Cancellation of Removal under Section 240A of the Immigration and Nationality Act

Cancellation of removal allows a person present in the US out of status to adjust that status to that of a permanent resident without being removed from the country by meeting certain baseline requirements. The decision to cancel a removal order is that of an immigration judge and it is solely in the immigration judge’s discretion whether to allow for the cancellation of removal or not.

At the point that an alien has been ordered removed by the Immigration Court or the Board of Immigration Appeals (BIA) by way of a Notice to Appear (NTA), he or she may seek relief by applying for a cancellation of removal. This is made possible by Section 240A of the Immigration and Nationality Act (INA) and, if granted, the alien may keep permanent resident status or, at the very least, the removal is cancelled. The alien who is potentially being removed from the country must file a form EOIR-42B during the removal proceedings with the immigration court with the correct filing fees.

Eligibility Requirements to File an EOIR-42B

In order to be eligible for a cancellation of removal, a nonpermanent resident (an alien who is otherwise inadmissible or deportable ) must establish the following:

• Physical presence in the US for a continuous period of 10 years before receiving the notice to appear before the Immigration Court or the BIA
• Good moral character while present  in the US
• No criminal convictions for offenses listed in Section 212(a)(2) or 237(a)(3) of the INA
• Evidence that the alien’s family members in the US would suffer from an exceptional and unusual hardship of the alien were to be removed. This does not apply to the hardship that any person would experience by having a family member removed from the country.

Other means can be used to qualify for a cancellation of removal as well. In order to qualify outside of the above requirements, the following must be shown:

• The petitioning alien or the said petitioning alien’s child was battered or subjected to extreme cruelty by the alien’s US citizen or LPR spouse or parent.
• The alien was continuously in the US for the three years prior to receiving the notice to appear.
• The alien has been of good moral character for these three years prior to receiving the notice to appear.
• The alien is not ruled to be inadmissible under Section 212(a)(2)-(3) or is not deportable under Section 237(a)(1)(G)(2)-(4) of the INA
• There has been no aggravated felony committed
• Removal would cause extreme hardship to the alien or to the alien’s child (who is also the child of a US citizen or LPR)
• If the alien is a minor, removal of the alien would cause extreme hardship to the alien or to the alien’s parents.

In considering whether or not cancellation of removal is appropriate, the immigration judge will consider the following:

• Length of residence in US
• Relationships in the US to family members or communities
• Service work in the community
• Work with clubs, civic groups or religious organization
• Language ability in the country where the alien would potentially removed to
• Work history in the US
• Timely filing and payment of taxes while in the US
• Acceptance of responsibility for any crimes committed, if applicable
• Proof of rehabilitation in cases where moral character had been called into question

Past Criminal Convictions may affect application eligibility

Certain criminal convictions called crimes involving moral turpitude will negatively impact the cancellation of removal application.  Because moral character is an important factor for the immigration judge to consider in granting the cancellation of removal application, past criminal convictions are highly relevant.  Applicant for cancellation of removal who have criminal convictions should obtain a list of their convictions and certified disposition documents from the state or federal court where they were convicted.  For more information regarding the impact of criminal conviction on cancellation of removal application, please refer to the discussion of the stop-time rule.

If you have criminal conviction, schedule a free consultation with immigration attorney to discuss the ramifications of those convictions as they relate to the cancellation of removal application.

Appeal Immigration Judge’s Decision

An immigration judge’s decision to deny the application for cancellation of removal may be appealed to the Board of Immigration Appeals, or to the appropriate Federal District court or even the Federal Circuit Appellate Courts.  Generally, appeals must be filed within small window of time after the application is denied by the immigration judge.  Depending on the type of appeal, a new decision may be several months later.

Immigration Attorney Assistance with Cancellation of Removal

To retain my office to represent you in immigration court for cancellation of removal, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation are open 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.