Cancellation Of Removal
If you or a family member are facing removal from the United States as an immigrant, there is a process called cancellation of removal, which can prevent deportation. Cancellation of removal requires meeting certain criteria, and it’s not automatically granted. It’s best to work with an experienced immigration attorney when seeking cancellation of removal.
To see if you or your loved one qualifies for cancellation of removal, contact Yemi Getachew Immigration Law Office P.C. today. You can phone us at 408-292-7995 or reach out online to schedule a consultation right away.
What Is Cancellation of Removal?
Cancellation of removal is a process by which someone who was scheduled for removal has their status changed from deportable to lawfully admitted for permanent residence. This is a discretionary benefit that is not automatically granted.
Cancellation of removal must be requested during a removal hearing. The immigration judge overseeing the hearing decides whether or not to cancel removal. Since this process happens in a courtroom, it’s best to work with an attorney who understands the protocol and can present the best case for remaining in the US to the judge.
What Are the Criteria for Cancellation of Removal?
There are different requirements an immigrant must meet to be considered for cancellation of removal, based on their current immigration status. You must meet every criterion listed below for your immigration category in order to be granted cancellation of removal, and then it is still up to the judge.
Lawful Permanent Residents (AKA Green Card Holders)
- Has been a lawful permanent resident (green card holder) for a minimum of five years
- Has lived continuously in the United States for seven years or more following lawful admission
- Has not been convicted of an aggravated felony
It’s important to note that the term “aggravated felony” is more broadly interpreted for immigrants than US citizens in many cases. Crimes that may be otherwise considered misdemeanors are sometimes charged as felonies.
Non-Permanent Residents (Non-LPR)
- Has had a continuous physical presence in the US for a minimum of 10 years or served for two years of active service in the US military
- Has been a person of good moral character during this time
- Has not been convicted of any offense that would make the immigrant removable, such as aggravated felonies
- Can show that removal would create extreme hardship for the immigrant or the immigrant’s immediate family (children, parents, or spouse) who are either US citizens or lawful permanent residents of the US
The term “extreme hardship” is not defined and is determined on a case-by-case basis.
Lack of “good moral character” can be found if an immigrant meets any of these criteria:
- Has been convicted of murder at any time
- Has been convicted of an aggravated felony at any time since November 29, 1990
- Has been convicted for possession of a controlled substance in a foreign country or the US, unless the conviction was for simple possession of 30 grams or less of marijuana
- Has been convicted and sentenced to 180 days or more in prison
- Has testified falsely to obtain immigration benefits
- Has been involved in prostitution
- Has been convicted of two or more offenses related to gambling
- Has participated in human trafficking
- Has been or is a habitual drunkard
Non-Permanent Residents Who Are Victims of Domestic Abuse
- Has had a continuous physical presence in the US for at least three years
- Has been a person of good moral character (see list above)
- Has not been deportable or inadmissible according to immigration laws for a range of offenses (marriage fraud to aggravated felonies)
- Can demonstrate removal would constitute extreme hardship for the immigrant or the immigrant’s child of a lawful permanent resident or US citizen
- Can demonstrate removal would constitute extreme hardship for the immigrant or their parent because they are a child
- Deserves a favorable exercise of discretion on the part of the immigration judge to grant the application for cancellation of removal
What Are Some Common Complications to Cancellation of Removal?
Being granted cancellation of removal is not as easy as it may first seem. There are many gray areas where an immigrant may suddenly find themselves unable to qualify for this discretionary benefit:
- Definition of “good moral character” as described above
- Definition of “aggravated felony” as described above
- Failure to demonstrate removal would constitute a hardship for the immigrant or their family members
- Failure to prove relationship to a qualifying family member
- Previous history of inadmissible status
- Interpretation of “continuous physical presence in the US”
Some immigrants believe they have maintained a continuous presence in the US for the required amount of time, but they don’t understand how counting that time works. If you leave the United States for too many days in a row, or if you have too many shorter absences, the clock may start all over again.
Likewise, the count stops when you receive a Notice to Appear (NTA) for removal in immigration court or when convicted of certain crimes.
How Can an Immigration Attorney Help with Cancellation of Removal In San Jose?
The cancellation of the removal process can be very complicated, and it depends on presenting the most compelling case possible to the immigration judge at the immigrant’s removal hearing. This is why having an attorney who understands the situation is crucial for success. Not only do experienced immigration attorneys know how to make a convincing case, but they can also assist with documentation and other tasks that the person facing removal doesn’t have the time or resources for.
With so much depending on the success of the hearing, you can’t afford to try to navigate the process by yourself. Call the law offices of Yemi Getachew to help with your cancellation of the removal case. You may call us at 408-292-7995 or use our easy online contact form to set up a consultation.
If you or a family member have already received a Notice to Appear (NTA) in immigration court for a removal hearing, there’s no time to waste. Reach out today.