Immigration Court and removal proceedings. These are two phrases that a non-U.S. Citizen never wants to hear or be confronted with. However, for a Permanent Resident or an individual without status, being placed in removal proceedings does not mean that you will be deported. One way to remain in the United States is through an application called Cancellation of Removal.
There are two forms of Cancellation of Removal, one for those who are in Lawful Permanent Resident status and one for those with no status in the United States. The requirements for both are different, but the result is the same if the case is granted: Lawful Permanent Resident Status in the United States.
Cancellation of Removal for Permanent Residents (42A) is available only to individuals who are already Permanent Residents in the United States. To be eligible for this form of relief, the applicant must prove:
- Applicant was a Lawful Permanent Resident for at least five (5) years;
- Prior to service of the Notice to Appear, the Applicant resided continuously in the United States at least seven (7) years; and
- Never been convicted of an aggravated felony.
Once all three of those are proven, the Immigration Judge must balance a person’s good characteristics versus their bad past actions. Some of the good characteristics an Immigration Judge looks at are: payment of taxes, payment of child support, family ties to the United States, any volunteer activities, etc. When an Immigration Judge decides to grant the case, the Applicant retains their Lawful Permanent Resident status and the government cannot restart removal proceedings based on the same actions contained in the Notice to Appear.
Cancellation of Removal for Certain Non-Permanent Residents (42B) is available to those without status in the United States, who either entered the United States without inspection or overstayed their visa. To be eligible for this form of relief, the applicant must prove:
- Prior to the service of the Notice to Appear, the Applicant resided in the United States continuously for at least the past ten (10) years;
- The Applicant is a person of good moral character;
- The Applicants removal would result in exceptional and extremely unusual hardship to a U.S. Citizen or Lawful Permanent Resident spouse, parent or child; and,
- The Applicant warrants a favorable grant by the Immigration Judge.
If the Immigration Judge believes that an Applicant has proven all four of the above, then the Immigration Judge will reserve decision and place the Applicant in line for Lawful Permanent Resident status. In this type of case, there are only 4,000 Lawful Permanent Residencies available per year. Therefore, since there are more applicants than available residencies, there is a wait in order to receive status. However, once the Immigration Judge can make a decision, if the judge grants the case the applicant becomes a Lawful Permanent Resident.
No matter which form of Cancellation of Removal an individual applies for, it is a form of relief that is only available at once. Once Cancellation of Removal is granted, it cannot be used as the form of relief in a subsequent removal proceeding.