How to Apply for Cancellation of Removal: Eligibility and Process.
Facing removal proceedings can be a daunting experience, but understanding your options is crucial. Cancellation of removal offers a potential defense against deportation for both permanent and non-permanent residents.
This comprehensive guide outlines the eligibility requirements and process for seeking this important form of immigration relief.
Understanding Cancellation of Removal
Cancellation of removal is a legal remedy that allows certain immigrants facing deportation to remain in the U.S. and, in some cases, obtain a green card. This process serves as a crucial defense option for both lawful permanent residents and non-permanent residents who meet specific criteria.
Types of Cancellation of Removal
- For Lawful Permanent Residents (LPRs): Allows certain LPRs to apply for cancellation of removal based on their continuous residence and other factors.
- For Non-Permanent Residents: Provides a pathway for individuals without permanent residency to remain in the U.S. under specific circumstances.
Who Qualifies for Cancellation of Removal?
Eligibility requirements differ significantly between permanent and non-permanent residents. Below are the criteria for each category:
Requirements for Lawful Permanent Residents
| Requirement | Details |
|---|---|
| Maintained Lawful Permanent Resident Status | Must have held LPR status for at least five years. |
| Continuous Residence | Must have continuously resided in the U.S. for seven years after being admitted. |
| No Aggravated Felony Convictions | Must not have been convicted of any aggravated felonies. |
| Strong Moral Character | Demonstrate good moral character during the residency period. |
Requirements for Non-Permanent Residents
| Requirement | Details |
|---|---|
| Physical Presence | Must have been physically present in the U.S. for at least ten years. |
| Good Moral Character | Demonstrate good moral character throughout the ten-year period. |
| No Disqualifying Criminal Convictions | Must not have serious criminal convictions that render one ineligible. |
| Exceptional and Extremely Unusual Hardship | Removal must cause exceptional and extremely unusual hardship to qualifying U.S. citizen or permanent resident family members. |
Documentation Required for Your Application
To apply for cancellation of removal, gather the following essential documents:
- Form EOIR-42A (for LPRs) or EOIR-42B (for non-permanent residents)
- Proof of Continuous Presence: Documents demonstrating your continuous residence in the U.S.
- Tax Returns and Employment Records: Evidence of financial stability and compliance with tax obligations.
- Criminal Record Documentation: Official records showing your criminal history, if any.
- Evidence of Family Ties and Hardship: Documentation proving the hardship removal would cause to your family members.
- Character Reference Letters: Letters from community members attesting to your good moral character.
- Immigration Court Documents: Copies of all relevant immigration court filings and notices.
The Application Process
Step 1: Preparing Your Application
Begin the cancellation of removal process with thorough preparation:
- Collect All Required Documentation: Ensure you have all necessary documents to support your application.
- Complete the Appropriate EOIR Form: Fill out either Form EOIR-42A or EOIR-42B, depending on your residency status.
- Organize Evidence of Eligibility: Arrange your documents to clearly demonstrate how you meet the eligibility criteria.
- Prepare Hardship Documentation: Gather evidence showing the exceptional and extremely unusual hardship your family members would face if you are removed.
- Gather Supporting Affidavits: Obtain written statements from individuals who can support your application.
Step 2: Filing Your Application
When filing for cancellation of removal:
- Submit Your Application to the Immigration Court: Follow the court’s specific filing procedures.
- Pay the Required Filing Fee or Request a Fee Waiver: Ensure that you meet the financial requirements or apply for a waiver if eligible.
- Ensure All Supporting Documents Are Properly Organized: Present your documents in a clear and logical order.
- Maintain Copies of Everything Submitted: Keep duplicates of all filed documents for your records.
Step 3: The Immigration Court Hearing
During your hearing, you will:
- Present Your Case Before an Immigration Judge: Clearly articulate your reasons for seeking cancellation of removal.
- Provide Testimony About Your Eligibility: Explain how you meet the eligibility criteria.
- Demonstrate Hardship Factors: Present evidence showing the impact of removal on your family members.
- Answer Questions About Your Application: Be prepared to respond to the judge’s inquiries.
- Present Witnesses If Necessary: Bring in individuals who can support your case.
Common Challenges and Solutions
Applicants often encounter several challenges during the cancellation of removal process:
1. Proving Continuous Presence
Solution: Maintain detailed records of your time in the U.S., including travel records, rental agreements, and employment history.
2. Documenting Exceptional and Extremely Unusual Hardship
Solution: Provide comprehensive evidence, such as medical records, financial statements, and personal affidavits from family members.
3. Addressing Past Immigration Violations
Solution: Be transparent about past violations and demonstrate how circumstances have changed since then.
4. Meeting Good Moral Character Requirements
Solution: Gather character reference letters and avoid any behavior that could negatively impact your moral character assessment.
Legal Assistance Is Critical
The immigration law surrounding cancellation of removal is complex. An experienced immigration attorney can:
- Evaluate Your Eligibility: Determine if you meet the necessary criteria.
- Help Gather Required Documentation: Assist in collecting and organizing your evidence.
- Represent You in Immigration Court: Advocate on your behalf during hearings.
- Present Your Case Effectively: Ensure your application is compelling and well-supported.
- Address Potential Complications: Navigate any legal challenges that arise during the process.
Cancellation of removal provides a vital opportunity for those facing deportation, but the process requires careful attention to detail and strong supporting evidence. Whether you’re a permanent resident or non-permanent resident, understanding the requirements and process is crucial for success.
Eligibility Comparison: Lawful Permanent Residents vs. Non-Permanent Residents
| Criteria | Lawful Permanent Residents (LPRs) | Non-Permanent Residents |
|---|---|---|
| Duration of Status | At least five years as an LPR | N/A |
| Continuous Residence | Seven years after admission | At least ten years physically present |
| Criminal Record | No aggravated felonies | No disqualifying criminal convictions |
| Moral Character | Good moral character during residency | Good moral character throughout ten years |
| Hardship Requirement | N/A | Must demonstrate exceptional and extremely unusual hardship to family |
See if You Qualify for Cancellation of Removal.
Attorney Grace Marcano-Gonzalez can help determine if you meet the eligibility requirements for cancellation of removal. We understand the complexity of the process and can guide you through each step.
Frequently Asked Questions (FAQs):
Eligibility for cancellation of removal generally depends on whether you are a permanent resident or a non-permanent resident. Non-permanent residents must prove that they have lived in the US for at least ten years, have good moral character, and that their removal would result in exceptional and extremely unusual hardship to their qualifying relatives, such as a spouse or child who is a US citizen or lawful permanent resident. Permanent residents may have different criteria based on their immigration status.
To initiate the cancellation of removal process, you typically need to complete and submit several forms, including the Application for Cancellation of Removal (Form EOIR-42B for non-permanent residents). You may also need to provide supporting documentation that proves your eligibility and the required hardship criteria. Consulting with an immigration attorney can help ensure that you submit the correct forms and evidence.
The immigration judge will consider various factors when making a decision on your removal proceedings. This includes your length of residency in the US, family ties, your moral character, and the impact of your removal on your qualifying relatives. The judge will also assess whether you have shown that your situation involves exceptional and extremely unusual hardship. It is crucial to present compelling evidence to support your claims during the hearing.
Yes, there is a specific process for cancellation of removal for non-permanent residents. Non-permanent residents can also qualify for this form of relief if they meet the eligibility requirements, including physical presence in the US for ten years and the ability to demonstrate hardship to a qualifying relative.
