Jorge had lived in the United States for fourteen years without legal status. He ran a small landscaping company, owned a truck, paid into Social Security, and has been raising his two young U.S. citizen daughters who had never known any country but this one. When immigration authorities caught up with him and placed him in removal proceedings, his wife broke down. His daughters, twelve and nine years old, couldn’t understand why their father might be taken away. His US citizen minor children would suffer extraordinary and very extreme hardship if he were deported, as he is the breadwinner of the family and his daughter is extremely ill and in ongoing medical treatment.
What Jorge and his family didn’t know, what many people in similar situations don’t know, is that there is a form of relief in immigration court specifically designed for people with his profile. It’s called cancellation of removal, and it has allowed thousands of long-term residents with deep ties to the United States to remain here legally, even after being placed in deportation proceedings.
What Is Cancellation of Removal?
Cancellation of removal is a form of relief from deportation available to certain individuals who are in removal proceedings before an immigration judge. If granted, cancellation of removal does two things: it stops the deportation and, for non-lawful permanent residents, results in the person being granted lawful permanent residence, a green card.
There are two distinct versions of cancellation of removal, with different eligibility requirements: one for lawful permanent residents (LPRs) and one for non-LPRs (undocumented individuals or those without permanent status).
Cancellation of Removal for Lawful Permanent Residents
If you already have a green card and have been placed in removal proceedings, for example, due to a criminal conviction, you may be eligible for cancellation of removal as an LPR if you meet all of the following requirements:
- You have been a lawful permanent resident for at least five years
- You have resided continuously in the United States for at least seven years after being admitted in any status
- You have not been convicted of an aggravated felony
If granted, you keep your green card. The immigration judge has discretion in deciding whether to grant cancellation, and the decision weighs factors such as the nature of the criminal conduct, your family ties, the length of your residence, and your contributions to the community.
Cancellation of Removal for Non-Lawful Permanent Residents
This is the version of cancellation that applies to undocumented individuals and others without permanent resident status who are in removal proceedings. It is harder to qualify for than the LPR version, but it remains one of the most powerful forms of relief available for long-term residents of the United States.
To be eligible for non-LPR cancellation of removal, you must meet all of the following requirements:
- You have been physically present in the United States for a continuous period of at least ten years before the Court issued a Notice to put you into Court
- You have been a person of good moral character during those ten years
- You have not been convicted of certain crimes that would make you ineligible
- Your removal would result in exceptional and extremely unusual hardship to a qualifying relative, a spouse, parent, or minor child, who is a U.S. citizen or lawful permanent resident
If granted, the individual receives a green card and lawful permanent resident status.
What Does “Continuous Physical Presence” Mean?
The ten-year continuous physical presence requirement is not simply a matter of having been in the United States for ten years. Certain events can interrupt the continuous period, most the issuance of a Notice to Appear (NTA) in immigration court, the document that officially places you in removal proceedings. This is known as the “stop-time rule.”
Under the stop-time rule, your continuous physical presence clock stops on the date USCIS or an immigration authority issues you a Notice to Appear. This means that if you have been here for eight years and receive a Notice to Appear, you will not reach the ten-year threshold for cancellation purposes, at least not based on your time before the NTA.
Because of the stop-time rule, the timing of when someone is placed in removal proceedings can have a profound effect on their eligibility for this relief. This is one of many reasons why speaking with an immigration attorney as early as possible, ideally before any enforcement contact, is so important.
What Is “Exceptional and Extremely Unusual Hardship”?
For non-LPR cancellation of removal, the hardship standard is deliberately high. The law requires that the applicant’s removal would cause exceptional and extremely unusual hardship to a qualifying family member, a standard that goes well beyond ordinary hardship.
Immigration judges look at a range of factors when evaluating hardship, including:
- The age, health, and particular vulnerabilities of the qualifying family member
- Whether U.S. citizen children would have to choose between leaving the country or separating from the parent
- Access to medical care, education, and safety in the country the applicant would be deported to
- The country conditions in the country of removal
- The extent of family members’ ties to the United States vs. the country of origin
- Economic hardship resulting from the loss of the applicant’s support
Proving exceptional hardship requires compelling, well-documented evidence. This is not a process to work through without experienced legal help.
How Many People Can Receive Non-LPR Cancellation Each Year?
Non-LPR cancellation of removal is subject to an annual cap of 4,000 grants per fiscal year nationwide. This is a relatively small number given the volume of immigration court cases across the country, and it adds a layer of uncertainty to an already difficult process.
Speak With a Chicago Deportation Defense Attorney Today
At JLB Law Group, deportation defense is at the heart of what we do. We have represented clients in removal proceedings before immigration courts and on appeal, and we have won cancellation of removal cases that others considered long shots. We understand how to build the hardship evidence, present a compelling case, and fight for our clients at every stage of the process.
If you or a loved one is in removal proceedings and has lived in the United States for a real period of time, do not assume the situation is hopeless. Contact our office today or reach out through our website to schedule a consultation. There may be more options available than you realize.
If you’re located in the Chicago area, our Evanston immigration lawyer team at JLB Law Group can guide you through cancellation of removal and other forms of deportation defense. You may also find our related article, How to Apply for Asylum in the United States, helpful.
Frequently Asked Questions
Does cancellation of removal give you a green card?
Yes. If an immigration judge grants cancellation of removal for a non-LPR, the person receives lawful permanent resident status, a green card. For LPRs, cancellation prevents deportation and allows them to retain their existing green card.
Can I apply for cancellation of removal if I have a criminal record?
Certain criminal convictions will make you ineligible, while others may affect the judge’s discretionary decision but not bar you entirely. The specific charges matter enormously. An immigration attorney can review your criminal history and advise on whether you remain eligible and how to best present your case.
What happens if cancellation of removal is denied?
If an immigration judge denies cancellation of removal, the judge will enter an order of removal. You have the right to appeal the decision to the Board of Immigration Appeals (BIA) and, if necessary, to the federal circuit courts. The appeals process can take months to years and may provide additional time in the United States while the appeal is pending.
Do I need to be in removal proceedings to apply for cancellation of removal?
Yes. Cancellation of removal is only available as relief in immigration court, it cannot be filed proactively with USCIS. If you are not yet in removal proceedings, there may be other immigration options available to you. An attorney can assess your situation and identify the best path forward.