for your children
• Affidavits from community members

Note: Brief departures (under 90 days at a time, and less than 180 days total) may not break continuous presence.

 Exceptional and Extremely Unusual Hardship for Non LPR

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:

• Age, health, and special needs of the qualifying relative
• Educational, medical, and financial conditions in the home country
• The qualifying relative’s length of U.S. residence and community ties
• The total effect of all hardship factors combined

Who Must Experience the Hardship?

Only a qualifying relative:

• U.S. citizen or LPR spouse
• U.S. citizen or LPR child (under 21, unmarried)
• U.S. citizen or LPR parent

What Counts as “Exceptional and Extremely Unusual”?

Standard is very high—ordinary hardship is not enough.

Relevant Factors:

• Child’s or spouse’s serious illness
• Educational or developmental issues
• Lack of medical care in home country
• Family separation with no support system abroad
• Serious medical conditions with no access to treatment abroad
• Educational or developmental needs of a child
• Language barriers and lack of support in the home country
• Emotional and psychological impact on family

 

Hardship examples that may qualify:

• A child with a serious medical condition who can’t get treatment abroad
• A U.S. citizen spouse with severe mental health challenges
• Lack of family, safety, education, or healthcare in the home country

 

Real-Life Example: When Cancellation Works

In Matter of Recinas, a single mother of six U.S. citizen children won cancellation. Her case showed:

• Lack of family support in her home country
• Her children’s inability to adapt abroad
• Her sole role as provider and caretaker

This case set an important precedent and shows how thorough documentation of hardship can

Creative Legal Strategies That Worked

1. Medical Condition – Peanut Allergy

A child’s life-threatening peanut allergy was key in a successful case. The judge was convinced that:

• EpiPens were unavailable or unreliable in the home country
• Schools didn’t understand or accommodate peanut allergies
• Deportation could put the child’s life in danger

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:

• Her teenage daughter (a qualifying relative) would be forced to care for her brother alone
• That responsibility placed exceptional emotional and developmental pressure on the daughter

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)

What is Good Moral Character (GMC) for Non-LPR?

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.

Criminal Bars: Aggravated Felonies & Crimes Involving Moral Turpitude for Non-LPR

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.

What Are Aggravated Felonies?

Aggravated felonies are bars to all cancellation cases. Defined broadly in INA §101(a)(43). Includes:

• Murder, rape
• Drug trafficking
• Money laundering
• Theft/burglary (with 1+ year sentence)
• Child pornography
• Alien smuggling
• Fraud ($10,000+ loss)

Crimes Involving Moral Turpitude (CIMT)

Vague but includes crimes involving:

• Fraud
• Theft
• Assault with intent
• Serious harm or dishonesty

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:

• Crimes involving moral turpitude (CIMTs)
• Drug crimes (except minor marijuana possession)
• Domestic violence, stalking, or child abuse
• Aggravated felonies
• Prostitution-related offenses
• Firearms crimes
• High-speed flight from immigration checkpoint
• Espionage, terrorism, or false claim to U.S. citizenship

Narrow Exception: One Petty CIMT

A single CIMT conviction may not bar eligibility if:

• Max sentence possible < 1 year
• Actual sentence ≤ 6 months
• It’s the only CIMT

Example: Harry qualifies; Carrie doesn’t—Carrie’s theft statute carries a max sentence of one year.

Factors that Hurt GMC

• Habitual drunk driving
• Criminal convictions (180+ days sentence)
• False testimony or fraud
• Multiple gambling convictions
• Involvement in genocide or torture
• Are involved in prostitution, gambling, or smuggling
• Even if you’re not automatically barred, the judge may weigh negative factors:
• Failing to pay taxes
• Past arrests (even without jail time)
• Substance abuse issues
• Theft and burglary
• Drug possession (excluding first-time marijuana possession under 30g)
• Assault or domestic violence

Judges will also weigh positive factors, such as:

• Community service
• Family responsibility
• Rehabilitation
• Strong employment history and tax filings

• Rehabilitation (e.g., AA attendance, therapy)

Unlike physical presence, the 10-year good moral character clock continues until your final hearing.

Even dismissed or old convictions may count. You should:

• Obtain all court records and police reports
• Consult an immigration attorney to assess their impact

Eligibility Requirements Overview

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”

Disqualifying Criminal Offenses for Non-LPR

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.

Understanding Continuous Physical Presence/ “Stop-Time” Rule for LPR

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.

Key Takeaway from Barton v. Barr (2020)

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)

How Do Crimes Affect Eligibility for LPR?

Criminal convictions, especially aggravated felonies, can bar eligibility. However:

• Aggravated felonies permanently disqualify someone from LPR cancellation.
• If the offense isn’t drug-related, INA § 212(h) may offer a waiver.
• Old convictions (pre-1997) may be waived under INA § 212(c) if eligible.

Not all deportable offenses bar cancellation. Key is whether they also make you inadmissible under § 212(a)(2). More on this in Section 5.

Common Criminal Offenses That May Trigger the Stop-Time Rule

• Crimes Involving Moral Turpitude (CIMT)
• Controlled Substance Violations
• Firearm Offenses
• Domestic Violence-Related Convictions

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.

Understanding the 5-Year and 7-Year Rules

• 5-Year LPR Requirement:
  • You must have had LPR status for 5 years, including any time as a conditional resident.
  • Time continues during your immigration proceedings until the final decision.
• 7-Year Continuous Residence:
  • Begins when you are admitted in any status (e.g., visitor, student, LPR).
  • Ends when:
    • You commit an offense listed in INA § 212(a)(2) or
    • You are served with a valid Notice to Appear (NTA) with time, date, and place listed.

Stop-Time Rule and Barton v. Barr Explained

The “stop-time” rule ends your 7-year residency clock in two situations:

• When you are served a valid NTA (must include date/place/time).
• When you commit an offense listed in INA § 212(a)(2) that makes you inadmissible or deportable.

In Barton v. Barr (2020), the Supreme Court ruled:

• Even if an LPR is not being admitted into the U.S., they can still be “rendered inadmissible” under INA § 212(a)(2).

Examples of Offenses That Stop the Clock:

• Conviction of a crime involving moral turpitude (CIMT) not covered by petty offense exception.
• Controlled substance offense (including marijuana under federal law).
• Conviction of two or more crimes with a combined sentence of 5+ years.

Examples That Do NOT Stop the Clock:

• CIMT that qualifies for petty offense or youthful offender exception.
• Offenses listed under INA § 237(a) only (e.g., domestic violence) if not referred to in § 212(a)(2).
• Admitted use of marijuana in a state where legal, unless it meets federal criteria for conviction/admission.

For more, see: Practice Advisory on Barton v. Barr

Legal Strategies: Post-Conviction Relief & Waivers

If your conviction is blocking relief:

• Post-conviction relief: Try vacating the conviction for legal error.
• 212(h) waiver: Offers relief from certain inadmissibility grounds.
• 212(c) waiver: Available for pre-1997 convictions.

Explore: Post-Conviction Options for Immigrants (ILRC Guide)

Discretionary Factors: How Judges Decide

Even if you meet all criteria, a judge can still deny relief. They consider:

• Family ties in the U.S.
• Length of residence.
• Employment and community service.
• Rehabilitation efforts.
• Criminal history and remorse.

Tip: Submitting letters of support, therapy records, and proof of rehabilitation can help your case.

After Relief: Can Past Crimes Still Harm You?

Yes, in some cases:

• If a new crime combines with an old conviction, you could face deportability again (e.g., 2 CIMTs).
• The old conviction might still block adjustment of status unless you file another waiver.

Alternative Relief: INA § 212(h) and § 212(c)

• 212(h): Waives inadmissibility for CIMTs, single drug offenses (not trafficking), and more.
• 212(c): Still available for pre-1997 convictions if you were eligible as of April 1, 1997.

They cannot be combined with each other or with LPR cancellation. Learn more: ILRC Guide to INA § 212(h)

Strategies After Barton v. Barr

Despite the harshness of the Barton decision, there are still strategies that may help:

1. Challenge Whether the Offense Stops Time

• Argue that the offense does not trigger inadmissibility under INA § 212.
• Point out that timing matters—if the offense occurred after you reached 7 years, it doesn’t stop time.

2. Push Back on the NTA

• Courts have ruled that defective NTAs (e.g., missing time/date info) may not trigger stop-time.
• See Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

Resource: Practice Advisory – Avoiding the Stop-Time Rule after Barton v. Barr (ILRC)

Step-by-Step Approach to Evaluating Eligibility

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.)?

Discretionary Factors Immigration Judges Consider

Even if you’re eligible, the judge can still deny your request. They will consider:

• Family ties and hardship to U.S. relatives
• Length of time in the U.S.
• Employment and community contributions
• Rehabilitation efforts
• Moral character and remorse
• Evidence of danger to society

VAWA CANCELLATION OF REMOVAL

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.

Eligibility Criteria:

To qualify for VAWA Cancellation of Removal, an applicant must meet the following requirements:

1. Qualifying Relationship and Abuse:
   • The applicant must have been battered or subjected to extreme cruelty by:
     • A spouse or former spouse who is a U.S. citizen or LPR;
     • A parent who is a U.S. citizen or LPR; or
     • The applicant is the non-abusive parent of a child who has been battered or subjected to extreme cruelty by the other parent who is a U.S. citizen or LPR.
2. Continuous Physical Presence:
   • The applicant must have been continuously physically present in the United States for at least three years immediately preceding the application. Notably, the issuance of a Notice to Appear does not stop this time period, but committing certain crimes does.
3. Good Moral Character:
   • The applicant must demonstrate good moral character during the three-year period immediately preceding the application. Certain criminal convictions or actions may adversely affect this determination.
4. Extreme Hardship:
   • The applicant must establish that their removal would result in extreme hardship to themselves, their child, or their parent. Factors considered include the nature and extent of physical or psychological consequences of abuse, the impact on health and well-being, and other personal circumstances.
5. Admissibility:
   • The applicant must not be inadmissible under certain sections of the Immigration and Nationality Act (INA), such as those related to criminal convictions, security grounds, or fraud. However, some grounds of inadmissibility may be waived if connected to the abuse suffered.

Application Process:

• Initiation of Removal Proceedings:
  • VAWA Cancellation of Removal is applied for during removal (deportation) proceedings before an immigration judge. If the applicant is not already in such proceedings, it may be possible to be placed in removal proceedings to apply for this relief. However, this strategy carries significant risks and should only be considered under the guidance of an experienced immigration attorney.
• Submission of Form EOIR-42B:
  • The applicant must complete and submit Form EOIR-42B, “Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents,” along with supporting documentation to the immigration court.
• Evidentiary Requirements:
  • Evidence supporting the application may include:
    • Police reports, medical records, or court documents demonstrating the abuse.
    • Affidavits from witnesses or professionals attesting to the abuse and its impact.
    • Documentation proving continuous physical presence, such as employment records, utility bills, or school records.
    • Proof of good moral character, which may include letters of recommendation, community service records, and absence of a criminal record.
• Immigration Judge’s Discretion:
  • The immigration judge has the discretion to grant or deny the application based on the evidence presented and the applicant’s overall circumstances.

Important Considerations:

• Legal Representation:
  • Given the complexity of immigration law and the high stakes involved, it is crucial for applicants to seek competent legal representation. An experienced immigration attorney can provide guidance tailored to the individual’s situation and help navigate the application process effectively.
• Comparison with Other Forms of Relief:
  • VAWA Cancellation of Removal differs from the VAWA self-petitioning process. While both are forms of relief for survivors of abuse, they have distinct eligibility requirements and application procedures. Understanding these differences is essential to determine the most appropriate form of relief.
• Impact of Criminal Convictions:
  • Certain criminal convictions can disqualify an applicant from VAWA Cancellation of Removal. However, if the criminal conduct was connected to the abuse suffered, it might be possible to obtain a waiver.

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.

Work Authorization While Awaiting a Decision

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.

How Long Does the Process Take?

For non-detained individuals:

• Average wait time: 3 to 5 years
• Final hearing often takes place 18 to 30 months after your initial appearance
• Green card approval may take 12 to 18 months after the judge grants relief (due to annual cap of 4,000 approvals)

If detained:

• The process may move faster, but it is more difficult to win from detention

Public Charge Considerations

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

Beware of Scams: No One Can Apply for Cancellation Without Being in Court

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.

Preparing While You’re Not in Removal Proceedings

If you aren’t currently in court, you can still prepare:

• Save documentation of your presence and ties in the U.S.
• Keep records of your children’s medical or educational needs
• Address any criminal history (get dispositions, seek expungements)
• Demonstrate rehabilitation (attend support programs, therapy)
• File taxes using a valid ITIN and never claim false dependents

Other Forms of Relief from Deportation

If cancellation of removal isn’t available, there may still be hope.

Main Types of Relief From Removal

Apply for Asylum

If you fear persecution in your home country, you can apply for asylum as a defense to deportation.

You must show:

• A well-founded fear of persecution due to your race, religion, nationality, political opinion, or membership in a particular social group
• Persecution by the government or a group the government can’t control
• You applied within one year of entering the U.S. (unless you qualify for an exception)

Asylum can lead to a green card and work authorization.

USCIS Asylum Process Guide

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

Adjustment of status allows you to apply for a green card from within the U.S. even during removal proceedings.

Eligibility

• You have an approved petition from a qualifying relative or employer
• You were inspected or paroled into the U.S.
• You’re admissible (or have a waiver for any inadmissibility)

Special exceptions exist for applicants with family petitions filed before April 30, 2001, under 245(i).

Check your visa category and availability

Voluntary Departure

Voluntary Departure allows you to leave the U.S. on your own before being forcibly deported.

Benefits

• Avoids a formal removal order on your record
• May reduce reentry bans
• No criminal penalties if you return illegally later (unlike deportation)

Drawbacks

• You must pay your own travel costs
• You waive your right to appeal
• You must leave within a set timeframe

Administrative Appeal

If you lose your case, you have the right to appeal to the BIA within 30 days.

Appeals can result in:

• Reversal of the judge’s decision
• A new hearing
• Referral to the Attorney General for a final decision

How to Appeal – EOIR BIA Guide

File a Motion To Reopen or Reconsider

These motions allow you to challenge a removal order after the fact.

• Motion to Reopen: Introduce new evidence that wasn’t available earlier (file within 90 days)
• Motion to Reconsider: Correct errors in law or fact from the prior decision (file within 30 days)

Stay of Removal

A stay of removal temporarily pauses deportation while an appeal or motion is pending.

• Automatic stay if you appeal within 30 days
• Discretionary stay if you request one while waiting on a motion or petition for review

Visual Comparison: Types of Relief from Removal

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

Why You Should Work with an Immigration Lawyer

Cancellation of removal cases are complex, with high stakes and strict legal standards. A skilled immigration attorney can help you:

• Prove eligibility and gather supporting documents
• Develop legal arguments
• Navigate complex court procedures
• Explore alternative relief (asylum, voluntary departure, adjustment of status)

Find legal help:

• Immigration Advocates Network
• American Immigration Lawyers Association (AILA)

In Summary: What You Need to Know

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

What Evidence Do You Need?

Winning a cancellation of removal case requires clear, detailed documentation. You’ll need to prove every element of your eligibility. Here’s what helps:

Proof of Continuous Residence

• Lease agreements, utility bills, pay stubs
• School records or report cards for children
• Medical or dental records showing long-term presence in the U.S.

Good Moral Character

• Criminal background checks (FBI and local police)
• Character letters from employers, churches, teachers, or community leaders
• Evidence of tax filings

Exceptional Hardship to Family Members

• Medical diagnoses and treatment records for family members
• Psychological evaluations from licensed professionals
• Financial records showing loss of income or housing if you’re deported
• Educational or developmental reports for children

Ties to the U.S.

• Evidence of community involvement (e.g., church, school, work)
• Birth certificates of U.S. citizen children
• Proof of paying taxes and owning property

 

Common Challenges in Cancellation of Removal Cases

1. Proving “Exceptional and Extremely Unusual Hardship”

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:

• A child with serious medical or psychological issues
• A spouse who depends on you for caregiving
• A U.S. citizen parent with severe health problems

2. Disqualifying Criminal Convictions

Some crimes automatically disqualify applicants, including:

• Aggravated felonies
• Drug trafficking
• Domestic violence
• Fraud or identity theft

3. Limited Number of Approvals

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

What Happens If Your Case Is Approved?

If the immigration judge approves your cancellation of removal application:

• LPRs keep their green card and can remain in the U.S.
• Non-permanent residents will receive a green card and become lawful permanent residents

If Denied:

• You may be ordered deported
• You might still be eligible to appeal to the Board of Immigration Appeals (BIA)
• You can also file a motion to reopen if new evidence arises

Need legal help with your appeal?
Find an Accredited Immigration Lawyer

What You Can Do Right Now

1. Learn Your Rights

If ICE knocks at your door or detains you:

• You have the right to remain silent
• You do not have to let them in without a judge-signed warrant
• Do not sign any documents without speaking to an attorney
• You have the right to a hearing before an immigration judge
• Have legal representation (at your own expense)

2. Screen for Eligibility

Attorneys and DOJ-accredited reps should:

• Review all current cases
• Identify clients who meet non-LPR cancellation criteria
• Prioritize cases where qualifying relatives are under 21, to avoid “aging out”

3. Monitor the Annual Cap

• Only 4,000 approvals are allowed per year
• Even approved cases may be delayed by the cap
• The Board of Immigration Appeals (BIA) requires the qualifying child to be under 21 at the time of final approval

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)

Frequently Asked Questions (FAQs) about Cancellation of Removal in immigration court.

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:

• Have been an LPR for at least 5 years
• Have continuously resided in the U.S. for at least 7 years after lawful admission
• Have not been convicted of an aggravated felony
• Deserve a favorable exercise of discretion by the judge

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:

• Have lived continuously in the U.S. for at least 10 years
• Have had good moral character during that time
• Have not been convicted of disqualifying crimes
• Can demonstrate that your removal would cause “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child

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:

• A U.S. citizen child with a serious medical condition
• A spouse with a disability who relies on the applicant for care
• A parent who depends on the applicant for daily survival

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?

• Proof of residence (lease agreements, utility bills, tax returns)
• Character references and community letters
• Medical records or psychological evaluations of family members
• School records and evidence of community involvement
• Proof of employment and taxes paid

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.

 

 

In Summary: Why This Matters Now More Than Ever

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.

 

 

Final Thoughts: Act Now and Get Help

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:

• FindLegalHelp.org (ABA)
• Immigration Advocates Network Legal Directory

Why Choose Herman Legal Group for Your Cancellation of Removal Case?

When everything is on the line, experience and dedication matter. Here’s what sets us apart:

• Over 30 Years of Immigration Law Experience
  We’ve been helping immigrants stay in the U.S. and reunite with their families since 1995.
• Led by Renowned Immigration Attorney Richard Herman
  A nationally recognized immigration lawyer, author, and advocate featured in major news outlets like CNN, NPR, and The New York Times.
• Proven Track Record in Deportation Defense
  We’ve successfully represented clients in hundreds of complex removal and cancellation of removal cases—both LPR and non-LPR.
• Multilingual, Multicultural Team
  Our attorneys and staff speak many languages and understand the cultural and emotional aspects of immigration struggles.
• Personalized Legal Strategies
  We take the time to understand your story, identify the best possible relief options, and tailor a legal defense that gives you the highest chance of success.
• Nationwide Representation
  No matter where you are in the U.S., we can help. We represent clients in immigration courts across the country, in-person and remotely.
• Clear, Compassionate Communication
  We make complex legal issues easy to understand and guide you through every step with patience and care.
• Ethical and Honest Advice
  We won’t waste your time or money—we tell you the truth about your case, your options, and your chances.
• Full-Service Immigration Support
  Whether you need cancellation of removal, adjustment of status, asylum defense, or family-based relief, we’re ready to help.

Facing deportation is terrifying—but you don’t have to face it alone.

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
Offices in Cleveland, Columbus, and Nationwide via Zoom

Herman Legal Group: Trusted. Respected. Relentless in your defense.

 

 

 

More Resources

• EOIR Practice Manual – Immigration Court
• TRAC Immigration Reports
• Immigrant Legal Resource Center – Removal Defense

Practice Advisory (ILRC, IDP, NIPNLG): Avoiding the Stop-Time Rule

Supreme Court Decision: Barton v. Barr, 140 S. Ct. 1442 (2020)

---

• ILRC LPR Cancellation Toolkit
• Immigrant Defense Project
• National Immigration Project
• Legal Aid: Directory of Providers
• AILA Legal Practice Center

• Find Immigration Legal Help

---

Asylum When Facing Deportation

Applying for asylum becomes a bit more complex when you are already facing deportation proceedings. Asylum may be your best removal defense when immigration authorities are trying to eject you from the US but you fear returning to your home country.

The grounds for receiving asylum goes beyond just ordinary fear of returning to your country—you must establish unwillingness to return due to having faced persecution in the past or well-founded fear of being persecuted upon return on account of race, religion, nationality, political opinion, or membership in a particular social group.

Asylum applicants bear the burden of proof in establishing that they meet this definition of a “refugee” under the Immigration Nationality Act. Applicants must also show that it is more likely than not that they will face persecution based on the above grounds if they are deported.

If you are already facing removal proceedings, your application for asylum should be brought straight to the immigration judge upon your court hearing. Remember, this is a complex process so retain an immigration lawyer to assist in your asylum defense.

Depending on the crime committed, your immigration lawyer might seek to obtain withholding of removal for your case if you are barred from obtaining asylum. However, the standard for granting withholding of removal are even greater than asylum as you must prove the probability of death or persecution if deported.

Immigration – Asylum

Upon your hearing, you will have the opportunity to tell the judge your story on why you fear returning to your home country. Your lawyer will ask you question to guide you along the way.

Your memory of past events and traumatic situations will become crucial to your asylum defense. It is likely that the immigration judge and the opposing counsel will question you too in order to gain as much information as possible. Remember to stay calm and give honest answers as any inconsistent responses may negatively affect the outcome of your case.

While asylum hearings may be temporarily uncomfortable, this is your chance to avoid returning to permanent distress. Tell the judge your complete story, and by the end of the hearing, you will receive his decision on whether your asylum application has been granted or denied.

Upon approval, you will be mailed additional forms stating your asylee status and right to maintain within the country.

How to Avoid Deportation Based on a Criminal Conviction?

Undocumented immigrants are subject to various legal consequences if they are caught violating immigration laws or participating in criminal acts. The standard of abiding by the law is much higher for people who are not US permanent residents, as they may face the consequence of being deported, or removed, by the US federal government to their home country.

If you are an undocumented immigrant or a foreign national, facing the process of removal may be fearsome and may cause you much worry. However, there are many steps you can take to avoid deportation when charged with a criminal conviction.

What Is a Conviction?

Found Guilty of a Crime

Under immigration law, a “conviction” has a much broader statutory definition than its customary meaning. See US Citizenship and Immigration Services Policy Manual. A conviction for immigration purposes goes beyond the court finding you guilty of a crime—Here, if you have admitted guilt in any of the records when facing a criminal charge, you are found to have a conviction. This applies to both misdemeanor and felony offenses.

Think of the following:

• Has a judge or jury found me guilty of a crime?
• Has a judge imposed a sentence on me for a crime?
• Did I admit to the guilt of the crime on the record? (depositions, interrogatories, etc.)
• Did I admit to facts that sufficiently support a judge’s finding of guilt for a crime?
• Did I enter a guilty plea for a crime?
• Have I ever expunged a crime from my record?

If you answered “YES” to any of the foregoing questions, you have a conviction on your record and, depending on the offense, may be subject to deportation. As all cases vary, it is not always clear whether the outcome resulted in a conviction.

Consult with an immigration attorney on whether you have convictions on your record that have grounds for deportation. For more guidance on convictions and expungement records, click here.

What Is Deportation/Removal Proceedings?

A man is detained by Border Patrol

Deportation is the formal act of removing an undocumented immigrant or foreign national from the US and returning the individual to his/her last country of residence. The deportation procedure is often initiated by immigration authorities known as Immigration and Customs Enforcement, or ICE. Otherwise, general immigration matters are also addressed by US Citizenship and Immigration Services (USCIS).

Any immigrant, including green card holders, who has not become a US citizen is subject to removal proceedings if found violating immigration laws or participating in criminal conduct.

If you have been issued a Notice to Appear, you have been assigned a hearing in immigration court. An immigration judge will hear your case and consider all evidence before providing a decision on whether to issue an order of removal or allow you to stay in the US. Consult with an immigration lawyer to evaluate the best method to win your case and remain in the US.

Grounds for Removal

According to the Immigration and Nationality Act (INA) §237, if any of the following applies to you, you are deportable. Seek immigration counsel immediately.

Aliens Subject to Removal Proceedings

• Conviction of a crime of moral turpitude committed within 5 years after date admitted to the US
• 2 or more convictions of crimes of moral turpitude, not arising out of a single scheme
• Conviction of a crime for which a sentence of 1 year or more of incarceration may be imposed
• Conviction of an aggravated felony at any time after admitted to the US
• Convictions of crimes of domestic violence/Violators of protection orders
• Drug abusers/trafficking

See INA §237 (8 USC §1227) for the full statute of deportable aliens.

Crimes Subject to Deportation

Weapon – Crime – Deportation

Undocumented immigrants with convictions on their record are not necessarily guaranteed to be deported. The federal government must have grounds to begin the removal process of a foreign national. For instance, the severity of the offense committed is a substantial factor on whether the individual has the possibility to avoid being removed from the country. However, there are certain crimes that are very probable to lead to deportation, referred to as “crimes of moral turpitude.”

The definition of crimes of moral turpitude is not black and white—these crimes stem from long precedent but are also ever-evolving with time. The state in which the crime was committed may be a substantial factor, too. According to the INA, crimes of moral turpitude generally involve the element of purpose or intent to harm persons or things. INA §212(A)(2). Obtain a lawyer to research the particular crime you are convicted of in order to assess whether you are at higher risk of facing deportation proceedings.

Committed Offenses At High Risk of Deportation

• Crimes of Domestic Violence
• Theft-related offense
• Drug-related offense
• Firearms-related offense
• Fraud
• Aggravated felonies

Protect Yourself

Be Good

In order to avoid any risk of removal, your number one priority is to protect yourself! Do this in two ways: (1) Be good; and (2) Get your citizenship.

Be good!

The federal government needs to show grounds for deportation of an individual. Obey immigration laws and avoid any criminal conduct. If you are facing any criminal charge, the court must identify whether you are a US citizen or non-citizen. If you are an undocumented immigrant or a foreign national with a criminal conviction, your case will be brought to the attention of immigration authorities and the Department of Homeland Security will commence the removal process.

Get your citizenship

It is critical to naturalize as soon as you can. Once you are granted your US citizenship, the stress and worry of removal will cease. However, there are many requirements you must meet in order to become a US citizen. General requirements include: demonstrating your physical presence and continuous residence within the US for a required period of time and displaying good moral character for a required period of time.

When applying for citizenship, you will also be required to give your criminal offense history. Keep in mind, there are certain factors that may prevent you from being eligible for naturalization. If you have committed an aggravated felony, you will be denied citizenship.

In addition, providing false information to immigration authorities may lead to your denial of citizenship, so be sure to provide true and accurate information on all forms. Click here to see if you are eligible to apply for naturalization and to begin your application!

Green Card or Visa Holders Charged with Criminal Offense

Gavel

Cardholders who have been charged with a criminal offense should immediately consult with an immigration lawyer. Cardholders still face immigration consequences when found violating immigration or criminal law.

Remember, if you are a green card holder, you must renew it every ten years prior to its expiration; however, a criminal offense may affect your card renewal. Retain an immigration lawyer prior to renewing your green card, and have him/her work with your defense counsel to assess and negotiate your charges.

Not all criminal offenses have grounds for removal—so speak with your experienced counsel to develop strategies for effective plea bargains and how to renew your green card.

Effective Strategies:

• Lessen the criminal offense
• Motion to Vacate Plea (see below)
• Readjust your status

Argue there’s Not a Conviction

Argument

Keep in mind that not all criminal offenses have grounds for deportation. Have your defense counsel argue that there is no conviction on the record, therefore there are no sufficient grounds for removal. Offenses that are subject to deportation involve crimes of moral turpitude. Think: “What is morally reprehensible?” These crimes generally involve aggravated felonies, sex crimes, drug crimes, etc.

To avoid deportation, have your defense counsel argue that the crime was a minor offense, such as petty theft or simple assault. The lower the offense, the higher chance you have at avoiding removal.

Adjust Your Status

“Green Card”

Adjustment of status is the process of applying for a green card in order to become a US lawful permanent resident. One of the most common ways in adjusting your status is if you already have a relative that is a US citizen. Here are a few steps to get you started on adjusting your status:

1. Determine if you are eligible to apply for a green card.
2. If you have a US citizen relative (spouse, parent, child over 21 years of age), have him/her file an I-130 for you.
3. File an I-485.
4. Be compliant and stay up-to-date with any appointments and interviews prior to receiving a decision.

Remember to be honest and give accurate information about your history throughout the process because any false or misleading information can be held against you receiving a green card. For more information on adjustment of status, click here.

Motion to Withdraw Plea

If you have pleaded guilty to a crime or have been convicted of a criminal offense, retain an experienced immigration lawyer to represent you and file a Motion to Withdraw Plea. It may be that your defense counsel advised you to plead guilty to a criminal offense without making you aware of the immigration repercussions, such as deportation. This motion allows foreign nationals to challenge their conviction, and if granted, may receive a new trial.

This is well-known as the “Padilla motion” in immigration law, named after the landmark case Padilla v. Kentucky. In 2010, the United States Supreme Court held that an immigrant who pleads guilty to criminal charges may contest the conviction if the defense counsel failed to adequately inform him of probable deportation proceedings.

Cancellation of Removal

Cancellation

If you are facing a criminal charge, your counsel may seek to remove your case from criminal court and proceed in immigration court. One large benefit of this tactic is that immigration courts have the authority to grant discretionary relief to the non-citizen facing consequences of deportation.

One form of relief is granting Cancellation of Removal. If granted, the judge discontinues deportation procedures and depending on your case, you may be eligible to apply for a green card. Retain an experienced immigration lawyer to analyze your case and prepare your defense.

Cancellation of Removal cases is extremely hard to win. The judge will take several factors into consideration of granting this form of relief. Refer to INA §240 (8 USC §1229b). Some factors include:

• How long have you been present in the US?
• Do you have good moral character?
• Do you have any criminal convictions?
• Would removal cause any extreme hardship to your US-citizen relative?

There are distinctions between requirements of what green card holders and undocumented immigrants must show in order to be granted this relief.

Waiver

You may be eligible to file an I-601 Waiver in order to avoid removal proceedings based on a criminal conviction. A waiver is when the federal government excuses the criminal offense and allows you to either (1) keep your green card; or (2) apply to adjust your status. An I-601 Waiver will excuse some crimes of moral turpitude; however, there are certain criminal grounds on which the US government will find too serious to permit a waiver.

Therefore, you may want to retain a lawyer to analyze your case on whether you are eligible for one. The processing time for an I-601 Waiver will vary depending on the complexity of the case, and the filing fee is $930.

Asylum

Asylum

Lastly, you may file an I-589 Application for Asylum to avoid being removed from the US. In order to file, you must show that you have experienced or be subjected to great affliction in your home country on account of race, religion, membership in a particular social group, or political opinion. 8 USC § 1158. In order to gain US protection, you must file within one year of your arrival, and there is no filing fee.

Remember, when filing your application, you must be honest—fraudulent asylum applications or applications based solely to gain employment authorization will negatively affect you.

Motion to Terminate Spared a Jordanian Client from Removal

Client: Adult Male Green Card Holder in Removal Proceeding
Client’s Country of Origin: Jordan
Case Type: Motion to Terminate During Removal Proceeding
Date of Application: August 20, 2014
Date of Approval: September 3, 2014

Background:
Our client, a green card holder, retained us for deportation defense due to his criminal conviction which caused the government to place him in removal proceeding.

Challenge:
Motion to terminate is a formal request of the court, in this case, the immigration judge, to end the case. The crux of this case came down to undue and extraordinary difficulties for the family, should removal occur. This kind of legal issue, in its core, is of humanitarian concern.

Difficulties must be extraordinary, that is, beyond common and foreseeable range of acceptable hardship. Normally, cases are stronger when such a difficulty involves family. A textbook case is that the person in the middle of proceedings is the only source of income for a family of two children and a U.S. citizen wife, who had to care for a visually impaired child. Only use this type of humanitarian cause, if one is available; the threshold is higher than what people may expect.

Action:
Herman Legal Group helped our client prove that his removal from the U.S. would result in undue and extraordinary difficulties for his family.

Result:
In less than a month after filing the motion, the removal proceeding was terminated and our client was able to stay in the U.S.