Cancellation of Removal

Under certain conditions, immigration judges have the authorization to cancel an aliens removal or deportation from the United States.

Cancellation of Removal (Permanent Residents)

A lawful permanent resident (LPR) of the United States who is placed in removal proceedings has to meet the following requirements in order to be eligible for cancellation of removal:

1. Been lawfully admitted as a permanent residence for at least five (5) years;
2. Has resided in the United States continuously for seven (7) years after having been admitted in any status; and
3. Has not been convicted of an aggravated felony.

The term “aggravated felony” is misleading because often times the convictions were for crimes that are not “aggravated” nor felonies. Therefore, some misdemeanors may qualify as aggravated felonies.

The following are requirements that must be meet for a non-lawful permanent resident to qualify for cancellation of removal:

1. Been physically present in the United States for a continuous period of at least 10 years preceding the date of the application for cancellation of removal;
2. Has been a person of good moral character during the ten-year period;
3. Has not been convicted of any crime that can render him or her inadmissible or deportable; and
4. Establishes that removal/deportation would result in exceptional and extremely unusual hardship to his or her spouse, parent, or child who is a citizen or lawful permanent resident of the United States.

Congress has not defined the term “good moral character.” However the following activities have resulted in the finding of a person NOT of good moral character:

• Habitual drunkards;
• Persons who have engaged in prostitution, commercialized vice, and/or alien smuggling;
• Aliens previously removed;
• Aliens who have committed a crime involving moral turpitude or a controlled substance offense;
• Aliens suspected of being controlled substance traffickers;
• Aliens with multiple criminal convictions for which the sentence was a total of 5 years or more of confinement;
• Aliens with 2 or more gambling offenses or whose income is principally derived from illegal gambling;
• Aliens who have given false testimony for the purpose of obtaining an immigration benefit;
• Aliens confined to imprisonment for a total of 180 days or more during the period required of physical presence;
• Aliens who have committed an aggravated felony.

Crimes that will make an alien deportable or inadmissible are aggravated felonies and crimes involving moral turpitude.

Crimes Involving Moral Turpitude (CIMT) are those that are, in itself, morally wrong, as opposed to an act that is wrong simply because it is prohibited by law. These may include theft or fraud.

In the obtaining a cancellation of removal for a non-permanent resident the hardest obstacle is most often proving exceptional and extremely unusual hardship. The individual suffering the hardship must be the U.S. citizen or lawful permanent resident spouse, child or parent of the alien.

The following are some factors that are considered in determining exceptional and extremely unusual hardship:

• Age of the qualifying U.S. citizen or lawful permanent resident relative (young children or elderly parents);
• Very serious health issues;
• U.S. citizen child with special needs in school.

If you need more information on this or other immigration matters please contact the Carabin Shaw 800-862-1260 - toll free