In the last few years, the more cutthroat elements of US immigration law became obvious. While this is hopefully due to change under President Biden’s term, it highlighted the fragility many migrants face.
Perhaps you or someone you know has received a notice of removal (deportation). If so, they might be eligible for cancellation of removal. As an immigration lawyer, I feel it is necessary to explain what this process entails.
Below, we’ll look at how the process differs for legal and non-legal residents, and what immigrants can do to improve their chances of success.
What is Cancellation of Removal?
If ICE notifies you of deportation (called a Notice to Appear) after living in the USA for a long time, you can apply to have your deportation canceled. Unsurprisingly, this is called Cancellation of Removal.
Cancellation of Removal is a provision of the US Immigration and Nationality Act that allows non-citizens to remain in the country. The provision is available to permanent legal residents (green card holders) and non-legal residents. However, the criteria for the latter are much stricter.
What does Cancellation of Removal Entail for Legal Permanent Residents?
To be eligible for the process, legal permanent residents (LPRs) must meet the following criteria:
- You must have a minimum of 5 years as an LPR.
- You must have lived in the US continuously for 7 years.
- You haven’t been convicted of certain violent or federal crimes.
The first step is to submit the application EOIR-42A. It asks for information about you and your family to cover the criteria mentioned above. There is a processing fee associated, which is currently $390.00.
Then, you must gather evidence to prove you meet these criteria. It can be difficult because some of the terms are quite vague, but an immigration lawyer will talk you through what constitutes as evidence.
Finally, you will have a hearing with an Immigration Judge so he/she can determine your eligibility. Most of the hearing focuses on whether you should keep your green card, so you need to present a convincing case of good faith evidence as to why you deserve to stay despite your criminal or other unfavorable background.
Friends and family members can testify on your behalf, but this can be a very stressful and emotional thing for them to do.
Hopefully, you’ll find that most Immigration Judges are lenient in this situation, particularly because cancellation of removal can only be granted once and you are already a legal permanent resident.
Cancellation of Removal for Non-Legal Residents
The cancellation of removal process is also available to non-legal permanent residents (non-LPRs). Many of the criteria are the same as for legal residents, but Immigration Judges must take other things into account.
Again, you must prove:
1. You have lived continuously in the US for a minimum of 10 years.
2. Sections 212(a), 2, and 3, and Sections 237(a) (1) (G) aren’t applicable to you. These cover security and crime and marriage fraud.
3. You haven’t been convicted of a crime, failed to register, or produced fraudulent documents.
4. You have demonstrated good moral character.
5. Your removal will cause exceptional and extremely unusual hardship to immediate relatives who are US citizens or legal residents.
An Immigration Judge will consider hardship to relatives based on their age, health, and ties to the community. They will also look at the impact your removal will have on your relative’s finances, their academic and economic prospects, and familiarity with the country of removal.
These factors are cumulative, but it is ultimately up to the Judge’s discretion how your removal will impact relatives.
One of the biggest differences for non-LPRs is that Immigration Judges can only grant 4,000 requests each year nationwide. Even if you win, you might be put on a waiting list for a green card, which as of this writing is a little under two years.
Gathering Evidence for Cancellation of Removal
The burden of proof in cancellation of removal proceedings lies with the applicant (you). It’s vital to gather as much evidence as possible to demonstrate why you should remain in the US and receive a green card.
In legal settings, burden of proof can be a difficult thing to realize. In a recent Supreme Court ruling, an immigrant was denied cancellation of removal because he committed crimes involving “moral turpitude”. This is a crime that violates the accepted standards of a community. In this immigrant’s case, he had been using a fake Social Security number.
Proving 10 years’ residence in the country is less complicated but necessary to get right. Your 10-year clock starts from the day you first moved to the USA and ends when you either receive a Notice to Appear for immigration court or commit certain crimes.
You can prove continuous habitation in the country using written testimonies from employers, landlords, etc. or through bank statements, rent receipts, pay slips, taxes, etc.
Proving good moral character can be extremely vague. While there are factors that demonstrate good moral character, many clearer definitions include what it is not. For example, you cannot have good moral character if you are involved in/convicted of:
- Aggravated felony or federal crime (trafficking, money laundering, being a habitual drunkard, firearms offenses, etc.)
- Providing false information in documents
- Falsely claiming US citizenship
As you can see, many of these align with the condition of you having not committed a state or federal crime, as described above.
When gathering the evidence for a cancellation of removal request, finding an immigration attorney is necessary to guide you through the process and ensure your evidence is correct and accurate.
How Can an Immigration Lawyer Help?
There are several important aspects in the cancellation of removal process, and it is important to do everything possible to increase your chances of success. As such, finding an immigration attorney experienced in cancellations of removal is necessary.
Consider the following when choosing the right immigration attorney for your case:
- Legal and non-legal cancellations of removal require different evidence, and the latter is more complicated. Be sure your lawyer has extensive experience dealing with the one that applies to you.
- See whether the lawyer has personal experience with the immigration court that issued your Notice to Appear. They may have advice on how to improve your chance of success.
- If you are not a native English speaker, it can help to find a lawyer who speaks your native language. Immigration law is a complicated topic, and effective communication is vital.
Hiring an experienced lawyer might be expensive on the surface, but it is well worth the investment. If it is the difference between winning and losing your case, it justifies itself.
Here at The San Diego Immigration Law Office, we appreciate that every person applying for cancellation of removal (whether legal or non-legal) deserves the right to be heard. We have extensive experience dealing with all manner of complicated cases and will treat yours with the respect and compassion it deserves.
We offer flexible payment plans, as we know fees are often a big concern in hiring the right lawyer. We are more than happy to discuss this with you during consultation.
As with any other immigration process, cancellation of removal gets quite complicated and isn’t something you should handle alone.
The cap for non-LPRs cancellations of removal is only 4,000 per year and is reached quite quickly. Therefore, hiring the right immigration lawyer is important to help your chance of success and to guide you through the application process.
So, if you or someone you know is facing deportation, contact The San Diego Immigration Law Office. I’m experienced in dealing with the cancellation of removal requests and can guide you through the steps, so you have the greatest chance of success.