Cancellation of Removal for non-permanent residents as a means of Achieving Permanent Residency

Cancellation of Removal should be no one's first choice as a means of procuring permanent residency in the U.S., but it is available to some.

Cancellation of Removal is available to those who have been:

• physically present in the US for ten years;

• a person of good moral character for ten years;

• not convicted of an offense under INA §§212(a)(offenses that make one inadmissable), 237(a)(2) (criminal offenses) and 237(a)(3) (failure to register and falsification of documents);

• AND who prove that their removal would work an exceptional and extremely unusual hardship to their USC or LPR spouse, parent or child.

• The applicant must also prove that they deserve a favorable exercise of discretion from the Immigration Judge.

The main detriment to his means of getting one's permanent residency ("green card") is that one must be placed in Removal Proceedings in order to apply.  If Cancellation is not granted an no other form of relief is available an order of Removal will be issued by the Immigration Court.  An Appeal of Right may then be taken to the Board of Immigration Appeals, which can take one to five years to make a decision, but if that appeal is denied the only other avenue of relief would lie through the Federal Courts, an expensive and difficult option.

Physical Presence
Physical presence is achieved by entering the U.S. and staying here.  Constant travel out of the U.S. or leaving and remaining out of the U.S. for more than 90 days at any time terminates physical presence.  Applicants are required to prove their physical presence in the U.S. through means such as tax records, work history, lease agreements, government issued identification documents, birth certificates of children and through any and all official records and documents.

Good Moral Conduct
Good moral character is proved through general conduct.  The Immigration Judge will look to the number and nature of violations of Immigration Law committed by the applicant.  He will also look to violations of criminal law by the applicant.  There are a number of things that the applicant can do to make himself statutorily ineligible for this relief.  One is automatically ineligible for this relief if one is:

• a habitual drunkard;

• a polygamist;

• a protstitute;

• a smuggler;

• convicted of a crime of bad intent (called a "crime of moral turpitude");

• convicted of multiple crimes;

• convicted of a drug crime;

• admitted committing one of the above acts or crimes;

• one who derives income from illegal gambling;

• a person who has given false testimony for the purpose of receiving an immigration benefit;

• a person who was confined in prison for more than 180 days on any conviction;

• a person convicted of an aggravated felony committed after November 29, 1990.

Exceptional and Extremely Unusual Hardship
Congress made a change from "extreme hardship" to the current standard of exceptional and extremely unusual hardship in an effort to narrow the scope of persons eligible for this relief.  The Immigration Judge will look only to factors that effect the hardship to the United States Citizen ("USC") or lawful permanent resident ("LPR") close relative such as age of the relative the claim is based upon, family ties in the U.S. and abroad, length of residency in the U.S., conditions of health, conditions in the country to which the relative would depart (if necessary, such as in the case of a minor child of a deportable alien), immigration history, position in the community and other relevant information.

Decisions made in the past by the Board of Immigration Appeals (BIA) show that hardship occasioned by educational and health facilities in a foreign country not up to the standards of the U.S. is not automatically extreme hardship.  Separation from one's family has been noted as perhaps the most important hardship factor.  Immigration Judge's look not to any single factor, rather, all of the relevant factors are considered in the aggregate.  If hardship suffered by the USC or LPR relative is the same as hardship suffered by any child of any family leaving the U.S. for another country, extreme hardship will not exist.

Discretion of the Immigration Judge
Even if one proves that one's removal should be canceled under the above enumerated criteria, the Immigration Judge does not have to grant relief.  It would be important for an applicant to prove to the Immigration Judge that he or she would be an asset to the United States, and would not likely be a burden on the nation.

Conclusion
People come to me sometimes and they want to know if they should apply for cancellation.  As that can only be done while in Immigration Court, my answer to these people is always "wait."  If you are living well and not having a problem putting food on the table you do not have to apply for cancellation just because you may apply-it is a dangerous way to attempt to get residency.  If you lose, you will be ordered removed from the United States.  If you decide to evaluate your chances for this relief, meet with an immigration attorney so that they may help you review your chances.