What is Cancellation of Removal?

 Posted on July 15, 2015 in Immigration

When you or a loved one is involved in deportation proceedings, you may be ready and willing to try any possible avenue to keep your loved one in the country. Cancellation of removal—a last-ditch option that many apply for simply as a proverbial Hail Mary—may actually be the best possible fit for some cases.

History and Definition

Cancellation of removal is defined by United States Citizenship and Immigration Services (USCIS) as an immigration benefit that can be granted by an immigration judge, and adjusts one’s status from deportable to that of a permanent resident alien. Still, it may only be granted to one who is in deportation proceedings, and more than a bit of the final determination is based on a judge’s discretion.

Cancellation of removal has only existed in its current form since April 1997, when the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) was passed. Before that date, a similar procedure— suspension of deportation—existed. However, suspension of deportation did not differentiate between documented and undocumented immigrants, and the standard one had to meet was markedly lower.

LPR vs. Non-LPR

Cancellation of removal is available, at least in theory, to any individual who is in deportation proceedings, but there are different criteria set out for lawful permanent residents (LPRs, or “green card” holders) and everyone else to meet. The rationale is that LPRs have already had to prove various factors, such as their good moral character, when applying for that status. So, unless something has fundamentally changed, there is no need to require proof of it a second time.

The criteria that must be met for LPRs to have a chance at cancellation of removal are set out in the Immigration and Nationality Act (INA), §240(A). There are only three: (1) an alien has been an LPR for no less than 5 years; (2) he or she has resided in the U.S. continuously for at least seven years in any status; and (3) he or she has not been convicted of an aggravated felony, which is a crime held to have specific immigration weight due to its involving deception or exceptional violence.

The criteria, by comparison, for non-LPRs is somewhat more involved:

• The person must have continually resided in the U.S. for at least 10 years;

• He or she must have had good moral character during that time;

• He or she must not be subject to any kind of bar that renders him or her inadmissible (‘inadmissible’ means that he or she was never properly admitted to the U.S., while ‘deportable’ means that he or she was lawfully admitted and then did something to no longer be welcome); and

• He or she must be able to establish that his or her deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR parent, spouse or child.

The latter is by far the most difficult tenet of cancellation requirements to meet. This standard is unbelievably high, and the hardship must specifically apply to one or more of the people delineated in the statute. There is also a large amount of judicial discretion in determining exactly what would constitute such a hardship—for some, a condition like a disability requiring care has been shown to be enough; for others, only factors like terminal illness have been found severe enough.

Do Not Try to Go it Alone

With so many subjective factors, attempting to apply for cancellation or other relief from deportation on your own can be extremely difficult. An experienced immigration attorney can make all the difference in the world. The skilled Chicagoland immigration lawyers at Mevorah & Giglio Law Offices are both knowledgeable and compassionate, and can guide you through the difficult process while giving you the best chance possible to succeed. Contact us today for a free consultation.