Aliens facing removal from the United States may eventually qualify for cancellation of removal and remain in the country.
For any national foreigner, facing a removal case can be a distressing situation. However, a deportation process is not always completed, since there are immigration reliefs to stop it.
The immigration lawyers in Los Angeles at Lluis Law have extensive experience to help fight these cases. Call us now and we can determine if you have any alternatives to avoid removal from the US.
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Table of Contents
What Is The Meaning Of Cancellation Of Removal In 2023?
Cancellation of removal is an immigration relief available to aliens facing deportation or removal from the United States. This means that if eligible for this relief, an alien can avoid being deported from the country.
This immigration relief was created by the US Congress to replace the “suspension of deportation”, which was in effect until 1997.
Can A Deportation Order Be Lifted?
Depending on certain circumstances, it is possible to withdraw a deportation order. In the vast majority of cases, it is done through a cancellation of removal.
How do I cancel a deportation order? This is something that we will explain throughout the article. If you achieve this, you will be able to live legally in the country. To learn more about the latter, check our blog on how to legally enter the United States.
For What reasons Can I Be Deported From The United States?
There are several causes an immigrant may receive a deportation order. The Immigration and Nationality Act (INA § 237) establishes the following grounds for deportation from the US:
- Drug crimes;
- Firearms crimes;
- Exceed visa or status violation;
- Sham marriage;
- Situations related to national security.
Other acts may also place an alien in removal proceedings. For example, registering or voting in a US election.
Remember that if you stay in the country, you may face unlawful presence in the US. However, some cases may be favorable. We invite you to learn more about this in our blog “What happens if you overstay your US visa”.
Felonies And Crimes Of Moral Turpitude
Aggravated felonies are very serious crimes and convictions can carry severe punishment. In addition to deportation, conviction for these crimes can result in an alien:
- Not being elegible for a removal waiver;
- Becoming permanently inadmissible to the United States;
- Getting a jail sentence for illegal re-entry.
INA section §101(a)(43)(a)-(u) establishes the following list of felonies:
- Alien smuggling;
- Crimes of violence;
- Deception or fraud;
- Child Pornography;
- Money laundering;
- Drug traffic;
Crimes involving moral turpitude (CIMT) can bar the vast majority of immigration reliefs.
Illegal reentry after deportation is a serious issue to consider. If you are currently doing that you may want to check our blog before contacting us. Additionally, in “T visa requirements” we analyze in detail the crime of human trafficking. You will find others of those mentioned using the search engine on our website.
How To Be Eligible For A Cancellation Of Removal For Permanent Residents?
To be eligible for cancellation of deportation or removal for lawful permanent residents of the United States, the applicant must:
- Prove that the Green Card was legally obtained;
- Be a lawful permanent resident for a minimum of 5 years;
- Have continuously remained in the United States for 7 years after being admitted to the country under any status;
- Have good moral character and not have been convicted of a felony;
- Be able to convince the immigration judge that they deserve to have their application approved.
This relief is also known as LPR cancellation of removal.
How To Be Eligible For A Cancellation Of Removal For Non-Residents?
In this case you must meet all these requirements:
- The first is to have a deportation process open since there must be a procedure to fight against;
- Have lived in the US for at least 10 years continuously;
- Be a person of good moral character in the 10 years prior to the start of the procedure;
- Being the mother or father of a child under 21 years of age, a spouse, or child of a US citizen or resident. Provided that this expulsion may cause extreme suffering to the immediate family member who is legally in the country.
What Is Good Moral Character?
Section §101(f) of the INA defines moral character as character that meets the standards of the average citizen of the community in which the applicant resides.
The following activities are some that remove good moral character:
- Being habitually drunk;
- Receive income earned from illegal gaming activities;
- Have a conviction for more than 2 illegal gambling crimes;
- Being in a sham marriage;
- Possess a conviction for a crime that results in a prison sentence of more than 180 days;
- Having participated in genocide, persecution or acts of torture;
- Having committed an aggravated felony.
Cancellation Of Removal And Its Benefits
Cancellation of removal brings with it several benefits, as a foreign national can petition an immigration judge to adjust their deportable alien status to lawful permanent resident status.
In other words, if an alien is eligible for this relief, they will be able to obtain the following benefits:
- Prevent their deportation from the United States;
- Be able to legally remain in the US;
- Be able to obtain the Green Card of residence;
- Get a Social Security Card;
- Gain eligibility for need-based government assistance such as Medicaid, Food Stamps, and Supplemental Security Income if you have a disability.
In addition, if the Green Card is obtained due to a cancellation of removal, it is possible that over the years the national foreigner can apply to become an American citizen.
Documents Required By An Alien For A Cancellation Of Removal
Applicants for a cancellation of removal are required to gather the following documents:
Family And Community
- Letters of support from relatives (they can even include drawings made by the children), from friends or acquaintances and from the organizations to which they belong;
- Letters of financial support from relatives;
- Photos with relatives;
- Copies of the children’s birth certificates;
- Copies of the marriage certificate (if applicable).
Regarding your behaviour
- Rehabilitation program certificates (if applicable);
- Information brochures about rehabilitation programs in your area (if applicable);
- Letter from your parole officer explaining that you are in Immigration and Customs Enforcement (ICE) custody (if applicable).
Education And Employment
- Pay stubs from jobs;
- Letters from former employers;
- Copy of business license;
- Certificates and diplomas;
- Proof of English training, General Education Development (GED), college or university test;
- Letter showing that you have a job when you leave the detention center;
- Proof that you have performed US military service.
Financial And Personal Records
- Copy of medical history and that of close relatives;
- Social Security documents;
- Tax documents;
- Proof of some insurance (car, medical or other);
- Proof of the property you own in the US;
- Copy of your Green Card;
- Some article of the situation of your country of origin. For example, war, violence, unemployment, poverty and others.
Note: It is not necessary to submit all these documents. In addition, the type of evidence to submit depends on the case.
How Long Does A Cancellation Of Removal Case Take?
Cancellation of removal can prevent aliens from being removed from the US, but it is a process that can take time. Currently, the time it takes to win a case of these is 4 years for non-detainees.
If the alien is detained and cannot be released on an immigration bail bond, they may have very little time to prepare their case. There are 2 reasons why this process takes time:
- There are not enough immigration judges to hear the case. For this reason, individuals generally must wait 18 months or so between their first and last hearings;
- There is a set number of Green Cards per year for successful cancellation of removal cases. Because of this, applicants will have to wait another 12 to 18 months to find out whether or not they will win their case.
Note: In 2016, the Department of Justice (DoJ) proposed an opportunity for the second cause, allowing judges to deny cancellation cases and order the immediate removal of aliens in their final hearings. Instead, a recipient would have to wait one to two years to get their Green Card.
How Long Does It Take To Cancel The Deportation?
The time depends on the immigration court, so it can be from a year to a year and a half.
- If you win the case, the alien’s deportation process will end and he will no longer be deported from the country.
- If the case is lost, the alien will be deported immediately.
What Are The Requirements For A Cancellation Of Removal And Adjustment Of Status?
Although you can adjust your status after getting a cancellation of removal, not all aliens can qualify for one. To qualify for a cancellation of removal, the alien must:
- Be in removal proceedings from the United States;
- Have been continuously present in the US for at least 10 years;
- Have had good moral character during the 10-year period in the US;
- Have a spouse, child, or parent who is a lawful permanent resident or US citizen;
- Have no convictions that make you inadmissible or deportable. For example, a felony;
- Show that their lawful permanent resident spouse, parent, or child would suffer exceptional and extremely unusual hardship as a result of their deportation.
If you meet these requirements, the alien can apply for cancellation of removal. But what if you have committed certain crimes? The attorneys at Lluis Law are also criminal lawyers in Los Angeles who can help clear criminal records.
What Is An Exceptional And Extremely Unusual Hardship?
An exceptional and extremely unusual hardship is one where the deportation of an alien would cause their spouse, parent, or child to suffer a great hardship worse than the hardship that is generally expected from deportation in normal cases.
Some examples of this exceptional and extremely unusual hardship include:
- Medical problems;
- Physical problems;
- Serious and continuous psychological illnesses.
Financial hardship alone does not qualify for this rule.
What Is The Cancellation Of Removal Process Like?
Aliens can request a cancellation of removal through the following process:
- Prepare and file with the Immigration Court Form EOIR 42B or Form EOIR 42A along with the corresponding USCIS fees;
- Prepare the alien’s testimony and appear at the first Immigration Court hearing (Master Calendar Hearing) and then an individual hearing. For these hearings, the national foreigner must submit the following:
- Evidence in the form of documents;
- Sworn written statements;
- Testimony establishing that your immediate family members will suffer exceptional and extremely unusual hardship if you are deported.
- If the immigration judge determines that the alien has met all the necessary requirements, the deportation process will be canceled and the alien will obtain permanent residence in the US.
Phases Of Cancellation Of Removal
The steps of the process can be divided into 4 phases where the 42B law intervenes, also known as 42B immigration relief or 42B cancellation of deportation:
- A deportation proceeding must be underway. If not, then the aliens must ask USCIS to send them a notice to appear and refer the case to the immigration court;
- You must complete Form EOIR 42B if you are an undocumented alien or Form EOIR 42A if you are a permanent resident;
- The case must be prepared with documentation, statements and witnesses to submit in court. You will appear in court for both the Master Calendar hearing and the individual hearing;
- The immigration judge may consider that the alien has met the requirements. In this case, the deportation process is canceled and permanent residence in the US is obtained.
For more information on fees, please check the following USCIS link .
At Lluis Law we offer representation in the Los Angeles Immigration Court. Feel free to contact us for further information.
What Happens During Removal Proceedings?
During removal proceedings, the judge will ask the alien some questions to determine whether or not the alien can apply for cancellation of removal. Some questions may include the following:
- Have you used any other names in the US?
- When did you first enter the US?
- How did you get into the US?
- Have you left the US since getting your Green Card? If so, how many times have you been abroad?
- Are you married? When did you get married? Where does your spouse live? What is the status of your spouse? Have you ever filed a petition for your spouse?
- Why you didn’t get married yet if you are living with someone? Have you made plans to get married? How long have you lived together?
- Do you have children? When were they born? How old are your children? Who lives with them? What is the current status of your children?
- Do your parents live? Where they live? What is their current immigration status?
- What will you do if you are deported from the US? Where will you go? Who will you live with? Where will you work?
- Do you have any illness? If so, which one?
- Do any of your relatives have any illness?
- Will your spouse or children go with you if you are deported? If not, why? How will they face difficulties if they go with you?
- How far did you get in school?
- What was your last job? How much did you earn a week? How long did you work at that job?
- Have you always done the tax return?
- Have you ever served in the US military?
Note: The fact that an immigration judge grants an alien’s request for cancellation of removal does not mean that the alien has won the case.
Can A Work Permit Be Renewed Due To Cancellation Of Removal?
This is possible in the following scenarios:
- You were admitted for the purpose of applying for asylum in the United States;
- The asylum request is pending and a work permit was previously granted;
- You have a residency petition through employment;
- You are eligible for TPS in the United States.
Note: Keep in mind that the final decision rests with USCIS. They may deny your request as an exemption from the poorly established law. Contact us to see your options.
What Can I Do If My Cancellation Of Removal Process Is Denied?
If an alien is denied immigration relief from cancellation of removal, they can start an immigration appeal process with the Board of Immigration Appeals (BIA). To do this, the national foreigner must consider the following:
- File the appeal request with the BIA;
- If the reason for rejection was a clerical error, the national foreigner may not have completed the process correctly. To do this, you can request another hearing to make the necessary corrections before an immigration judge;
- The immigration judge will explain to the alien the reasons why their process was rejected;
- If the cancellation of removal is denied in its entirety, you will not be able to request it again.
What Is Cancellation Of Removal For VAWA?
For those aliens who are in removal proceedings, VAWA cancellation of removal can help them stay in the United States. This is a form of immigration relief available to victims of abuse who wish to continue in the country.
To qualify for a VAWA cancellation of removal, the alien must:
- Have been the victim of extreme battery or abuse by a US citizen or resident;
- Have been physically present in the United States for at least 3 years before deportation proceedings begin;
- Have good moral character since your stay in the US and are not subject to any grounds of inadmissibility;
- Show that your deportation would result in extreme hardship for you or your family.
For more information about this topic, we invite you to read “VAWA visa” from our blog.
Other Forms Of Relief
Although cancellation of removal is one way to avoid being removed from the US and achieve lawful permanent residence, cancellation of removal cases are very difficult to win and require high standards for a positive outcome.
Aliens may consider other forms of relief for which they may be eligible other than a cancellation of removal, these include:
- Asylum or Convention Against Torture;
- Voluntary departure. In the event that the foreigner is in removal proceedings or the request for cancellation of deportation has been denied, they may request a voluntary departure from the United States before an immigration judge;
- Cancellation of Removal for Marital Abuse or U.S. Parent: To meet this requirement, the applicant:
- Must have been subjected to extreme cruelty or mistreatment by a US citizen or resident spouse or parent;
- It is not inadmissible or deportable. That is, you do not have a conviction for an aggravated felony;
- Prior to service of the Notice to Appear, you have been physically and continuously present in the US for more than 3 years;
- Throughout your stay in the US you have maintained good moral character;
- If deported, it would result in extreme hardship for the applicant or their U.S. citizen or resident child, or the applicant is a child who, if deported, would result in extreme hardship for the applicant or their parents.
Frequently Asked Questions About Cancellation Of Removal
Cancellation of removal is not only a defense against deportation, it can also grant permanent residence to an alien (provided the immigration judge finds the alien eligible for one).
If immigration arrests an undocumented person, it is recommended that they do not sign their voluntary departure and that they request an attorney. If the alien has been in the US for more than 10 years, they must request a hearing with a judge. If you leave the country, the accumulated years will be lost.
Requesting a cancellation of removal is very risky because if the immigration judge denies the case, the alien must leave the US. For this process it is advisable to have the help of an immigration attorney to represent the case.
In general, departures from the country that are less than 2 weeks will not cause any problems. However, departures of more than 2 weeks can be problematic for the case. Departures of more than 90 days may void the cancellation of removal process.
Lawyers Specializing In Cancellation Of Removal
Deportation cases are overwhelming and even more so is facing a cancellation of removal case. This is because such cases are very difficult to win and not just any attorney can effectively represent the alien in that scenario.
With a cap of only 3,500 approved cancellations of removal per year, aliens can find themselves in a difficult situation if they wish to continue in the United States.
The Lluis Law firm has the prestige of having more than 40 years of experience in all types of immigration cases. Therefore, if you or a family member is facing a deportation case, contact us immediately to review your facts surrounding the case.
LATINOS WITH OVER 50 YEARS EXPERIENCE
Tell Us Your Case