Cancellation of Removal

 Posted on October 10, 2018 in Immigration

Sometimes, someone seeking a way to stay in the U.S. may have nothing tangible to rely on. They may not qualify for Deferred Action for Childhood Arrivals (DACA) or have a valid asylum claim, and they cannot adjust status because of a criminal record or because they arrived in the country as an undocumented immigrant. In these types of situations, especially if you are in removal proceedings, the best option that may be available is called cancellation of removal. It will not work for everyone, but it may be a possible method by which you or a loved one can remain in the United States.

Mostly For LPRs

Cancellation of removal is a form of deportation relief that is almost entirely discretionary, meaning that the immigration judge in charge of your case can choose whether or not to exercise it. This is markedly different from other methods of relief, which are usually codified in the law - for example, the Violence Against Women Act (VAWA) explicitly contains language allowing some abuse victims to adjust status to that of a green card holder if they can prove certain facts about their mistreatment. Cancellation of removal is sometimes called prosecutorial discretion, even though it is most often judges (not prosecutors) who are able to use it.

Cancellation of removal is available most often to people who are lawful permanent residents (LPRs), or in other words, green card holders. The Attorney General may exercise their prerogative to cancel the removal of any green card holder who has (1) resided in the U.S. for at least 7 years while in legal status; (2) has been an LPR for at least 5 years; and (3) has not been convicted of any aggravated felony - in other words, does not have a major criminal record.

“Exceptional & Extremely Unusual”

While cancellation of removal is most often granted to LPRs, it is possible to receive it without being a permanent resident. However, the bar is much higher, and correspondingly, the number of cases that are successful is far, far smaller. There are three criteria that a non-permanent resident must meet before they can be granted cancellation of removal: (1) continuous residence in the U.S. for the past ten years; (2) must be able to show good moral character (no criminal record, and are not subject to any bar or inadmissibility stemming from a criminal record); and (3) are able to establish that removal would result in “exceptional and extremely unusual hardship” to the person’s U.S. citizen or LPR spouse, parents or minor children.

The latter is the most difficult aspect of the criteria to show, as this standard is higher than the usual financial or emotional hardship that separation would cause. For example, one of the situations which normally does meet this standard is when the qualifying relative has a serious medical condition for which treatment does not exist (or meet the standard) in the person’s home country. The “exceptional and extremely unusual” standard almost always requires life and death issues, and even then, sometimes your case may be denied.

Seek Immediate Legal Help

Whether through cancellation or another method, it is possible to avoid deportation as a non-permanent resident. However, it is highly recommended to attempt it with an attorney on your side. The dedicated DuPage County deportation defense lawyers at Mevorah & Giglio Law Offices are happy to try and assist you with your case. Call us today at 630-932-9100 to schedule a free consultation.