New York Lawyer's Legal Updates

Cancellation Of Removal For Non-Permanent Residents

Author: US deportation lawyer Alena Shautsova

Cancellation of removal is one of the forms of relief (defense) from removal (deportation). There can be different types of cancellation of removal: for permanent residents, for VAWA beneficiaries, and for certain aliens covered by special laws, and for non- permanent residents. In this publication, we will discuss cancellation for non -permanent residents.

WHAT DOES THE LAW SAY?

Cancellation of removal for non-permanent residents may be afforded under INA 240A (b): CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NON-PERMANENT RESIDENTS.

(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien:

  • (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
  • (B) has been a person of good moral character during such period;
  • (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and
  • (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Usually, the Immigration Judge starts his/her analysis from whether a person statutory eligible for cancellation. For this, a person must:

  • NOT BE A PERMANENT RESIDENT (UNLAWFUL STATUS, or EWI still qualify for cancellation); and
  • A PERSON HAS BEEN PRESENT CONTINUOUSLY IN THE US FOR NOT LESS THAN 10 YEARS : that is a person was in the US 10 years prior to service on him/her Notice to Appear, and the person had not left the country for longer than 90 days at a time, or 180 days all together. The statue does not purport to be the exclusive rule respecting all departures. See Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002). Continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in § 240A(d)(2). Id.
  • A PERSON IS ONE OF A GOOD MORAL CHARACTER; and
  • A PERSON HAS NOT BEEN CONVICTED OF DEPORTABLE AND INADMISSIBLE OFFENCES; and
  • CAN ESTABLISH THAT THERE WILL BE AN EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP CAUSED TO A QUALIFYING RELATIVE (spouse, parent or child).

An important factor regarding cancellation of removal is that it is a DISCRETIONARY RELIEF. It means that the Immigration Judge (the IJ) does not have to but may grant this relief. If a person establishes that he may satisfy all the statutory requirements, the IJ will further exercise his/her discretion and determine if the person deserves to be granted permanent resident status in the United States.

If you have immigration concerns, consult a skilled New York deportation lawyer at 917-885-2261 and find out about your options.

13 November 2012
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