Introduction to Cancellation
Cancellation of removal for Non Permanent Residents under INA §240A(b)(1) (“non-LPR cancellation of removal”)
is a critical defense to deportation available to certain noncitizens with family in the United States. A person who is granted non-LPR cancellation of removal receives a green card. Cancellation of removal for certain non permanent residents can only be applied for in Immigration Court. Cancellation is a “defensive” application, meaning that it is only available to someone facing removal in immigration court. This means that, unlike many other applications for a green card, or lawful permanent residence, a person cannot apply for cancellation of removal by affirmatively submitting an application to the U.S. Citizenship and Immigration Services (USCIS).
The eligibility requirements for non-LPR cancellation are distinct from other means of applying for a green card, and also from other types of cancellation of removal. It is imperative for immigration practitioners to be familiar with non-LPR cancellation, as it may be the only form of immigration relief available for many people in removal proceedings who entered the United States without inspection.https://californiaimmigration.us/removal/cancellation-of-removal-for-people-in-immigration-court/
Requirements of Cancellation of Removal
A person qualifies for non-LPR cancellation of removal if she is in removal proceedings because she is inadmissible
or deportable and meets the following criteria. Each of these requirements will be discussed in more detail below:
- she has been physically present in the United States continuously for at least ten years;
- she has had good moral character for ten years;
- she has not been convicted of certain offenses; and
- to deport her would cause exceptional and extremely unusual hardship to her LPR or U.S. citizen spouse, child, or parent
Cancellation is NOT available to the following foreign nationals
Under INA § 240A(c), non-LPR cancellation of removal is not available to the following people:
a. people who already have received cancellation of removal, suspension of deportation, or INA § 212(c)
b. people who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds; and
c. crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors.
Physical Presence Needed
Cancellation of removal for certain non permanent residents is not easy to obtain, but will result in residency if granted.
To meet the first requirement for non-LPR cancellation of removal, the applicant must show that she has ten years of continuous physical presence in the United States. This brings up two important questions. First, when does the ten-year period end (or, as it is sometimes described, what “stops the clock”)? Second, what effect do absences from the United States have?
Stopping the clock is a term of art which is very important if you are close to the 10 years needed to be eligible for the application of Cancellation of Removal. In fact, sometimes if you are only a few months away, we could request that Immigration ‘Repaper’ you so as to serve you with the NTA after the physical presence of 10 years has accrued.
One of the most difficult items to prove in a Cancellation case would be showing extreme hardship to the child, spouse or parent. This cannot just be normal hardship associated with a normal deportation. It must be extreme hardship. Normally, severe medical issues are easier to fall into those categories. However, there are many reasons, but you sometimes have to get creative to try to prove the severe hardship.
If this is granted, it means you will get lawful permanent residency or the Green Card.