CANCELLATION OF REMOVAL
Cancellation of Removal
Cancellation of Removal is a defense available only in deportation. Therefore, in order for a person to invoke the defense, first there must be a deportation case pending. Many clients refer to this program as the “10-year” law. Why call it the 10-year law? Because one of the requirements is that an immigrant has lived in the US for 10 years. Whereas for permanent residents the requirement is only 7 years.
The program is codified in 8 U.S. Code § 1229b – “Cancellation of removal; adjustment of status”
Cancellation of Removal Requirements for Permanent resident
Being a green card holder for not less than 5 years, who has resided in the United States for at least 7 years , and who has not been convicted of an aggravated felony.
Cancellation of Removal Requirements for Immigrants
Must have lived in the US for not less than 10 years. In addition be a person of good moral character who is not convicted of certain crimes. And the removal would cause extreme hardship to a spouse, parent, or child, who is a US citizen or a green card holder.
The big difference between in the eligibility requirements is that for permanent residents, there is no need to establish hardship on a relative. Another difference is the continuous presence which is 7 years for LPRs and 10 years for immigrants.
What cuts of the 10 year physical presence?
The initiation of the deportation case cuts of the 10- year period. If ICE detained you at the US-Mexico border before having 10 years in the country, you will not be eligible. If you had an order of removal from year one in the US, even 20 years later, you would still not be eligible.
The commission of certain crimes also cuts of the 10 years period.
What is Extreme and Extremely Unusual Hardship in Cancellation of Removal cases?
What could be considered extreme and unusual hardship?
Cultural Hardship (not speaking the language of the respondent’s country of origin)
Cumulative Impact on Multiple Qualifying Relatives ( if the respondent can establish cumulative hardship on two or more relatives – e.g. a child who suffers from anxiety and another child who suffers from depression)
Financial Hardship – a respondent is a parent whose USC spouse has not worked for many years, and the respondent is the sole provider for her 4 USC children
Medical Hardship – when a U.S. citizen child or spouse suffers from any serious decease and requires medication, monitoring and or therapy.