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Cancelation of Removal

CANCELLATION OF REMOVAL:

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Generally


"Cancellation A", "Cancellation B", and asylum are broad, discretionary applications of human rights to immigration proceedings, where the equities outweigh the negatives of a claim. However, certain groups are ineligible, including:


  1. Noncitizens who failed to appear or failed to leave when given voluntary departure (for 10 years);
  2. Aggravated felons (unless relief is granted from DHS); and
  3. Anyone deportable on terrorist grounds.

 

There is no judicial review of cancellation, voluntary departure, and adjustment of status.

Cancellation A resumes LPR status, whereas Cancellation B grants LPR status. (If 10,000 visas not used up). It is best practice to set master calendar at the beginning of the INS year.

General crimes waiver for noncitizens seeking to adjust

This relief is not available to aggravated felons, or if seven years have not passed between admission and the expulsion proceedings.

 

Cancellation A  

Cancellation A is the discretionary form of relief from deportation available only to noncitizens with permanent resident status who do not all under one of the above exclusions from relief. In granting relief, the court balances the equities. To qualify, a noncitizen must have:

  1. Five years of permanent resident status, which is counted from the grant of such status by DHS to its end upon a final order of removal, which is the affirmation by the Board of Immigration Appeals (BIA) of a deportation order, or the time at which the filing for a BIA appeal lapses (permanent resident status gained by fraud does not count); and
  2. Seven years of continuous physical presence, beginning in any status, but with at least five of those years in permanent resident status.
    • The issuance of a Notice to Appear (NTA) brings continuous presence to an end, but not the years as a resident.
    • Continuous presence does not end when the noncitizen has a lapse in status, as long as thenoncitizen was admitted. For example, if the noncitizens enters in as a visitor, falls out of status, and then gains permanent resident status.
    • If a noncitizen enters without admission and then attains permanent resident status, continuous residency begins on the date that status began.

Cancellation A is not available to holder of J-1 or D-1 visas, or anyone else seeking to avoid the two-year abroad requirement, those for whom removal has previously been cancelled, and aggravated felons.

 

 

 

Cancellation B 

Cancellation Part B is the discretionary form of relief which replaced the former Suspension of Deportation. J-1s and D-1s are not eligible. All others must demonstrate:

  1. 10 years continuous presence;

Continuous presence ends when:

      • The issuance of a notice to appear or the date of an offense was committed; or
      • A single absence exceeds ninety days, or absences in aggregate exceed 180 days; or
      • The noncitizen takes voluntary departure.
  1. Exceptional and extremely unusual hardship to a spouse, parent or child who is a U.S. citizen or permanent resident; and
  2. Good moral character for the prior ten years (the same standard as for naturalization, which requires only five years). This can be negated by:
  1. Alcoholism;
  2. Gambling;
  3. Smuggling;
  4. False testimony under oath for benefits;
  5. Confinement for over 180 days due to a conviction;
  6. Specified criminal activities;
  7. Previous removal; and

Failure to pay taxes.

 

Back to Immigration Law


 
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