Cancellation of Removal is an immigration benefit whereby permanent and nonpermanent residents may apply to an Immigration Judge to stop deportation and either reinstate a lawful permanent resident status or allow the individual to become a lawful permanent resident (green card).. The eligibility requirements differ between aliens who are lawful permanent residents and those who are nonpermanent residents.
To be eligible for cancellation of removal, a lawful permanent resident (green card holder) must show that he/she
- has been a lawful permanent resident for at least five years,
- has continuously resided in the United States for at least seven years and
- establishes a good moral character.
Nonpermanent residents must establish that he/she
- has been physically present in the United States for a continuous period of 10 years
- has been of good moral character during the 10-year period,
- has not been convicted of certain criminal offenses and
- that removal would result in exceptional and extremely unusual hardship to US citizen or lawful permanent resident family members.
The Immigration Judge has discretion to grant or deny Cancellation of Removal applications. In determining whether cancellation is warranted, the judge may consider the length of residence in the United States, family and community ties and community service work, among other things.
Meeting the Time Requirements
The person's continuous presence will legally end with the issuance of a Notice to Appear or the commission of a crime that renders the individual inadmissible or removable from the United States, whichever happened earliest. Similarly, the continuous physical presence is cut off by any trips in excess of 90 days or for any periods in the aggregate exceeding 180 days.
Meeting the Good Moral Character Requirement
When an applicant is convicted of a crime, that particular crime may make him or her ineligible to apply for cancellation of removal. Whether a crime renders the person ineligible for lack of good moral character will depend on the Immigration Judge’s evaluation of the seriousness of the offense, as well as pertinent case law. In addition, payment of income taxes can be a basis for an Immigration Judge's finding of 'good moral character'.
Meeting the Extreme and Unusual Hardship Requirement
One of the most difficult requirements in a Cancellation of Removal case for a nonpermanent resident is the extreme and unusual hardship requirement. The person not only is required to have a qualifying relative such as a child, spouse or parent who is a legal permanent resident or citizen of the United States, but also demonstrate that the applicant’s removal would cause hardship to that qualifying relative that rises beyond the normal hardship expected in case of removal, such as separation or financial difficulty.
Whether the foreign national is a permanent resident or nonpermanent resident applying for cancellation of removal, the use of witnesses is highly recommended in addition to providing a variety of documentation reflecting the positive factors listed above.
Talk to the Law Offices of Meri S. Ponist, P.C.
Hiring an experienced attorney to represent you in removal proceedings greatly improves the chances of success in with your Application for Cancellation of Removal.
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