CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS
INA §240A(a) allows the Attorney General to cancel the removal of a lawful permanent resident from the U.S. if:
- He has been an LPR for a minimum of five years;
- He has resided continuously in the U.S. for a minimum of seven years after being admitted to the U.S. in any status (prior to the institution of removal proceedings);
- He has not been convicted of an aggravated felony;
- He is not inadmissible from the U.S. on security grounds.
There are however, certain kinds of persons who are ineligible for cancellation of removal. Those include:
- Certain crewmen;
- Exchange visitors (in “J” status) who received medical training in the U.S.;
- Persons who have persecuted others;
- Persons who have previously been granted cancellation of removal, suspension of deportation (See below.) or relief under §212(c); and
- Persons who committed certain criminal offenses prior to the accrual of the required seven years.
There are certain factors the immigration court could take into consideration. The positive factors include:
- Family ties within the U.S.;
- Long time residency in the U.S.;
- Hardship to person and immediate family;
- Service in U.S. Armed Forces;
- Employment history;
- Ownership of property and business ties;
- Service to the community;
- Rehabilitation (if criminal record exists); and
- Good moral character.
CANCELLATION OF REMOVAL FOR NON-PERMANENT RESIDENTS
INA §240A(b) allows the Attorney General to cancel the removal of a non-permanent resident from the U.S. who:
Has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. “Continuous” means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- Has been a person of good moral character for ten years;
- Is not inadmissible under §212(a)(2) or (3), i.e. criminal and security grounds or deportable under §237(a)(1)(G), marriage fraud, (2) criminal grounds, (3) failure to register and falsification of documents or (4) security and related grounds.
- Whose removal would result in exception and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
NOTE: Only 4,000 persons may be granted cancellation of removal and suspension of deportation in a single fiscal year.
SUSPENSION OF DEPORTATION
Any expulsion proceedings commenced on or after April 1, 1997 are removal proceedings rather than deportation or exclusion proceedings. However, persons who were placed in deportation proceedings prior to April 1, 1997 as well as NACARA applicants may still be eligible for suspension of deportation. A deportable alien may apply for permanent residence through suspension of deportation if he is able to fulfill the following 3 conditions:
- He must have been continuously physically present in the U.S. for at least seven years. Absences which are “brief, casual and innocent” do not interrupt the continuity of the alien’s physical presence.
- He must be a person of good moral character.
It must be an extreme hardship upon the alien, or his spouse, children or parents who are citizens or residents of the United States if he were forced to leave the country.
We have substantial experience in all areas of removal defense. Contact the Office at (619) 255-7310.