Being placed in removal proceedings can be an overwhelming and scary prospect; however, it’s important to know that most people have options. Some options are better than others; however, with the help of an immigration attorney, many people can find an alternative to taking a deportation order.
One defense to deportation that is also a path to lawful permanent residency is Cancellation of Removal for Non-Permanent Residents. (For Permanent Residents there’s Cancellation of Removal for Permanent Residents, which you can read about here). If you win your case, you will become a lawful permanent resident.
The rules for Non-LPR Cancellation of Removal are found at INA §240A(b)(1) and are as follows.
Physical Presence
The applicant must have been physically present in the United Stets for at least ten years preceding the date of application. The ten years begins on the date you arrived in the United States and ‘stops’ on the date that the ‘Notice to Appear’ (NTA) is issued. The NTA is the document that starts the removal case. Other things that can ‘stop’ the clock are committing certain crimes and spending too much time outside of the United States. Having a single absence of more than 90 days outside of the United States, or total absences of 180 days outside of the United States will break your physical presence.
Good Moral Character
The applicant must have been a person of good moral character for the previous ten years. Typically, this means that you have not been convicted of certain crimes; however, there are ways that you can actively try and improve your good moral character.
Certain Convictions
The applicant must not have been convicted of:
- A crime involving moral turpitude; OR
- A crime relating to a controlled substance; OR
- Certain deportable offenses.
If you’ve been convicted of a CIMT that falls under the ‘petty offense exception,’ you will still be eligible for non-LPR cancellation.
Exceptional & Extremely Unusual Hardship
The applicant must show that his or her removal would “result in exceptional and extremely unusual hardship” to their U.S. citizen or lawful permanent resident spouse, parent, or child. If relying on hardship to a child, only children who are under 21 and unmarried, on the date the decision is issued, will be considered.
Showing exceptional and extremely unusual hardship is difficult. Every family suffers hardship when a loved one is removed from the United States. You must show how your loved one will suffer hardship beyond what a family would typically suffer. Exceptional and extremely unusual hardship can be shown through one event- for example, an extremely sick child who would be unable to find adequate medical care in your country of origin. Or, hardship as a totality of all of their life circumstances.
Annual Numerical Limits
Immigration judges can only approve 4,000 non-LPR cancellation cases per year, nationwide. This means that if the immigration judge is going to approve your case, s/he may not be able to this year. Every year new numbers are ‘available’ on October 1st, so if the judge cannot approve your case this year due to the unavailability of numbers, s/he will approve your application next year.
If you or a loved one has been placed in removal proceedings, please contact an immigration attorney who is trustworthy and knowledgeable about possible defenses to deportation! Our attorneys at Landerholm Immigration, APC, have extensive experience in defending removal cases. Please feel free to call us at (510) 491-0291 to see how we can help!