In U.S. immigration law, non-lawful permanent residents can get a Green Card through “Cancellation of Removal.” If you’ve lived in the U.S. for ten years, have good moral character, and meet other criteria, you can fight deportation and gain permanent residency. This Non-LPR cancellation of removal guide covers the eligibility and steps involved.
Eligibility Requirements
To qualify for Non-LPR Cancellation of Removal under INA § 240A(b)(1), applicants must meet several criteria:
- Continuous Physical Presence: Applicants must demonstrate at least 10 consecutive years of continuous physical presence in the U.S. This can be interrupted only by brief, casual, and innocent absences—specifically, no single absence exceeding 90 days or multiple absences totaling more than 180 days during those ten years.
- Good Moral Character: The applicant must establish good moral character (GMC) for the entire ten-year period leading up to the application. This includes showing no convictions for certain crimes that would disqualify them under sections 212(a)(2) or 237(a)(2) of the Immigration and Nationality Act (INA).
- No Disqualifying Convictions: Applicants cannot have been convicted of crimes involving moral turpitude, controlled substance violations, or other serious offenses outlined in the INA. Importantly, there is no time limit on when these convictions occurred; even past offenses can bar eligibility.
- Exceptional Hardship Requirement: Applicants must prove that their removal would cause “exceptional and extremely unusual hardship” to a qualifying relative who is a U.S. citizen or lawful permanent resident (LPR). This typically includes spouses, children, or parents. The hardship must be significantly greater than what would normally be expected from deportation.
Application Process
The process for applying for Non-LPR Cancellation of Removal is initiated during removal proceedings in immigration court. Key steps include:
- Filing the Application: Eligible individuals must file Form EOIR-42B along with supporting evidence to demonstrate they meet all eligibility criteria.
- The burden of Proof: The burden of proof lies with the applicant to show they deserve cancellation of removal, which is a discretionary remedy—meaning even if they meet all requirements, an immigration judge may still deny their application based on their judgment.
- Limited Annual Quota: There is an annual cap on Non-LPR cancellations, typically around 4,000 cases per fiscal year, making it a competitive process.
Continuous Physical Presence: A Decade in the U.S.
The foundational requirement for Non-LPR Cancellation of Removal is the demonstration of continuous physical presence in the United States for at least ten years. This clock begins ticking from the date of your initial arrival in the country. Importantly, it doesn’t need to be your most recent entry; it can be traced back to the day you established residency, as long as you haven’t exceeded a single absence of more than 90 days or cumulative absences totaling more than 180 days after that initial entry. Such prolonged absences can halt the clock, necessitating a restart in your pursuit of accumulating ten years.
Exceptional and Extremely Unusual Hardship: A Critical Component
Another crucial requirement is the ability to prove that your removal from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who must be U.S. citizens or lawful permanent residents (LPRs). This is a high bar to clear, as it demands evidence that the hardship endured by your qualifying relative(s) surpasses the typical challenges associated with deportation.
What Constitutes “Exceptional and Extremely Unusual” Hardship?
To grasp the concept of “exceptional and extremely unusual” hardship, it’s essential to recognize that standard hardship is a given in any deportation case. To qualify for Non-LPR Cancellation of Removal, the applicant must demonstrate that their relative’s suffering goes far beyond the ordinary difficulties endured when a close family member faces deportation.
For instance, evidence of a minor child’s severe illness and the absence of adequate medical care in the immigrant’s home country could constitute “exceptional and extremely unusual” hardship. Similarly, factors such as a prolonged history of living in the U.S., children who are not fluent in the language of the proposed home country, and the absence of a support network in the home country might also meet this stringent criterion.
Good Moral Character: A Decade of Upright Conduct
A fundamental element in the eligibility assessment for Cancellation of Removal is the requirement of “good moral character.” To qualify, an applicant must demonstrate ten years of sustained good moral character. Unlike the continuous presence requirement, the clock for good moral character doesn’t halt upon entering removal proceedings. It allows the applicant to count back from the date of the immigration judge’s decision or, in case of an appeal, the Board of Immigration Appeals (B.I.A.) decision.
Proving Good Moral Character
Proving good moral character involves presenting a compelling case that showcases positive attributes such as volunteer work, consistent employment, commitment to family, and rehabilitation following any prior convictions. These positive aspects can offset certain negative factors in the cancellation application.
However, certain actions can automatically disqualify an applicant from establishing good moral character, such as being a “habitual drunkard.” Additionally, if the law explicitly states that someone who committed a particular act cannot possess good moral character, or if the immigration judge deems other “discretionary factors” indicative of an applicant’s lack of moral character, the application may be denied.
Differentiating LPR Cancellation and Non-LPR Cancellation
It’s essential to differentiate between LPR (lawful permanent resident) Cancellation of Removal and Non-LPR Cancellation of Removal. The former does not necessitate the demonstration of exceptional and extremely unusual hardship, making it a more straightforward process. Instead, it requires meeting three basic requirements: five years as an LPR, seven years of continuous residence in the U.S., and an absence of aggravated felony convictions.
Annual Quota for Non-LPR Cancellation
Non-LPR Cancellation of Removal has an annual quota, with immigration judges being able to approve only 4,000 applications per year. This cap is often reached quickly, highlighting the importance of timely and well-prepared applications. Even if your application is approvable, the immigration judge cannot approve it without an available “number,” essentially a green card.
What Happens After Winning Your Cancellation of Removal Case
Upon winning your Cancellation of Removal case, the immigration court should issue an approval and provide instructions for registering for your green card. The path to permanent residency is within reach, marking the culmination of your efforts and the legal process.
The Importance of Legal Counsel
Navigating the intricate terrain of immigration law, especially when facing deportation, can be challenging. While legal representation is not mandatory, it can significantly tilt the odds in your favor. The U.S. government will have its attorney advocating for your deportation, placing you at a disadvantage without legal counsel. An experienced immigration attorney can help present the facts, build strong legal arguments, and guide you through the complexities of the process.
Challenges
Navigating Non-LPR Cancellation of Removal can be complex and challenging:
- Documentation of Hardship: Proving “exceptional and extremely unusual hardship” often requires substantial documentation, including financial records, medical documentation, and personal affidavits from family members or community members.
- Discretionary Nature: The discretionary nature of this relief means that outcomes can vary significantly based on individual circumstances and the presiding judge’s interpretation of the evidence presented.
In conclusion, Non-LPR Cancellation of Removal offers hope for those living in the U.S. without legal status. It can lead to a Green Card if you meet the strict requirements. The process is complex, so seeking legal help is crucial. By meeting eligibility criteria, showing exceptional hardship, and maintaining good moral character, you can work towards securing your future in the U.S. Consult an experienced immigration attorney for personalized guidance. With the right help and perseverance, this path can lead to a brighter future in the U.S.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel straightforward and successful. Whether you’re applying for Asylum Seekers, Work Visas (H-1B, L-1), or seeking non-LPR cancellation of Removal, we handle every step—from preparing your application to gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients with Non-LPR Cancellation of Removal. Call us today at +234 812 5505 986 to learn how we can assist you.
