What Are The Grounds for Cancellation of Removal?

What Are The Grounds for Cancellation of Removal?

If you’re not a legal permanent resident (LPR) of the United States, and you’ve been served with a Notice to Appear at a deportation hearing, then cancellation of removal is one of the avenues you and your immigration lawyer might be able to use to keep you in the country.

It is not a defense that applies to everyone. You must meet some fairly stringent requirements.

First, let’s talk about the most common form, known as a Non-LPR Cancellation of Removal.

This defense could work for you if:

You’ve been physically present in the United States for at least ten years, and you’ve acquired those ten years before your Notice to Appear was served. “Continuous” means no absence from the country has lasted longer than 90 days, and/or that the total of all of your absences does not exceed 180 days.
You’ve demonstrated good moral character for ten years.
You have no criminal record. While, theoretically, some convictions don’t apply under the law, the truth is any conviction can jeopardize your ability to use this defense.
You can demonstrate that deportation would cause “exceptional and extremely unusual hardship to your LPR or US Citizen spouse, child, or parent.”

It can’t work for you if:

You’ve already received a cancellation of removal, suspension of deportation, or INA relief.
You have persecuted others, or are inadmissible or deportable on anti-terrorism grounds.
You agreed to voluntary removal, unless you weren’t informed of your right to a court hearing.
You left the country under threat of deportation, no matter how long the absence was, even if you never knew about the order in the first place.
You meet certain rarer exclusionary criteria.

You will need to provide evidence that you meet all the criteria. For example, you’ll need to bring things like leases, medical records, and affidavits from friends and family members to show that you’ve been in the country for the requisite ten years.

Usually proving continuous presence isn’t the hard part, though. It can take a very skilled attorney to demonstrate undue hardship. There are pitfalls worked into the application process itself, such as answering the question of whether your loved one would come with you if you are deported. Sometimes there is no good answer to this question, as it could hurt you either way. You need someone who can help you develop a strategy, and who can help you make a good case for the answer you choose.

Gaining protection under the Violence Against Women Act (VAWA) is a little easier, if you qualify. If you have been the victim of domestic violence, you could be eligible if:

You have had a continuous presence in the United States for at least 3 years.
You have demonstrated good moral character.
You haven’t become inadmissible or deportable for reasons other than your immigration status (i.e. criminal activity).
The removal would result in extreme hardship for you, your child, or your parent.

To use this defense, you will first have to prove that you were a victim of domestic violence. Then, you’ll have to establish that you’ve met all the other requirements. As with standard LPR cancellation of removal defenses, you’ll need expert help to do this, especially as this form of relief is discretionary, which means a judge does not have to grant the cancellation of removal even if you do meet the requirements.

If you don’t qualify for either form of cancellation take heart; there may still be things we can do to keep you in the country. For example, victims of domestic violence may be able to qualify for other forms of relief which would allow them to apply for a VAWA visa.

Blog