A cancellation 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.
Who Is Eligible To File for VAWA Cancellation of Removal?
Here are eligibility requirements to meet before determining if you can apply for VAWA cancellation or removal:
- If you are an abused spouse of a U.S. Citizen or a Permanent Resident;
- Abused child of a U.S. Citizen and a Permanent Resident;
- A non-abused parent of abused child of a U.S. Citizen or a Permanent Resident (regardless if you are married to the abuser); a
- An abused intended spouse of a U.S. Citizen or a Permanent Resident.
If you consider that you meet the above requirements that you shall prove those and provide relevant evidence, including proofs that:
- You have physically present in the United States for the last three years before applying;
- You are a person of good moral character;
- You have not been condemned of an aggravated felony;
- You are not inadmissible or deportable due to particular criminal, security, or marriage fraud violations;
- Removal would result in extreme deprivation to you, your child, or the parent.
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.
Steps To Apply For VAWA Cancellation of Removal
Let’s say there are four steps on your way to the cancellation of removal:
Placed in Removal Proceedings
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.
Appear Before the Court
- The immigration court will mail you a notice to inform you of the exact time, date, and location of the hearing
- At the first hearing, you have to appear and plead to the charges on the NTA.
- If you don’t show up at the hearing, you will be ordered with the removal in your absence and barred from applying for cancellation of removal;
Plead to The Charges
The burden to establish your inadmissibility or deportability has the DHS. So, at the hearing you will have to:
- Admit to the charges to move the process along to the point where a cancellation application may be considered;
- Argue a charge such as fraud or one based on a criminal ground;
- State what relief from removal you are seeking;
- Request cancellation of removal at this time, otherwise you won’t be able to use for cancellation later in the proceedings;
- Seek additional time to prepare and file the application or may submit it at the master calendar hearing;
- Use Form EOIR 42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) and follow the instruction on how to fill it out properly,
Prove Your Case at The Immigration Court
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:
- Your relationship with the abuser (marriage certificate, birth certificate)
- That you have lived continuously in the United States for three years before the filing;
- That you suffered family violence by the U.S. citizen or legal permanent resident spouse or parent
- That you are of “good moral character,” not committed any criminal convictions
- That you, the child, or the parent of the abused child would suffer “extreme hardship” ( economic deprivation, employment loss, or difficulty adjusting to life in the native country) if deported.
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.