Whether an undocumented immigrant or a lawful permanent resident is in removal proceedings, showing years of good conduct in the U.S. can work as a defense.
By Maud Poudat
A foreign national in the U.S. who is either a lawful permanent resident (LPR) or in some other status (or has no immigration status at all), and who is placed into removal (deportation) proceedings and charged under either Section 212 or Section 237 of the Immigration and Nationality Act (I.N.A.) might be able to fight deportation by filing an application for what's called "cancellation of removal." (See I.N.A. §§ 240A(a) and (b).)
Such an application can serve to waive certain immigration violations, depending on which immigration status the foreign national holds in the United States. If successful, it might allow the person to not only remain in the U.S., but keep or obtain a U.S. green card (LPR status).
Cancellation of Removal for Lawful Permanent Residents (Green Card Holders)
An LPR can file for cancellation of removal if the person has:
- been an alien lawfully admitted for permanent residence for not less than five years
- resided in the United States for seven years after having been admitted in any status, and
- not been convicted of an aggravated felony.
Meeting the Time Requirements for LPR Cancellation of Removal
An LPR applicant with five years of U.S. permanent residence who is in removal proceedings because of one or multiple criminal convictions, none of which is considered an aggravated felony, may ask to waive those offenses via a cancellation of removal application. (See I.N.A. §101(a)(43) for definition of aggravated felony.)
The five years' required time spent as an LPR will be cut off on the date of filing the application. However, the required continuous presence of seven years for an LPR ends when the person is served with a Notice to Appear (NTA), or when the person has committed an offense that makes him or her inadmissible to the U.S. or removable from the United States, whichever happens earliest.
Let's say Victor was served with an NTA on January 29, 2023, after having been convicted of a controlled substance offense: namely a single conviction for possession of cocaine, to which he pled no contest on September 13, 2021. Victor had been arrested for this offense on January 3, 2021. He had entered the United States on July 15, 2014 as a legal permanent resident, having been sponsored by his father.
Victor is not eligible to apply for cancellation of removal, since he has not accrued seven years of continuous presence in the United States. The period of continuous presence starts from the date Victor entered the United States as a permanent resident (July 15, 2014) and ends on the date of the commission of the crime (January 3, 2021). He is just short of the seven years required by the law for cancellation eligibility.
Now let's say Victor entered the U.S. without inspection but was granted asylum on June 16, 2013 and then obtained his green card on July 15, 2017. The period of continuous presence would start as of June 16, 2013, the date when Victor was admitted as an asylee. Victor would then be eligible to apply for cancellation of removal, since he would have accrued at least seven years of continuous residence in the United States by the time of his January, 2021 crime.
There are added restrictions concerning the physical presence requirement, related to breaks in the continuity of the person's physical presence in the United States. Departing for any period over 90 days at a stretch or more than 180 days added together will break one's continuous residence or continuous physical presence in the United States.
The continuous presence requirement does not apply to a foreign national who has served for a minimum of 24 months in an active-duty status in the U.S. Armed Forces, and was (if applicable) separated under honorable conditions, provided that at the time of the foreign national's enlistment or induction, the person was in the United States.
Showing Positive Equities in Favor of a Grant of LPR Cancellation of Removal
Once the Immigration Judge (IJ) has determined that the foreign national meets the basic eligibility requirements for cancellation of removal, the IJ will weigh the positive equities against the negative factors, for instance criminal convictions and any other adverse factors.
The applicant should try to demonstrate having:
- close family relatives in the United States who would suffer hardship if the foreign national were removed from the U.S. (although not a requirement)
- family ties in the United States
- a history of longtime residence in the U.S.
- positive employment history and payment of taxes,
- business or property ties in the U.S., and
- that he or she has been rehabilitated and is of good moral character.
The IJ can also take into account other favorable factors, such as the applicant's age at the time of U.S. entry, conditions in the country to which he or she would be removed, ties to the country of removal, probable financial impact of departing from the U.S., significant health conditions (particularly if suitable medical care in the country to which the person would return is unavailable), and, lastly, the possibility of other means of adjustment of status or future entry into this country.
By weighing all the positive factors against the negative factors, the IJ will decide whether to grant or deny the application for cancellation of removal.
If the IJ grants the relief, the applicant's convictions will no longer subject him or her to deportation, and he or she will be restored to LPR status as of the date of initial LPR admission to the United States. This is, however, a one-time deal. The same applicant will not be able to apply again in the future if he or she commits another deportable offense.
Cancellation of Removal for Non-Permanent Residents
To receive cancellation of removal and adjustment of status as a non-permanent resident, including an undocumented person, that person must:
- have been physically present in the U.S. for a continuous period of not less than ten years immediately preceding the application date
- been a person of good moral character during such period
- not been convicted of an offense under I.N.A. § 212(a)(2), 237(a)(2), or 237(a)(3) (except in a case described in Section 237(a)(7), where the Attorney General exercises discretion to grant a waiver), and
- show that removal would result in exceptional and extremely unusual hardship to the applicant's spouse, parent, or child who is a citizen of the U.S. or an LPR.
Meeting the Time Requirements for Non-LPR Cancellation of Removal
The continuous physical presence has the same stop-time rule as the continuous residence requirement for LPRs described above. The person's continual presence will legally end with the issuance of a Notice to Appear or the commission of a crime that renders the person inadmissible to or removable from the United States, whichever happened earliest. Similarly, the continuous physical presence is cut off by any trips outside the United States in excess of 90 days or for any periods in the aggregate exceeding 180 days.
Let's assume that Victor entered the U.S. without inspection in Laredo, Texas in January 2014. He has been in the United States ever since. His notice to appear was issued on December 2023. He is therefore not eligible to apply for cancellation of removal as a non-permanent resident, since he is short of the required ten years.
Meeting the Good Moral Character Requirement for Non-LPR Cancellation of Removal
When an applicant is convicted of a crime that is not included in the sections mentioned above, that particular crime may make him or her ineligible to apply for cancellation of removal as a nonpermanent resident, since the applicant may not fulfill the good moral character requirement. Whether a crime renders the person ineligible for lack of good moral character will depend on the Immigration Judge's evaluation of the seriousness of the offense, as well as pertinent case law.
Meeting the Extreme and Unusual Hardship Requirement for Non-LPR Cancellation of Removal
One of the most difficult requirements in a cancellation of removal case for a non-permanent resident is the extreme and unusual hardship requirement. The person not only is required to have a qualifying relative such as a child, spouse, or parent who is a legal permanent resident or citizen of the United States, but also to demonstrate that his or her removal would cause hardship to that qualifying relative. And not just any hardship. It must rise beyond the normal hardship expected in a case of removal, such as the emotional pain of separation, or financial difficulty.
Such hardship can most readily be proven when the applicant's qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant's native country.
Bring in Witnesses to the Court Hearing
Whether the foreign national is a permanent resident or nonpermanent resident applying for cancellation of removal, the use of witnesses is highly recommended in addition to providing a variety of documentation reflecting the positive factors listed above. Particularly if the person holds a respected position, such as in a school or place of worship, the testimony can add both credibility and be an opportunity to hear angles on the story that the judge might otherwise overlook.
Talk to an Immigration Attorney
Hiring an experienced attorney to represent a foreign national placed in removal proceedings is highly encouraged and greatly improves the chances of success in getting an application for cancellation of removal granted.
