While Cancellation of Removal is perhaps the most sought after form of relief in Immigration Court, it is an extraordinarily complex and labor-intensive application that is often misunderstood. First, respondents (people facing removal proceedings) should be aware that there are actually two different types of Cancellation of Removal Relief. One is for people who already have "green cards" or lawful permanent residence and the other, for people who do not have permanent residence. There are different requirements and criteria for each. The most distinguishing differences are:
· Cancellation for lawful permanent residents requires 7 years of continuous physical presence vs. cancellation for non-permanent residents, which requires that the alien be physically present for a continuous period of 10 years
· Only those permanent residents with an Aggravated Felony are prohibited from applying for cancellation; convictions of crimes involving moral turpitude may be potentially waived by the cancellation application. On the other hand, a non-permanent resident will not be eligible to apply for cancellation if he or she has been convicted of a criminal offense under 212(a)(2), 237(a)(2) or 237(a)(3) of the Immigration and Nationality Act ("INA"). So, in practical terms, a lawful permanent resident with two convictions for shoplifting could still potentially apply for cancellation (provided neither conviction resulted in a sentence of one year or longer) whereas a non-permanent resident with those same convictions would probably not be able to.
· Cancellation of removal for lawful permanent residents requires that the alien have been a permanent resident for at least five years
· Cancellation of removal for lawful permanent residents requires a showing that there are more factors warranting the alien's presence here in the US than those against. It is granted in the Judge's discretion provided he or she is satisfied with the merits of the case. The standard for cancellation for non-permanent residents goes even one step further and even harder to satisfy. The alien must not only demonstrate that the case should be granted as a matter of discretion, but also 1) that he/she has a qualifying family member (US Citizen or Lawful Permanent Resident Spouse, Parent, or Child) and 2) that qualifying relative would suffer exceptional and extremely unusual hardship if the alien were removed or deported.
· If the alien prevails on a cancellation for lawful permanent resident application (EOIR 42-A), he or she will retain permanent residence. In contrast, if the alien applies for and wins cancellation for non-permanent residents (EOIR 42-B), the proceeding will be cancelled and he will be admitted as a lawful permanent resident.
· In both cases, the evidence that has to be assembled and furnished is normally quite extensive.
· In both cases, you must show why you deserve a grant. Just because you are eligible to apply does not mean that your case will automatically be granted.
· In both cases, the wait time before your merits hearing (where you actually prove your case before the Immigration Judge) can be extremely long. These days, merits hearings are being scheduled through 2016!
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.