Cancellation of Removal, as the term itself suggest is a form of relief available to an Alien in Removal Proceedings upon meeting certain standards set for the grant of such relief.
Cancellation of Removal is available to both Lawful Permanent Residents (LPRs)/Green Card Holders, who are placed in removal proceedings, and those who are not Legal Permanent Residents (non LPRs), but in removal proceedings.
In this Article we will talk about the Cancellation of Removal for the Aliens who are not Legal Permanent Residents (non LPRs) or in other words do not have any green card.
Cancellation for non green card holders has two different set of rules. Out of these two sets of rules/standards one is specifically available to the victims of domestic violence under Violence Against Women Act (VAWA), and the other is available to all those who meet the general standard for the relief. For the purpose of this column we will divide these groups into general non LPRs and those who are victims of domestic violence
Cancellation of Removal for Non LPRs:
First of all it is important to understand that this form of relief becomes available only when someone is in removal proceedings. Now the question is who is eligible for the relief? For the non LPRs the criteria of eligibility is as follows:
To be eligible for this relief, individuals must establish that:
* They have been physically present in the United States for a continuous period of not less than 10 years immediately preceding their application for relief;
* They have had good moral character during the 10-year period prior to the entry of final administrative decision in the case;
* They have not been convicted of an offense that would make them inadmissible or deportable; and
* Their removal would result in exceptional and extremely unusual hardship to the foreign national’s USC or LPR spouse, parent or child
It is important to notice that the 10 year period of physical presence is calculated differently than that of good moral character. The 10 years period needed for good moral character is calculated backward from the date on which the application finally is resolved by the Immigration Court or the Board of Immigration Appeals. On the other hand, the count of 10 year period of physical presence ends at the time of initiation of the removal proceedings or at the time or when the alien commits an offense making him/her inadmissible or deportable because of a criminal conviction.
In other words, the foreign national generally must have accumulated the required period of continuous residence or physical presence prior to the initiation of removal proceedings, and prior to commission of a deportable offense.
In addition as listed above the non LPR must have a qualifying relative i.e. a US citizen or Green Card holder parent, spouse or child who will be subjected to exceptional and extremely unusual hardship if the alien is removed from U.S.
Non-LPRs are ineligible for cancellation of Removal if any of the following applies in their case:
* They entered the United States as a crewman after June 30, 1964;
* They were admitted as an exchange alien or acquired such status in order to receive graduate medical education or training;
* They were admitted or acquired exchange alien status for other purposes, but were subject to the two-year foreign residence requirement and failed to fulfill that requirement or (have it waived);
* They are inadmissible or deportable under the security and related grounds;
* They ordered, incited, assisted, or otherwise participated in the persecution of others; or
* They previously were granted cancellation of removal, suspension of deportation, or a 212(c) waiver.
VAWA Cancellation of Removal:
We will now talk about Cancellation of Removal for victims of domestic violence as the criteria of relief set for them is very different than what we described above. The Cancellation of Removal for victims of domestic violence is termed as VAWA Cancellation of Removal. While the relief was created under Violence Against Women Act (VAWA), the relief is available to both men and women.
The following persons are eligible to apply for VAWA cancellation and suspension:
* Abused spouses of USCs and LPRs;
* Abused sons and daughters of USCs and LPRs;
* Non-abused parents of abused children of USCs or LPRs, even if not married to the abuser; and
* Abused intended spouses of USCs or LPRs. The term intended spouse means a foreign national who believed that he or she married a USC or LPR and went through a marriage ceremony, but whose marriage is not legitimate solely because of the USC’s or LPR’s bigamy
To be eligible for this relief, law provides that the applicant for VAWA cancellation of removal must:
* Have been present physically in the United States for three years before applying;
* Be a person of good moral character during the period of physical presence;
* Not have been convicted of an aggravated felony;
* Not be inadmissible or deportable due to certain criminal, security, or marriage fraud violations;and
* Demonstrate that removal would result in extreme hardship to the applicant, or the applicant’s child, or in the case of an applicant child, to the applicant’s parent.
VAWA cancellation does not require that the applicant needs be currently married to the abuser or demonstrate a good faith marriage. However, it is always better to have evidence of a good faith marriage, since a finding of having entered into a fraudulent marriage would make the applicant ineligible.
Also, the parent who has an abused child in common with the USC or LPR abuser is not required to have been married to the abuser.
This article provides the very basic information about the subject. If any of the reader feels that you may be eligible for any of the above type of cancellation relief, it is important that you have your case evaluated by an Immigration Attorney. Cancellation of Removal is a complex process and is better handled by an expert.