Cancellation of Removal for Green Card Holders

If you are a green card holder in the United States, then you have certain protections from deportation. However, until you are a United States citizen you may be removed under certain circumstances. Often these situations are some of the most tense and high-stakes. People who have made their life in the United States and enjoyed protections as lawful permanent residents can be removed and forced to leave it all behind. If you find yourself in this situation, it is critical to consult with an immigration attorney as soon as possible to discuss your options.

In general a person may be removable from the United States under the following circumstances:

  • was inadmissible at time of U.S. entry or of adjustment of status, or violates the terms of his or her visa, green card, or other status. (Permanent residents who have been absent from the United States for fewer than 180 continuous days don’t have to worry about admissibility upon their return except if they have committed certain crimes).
  • had conditional permanent resident status (applicable to certain spouses, sons, and daughters of U.S. citizens as well as investor/entrepreneurs, with their spouses, and children) but had this status terminated.
  • before, during, or within five years of the date of any U.S. entry, knowingly helped smuggle any other alien trying to enter the United States.
  • committed marriage fraud.
  • got married less than two years before getting a U.S. green card on that basis, then has the marriage annulled or terminated within the following two years, unless the immigrant can prove that the marriage was not a fraud, meant to evade any provision of the immigration laws.
  • is convicted of a crime involving moral turpitude that was committed within five years after the date of U.S. admission (or ten years if the person received a green card as a criminal informant) and is punishable by a sentence of at least one year.
  • has been convicted of two or more crimes involving moral turpitude at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct.
  • has been convicted of an aggravated felony at any time after U.S. admission.
  • has been convicted of high-speed flight from an immigration checkpoint.
  • fails to register as a sex offender.
  • has been convicted of a drug crime (or a conspiracy or attempt to commit one), whether in the U.S. or another country, at any time after U.S. admission. There’s an exception for a single offense involving possession for personal use of 30 grams or less of marijuana.
  • is, or at any time after U.S. admission has been, a drug abuser or addict. Notice that no actual court conviction is needed to be deportable under this section. The person’s own confession to drug use, or evidence on a medical report, could be enough.
  • has been convicted of illegally buying, selling, possessing, or engaging in other transactions concerning firearms, weapons, or destructive devices, at any time after U.S. admission.
  • has been convicted of committing, or conspiring to commit espionage, sabotage, treason, or sedition, if punishable by at least five years in prison.
  • has violated the Military Selective Service Act or the Trading With the Enemy Act.
  • has violated certain travel and documentation restrictions or imported aliens for immoral purposes.
  • has been convicted of domestic violence, stalking, child abuse, child neglect, or child abandonment, at any time after U.S. admission.
  • has violated the portion of a protective order that is meant to stop credible threats of violence, repeated harassment, or bodily injury.
  • has committed or conspired to commit human trafficking inside or outside the U.S. or has apparently been a knowing aider, abettor, assister, conspirator, or colluder with someone else in severe forms of human trafficking; or is the trafficker’s spouse, son, or daughter who, within the past five years, knowingly received any financial or other benefit from the illicit activity.
  • failed to advise the immigration authorities, in writing, of a change of address within ten days of the move, unless the person can prove that such failure was reasonably excusable or not willful.
  • has been convicted of providing false information in connection with a requirement to register with immigration authorities or of other violations relating to fraud and misuse of visas, permits, and other entry documents.
  • has received a final order of deportation for document fraud, forgery, counterfeiting, or related violations.
  • falsely represents himself or herself as a U.S. citizen in order to gain any immigration or other benefit. An exception is made if the person’s parents (natural or adoptive) are or were U.S. citizens, the person lived in the United States before age 16, and the person reasonably believed himself or herself to be a U.S. citizen.
  • is engaged, or at any time after admission engages in espionage, sabotage, or violations or evasions of any law prohibiting export of goods, technology, or sensitive information, or in any other criminal activity that is a danger to public safety or national security, or acts in opposition to, or attempts to control or overthrow the U.S. government by force, violence, or other unlawful means.
  • has engaged in or appears likely to engage in terrorist activity, or has incited terrorist activity, or is a representative a terrorist organization or group that endorses or espouses terrorist activity, or is a member of a terrorist organization (unless the person proves that he had no idea of its terrorist aims), or endorses or espouses terrorist activity or persuades others to do so, or has received military-type training from or on behalf a terrorist organization, or is the terrorist’s spouse or child, if the relevant activity took place within the last five years.
  • by being present in the U.S., would create potentially serious adverse foreign policy consequences.
  • participated in Nazi persecution, genocide, torture, or extrajudicial killings, severe violations of religious freedom, or recruitment or use of child soldiers.
  • within five years after U.S. entry, has become a public charge (dependent on need-based government assistance) for reasons that did not arise after the person’s U.S. entry.
  • has voted in violation of any federal, state, or local law. An exception is made for people who, based on parentage, reasonably believed themselves to be U.S. citizens.

Even if the immigration authorities believe that you are deportable, you will not be kicked out of the country right away. In most cases (unless, for example, there is an outstanding order of removal in your file), you have a right to defend your case in immigration court. For some types of deportability, the law may provide a waiver (legal forgiveness) that you can apply for.

Who is eligible for cancellation of removal?

If you are a lawful permanent resident who has been placed in removal proceedings, you may qualify for cancellation of removal. This immigration relief is applicable only once removal proceedings have begun and will be argued in front of an Immigration Judge. If you are found to be eligible, then it will allow you to keep your green card and permanent resident status. However, you must satisfy all of the following requirements:

  • have been a lawful permanent resident of the U.S. for at least five years at the time that the application is filed
  • have continually resided in the U.S.for at least seven years after being admitted in any status and before the “stop-time rule” is triggered
  • have not been convicted of an aggravated felony
  • have not received cancellation of removal or 212(c) relief in the past, and
  • as a matter of discretion, deserve to win your case and keep your green card.

Remember that cancellation of removal relief is only available ONCE. There are no repeats, and a failure to prove your eligibility can lead to the Immigration Judge to issue an Order of Removal. You must present a strong case the first time.

Cancellation of Removal for Non-LPRs

 If you have been living in the United States for a long time without legal status and have been charged with being removable, you must seek help quickly to see if you qualify for immigration relief. You might be eligible for Non-LPR Cancellation of Removal under INA § 240A(b)(1) . Non-LPRs who receive Cancellation of Removal will then be eligible for Adjustment of Status (i.e. receiving a Green Card).

However, the standards are very high, and you must prove all of the following requirements:

  1. You have been living (“continuously physically present”) in the U.S. for at least ten consecutive years;
  2. Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs);
  3. You have not been convicted of certain crimes or violated certain laws under section 212(a)(2), 237(a)(2), or 237(a)(3) of the Immigration and Nationality Act; and
  4. You can show that you have “good moral character” for the entire 10 year period prior to applying for Cancellation of Removal.

It is important to remember that this form of deportation relief is discretionary. Meaning that the Immigration Judge could STILL order you removed from the United States, even if you satisfy all of the requirements above. Due to the discretionary nature, it is extremely important to present the strongest possible case to the Immigration Judge. You must show that you fulfill the requirements and that you really deserve to stay in the United States.

The Numerical Limit 

There is also a cap on the number of Non-LPR Cancellations which can be approved per year. Pursuant to INA § 240A(e)(1), there is a limit of 4,000 for the number of Non-LPR Cancellations that Immigration Judges around the country may grant. This means that you may have a case that satisfies the requirements but still not be able to receive Cancellation of Removal. Once the number has reached 3,500, Judges are instructed to reserve final decisions and either draft a decision or reserve their decision until more spaces open up.

The Ten Year Clock

To qualify for Non-LPR Cancellation, you must be able to show that you have been continuously physically present for the ten years immediately before the date that you apply for cancellation. (There’s an exception if you have completed two years of active service in the U.S. armed forces, in which case those two years alone are enough to meet the time requirements for non-LPR cancellation.)

The date of your arrival starts the ten-year “clock.” The clock stops when you receive a Notice to Appear in immigration court, commit certain types of crimes, or have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days. There are also other ways that the clock can be stopped, such as leaving the U.S. under a “voluntary departure order.”

Testimony and written declarations from you and other people who know you can be enough to show ten years of residence. However, if you have documentary evidence of your U.S. residence, such as rent receipts, credit card statements, pay stubs, and so on, you should provide it to the court.

Finding An Attorney for Cancellation of Removal

It is critical to your Cancellation case to consult with an attorney. Call our office for a consultation about your Cancellation case today.

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