Cancellation of removal

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Cancellation of removal is a provision of the Immigration and Nationality Act (INA) of the United States that allows some aliens who are in removal proceedings, who have lived in the United States for a long period of time and meet certain other conditions, to apply to remain in the United States and have the removal proceedings terminated. [1] Cancellation of removal was crafted by the U.S. Congress to replace "suspension of deportation," a similar form of relief available prior to April 1, 1997. [2]

Contents

Cancellation of removal is potentially available to aliens. A non-Lawful permanent resident (LPR) who is granted cancellation of removal becomes an LPR. [3]

Background

Prior to April 1, 1997, the effective date of IIRIRA, a legal remedy known as "suspension of deportation" was available to aliens in deportation proceedings. [2] Although functionally similar to cancellation of removal, suspension of deportation did not distinguish between "permanent residents" of the United States and "nonpermanent residents." To obtain suspension of deportation, an applicant under the pre-IIRIRA standard was required to fulfill the following: (1) continuous physical presence in the United States for a period of at least seven years; (2) "good moral character" during that entire period; and (3) that the applicant's deportation from the United States would result in "extreme hardship" to the applicant or any qualifying relative, which was mainly the applicant's spouse, parents, or children, who were either citizens or LPRs of the United States. After these three requirements were met, the LPR was granted relief irrespective of his or her age, health, race, color, religion, nationality, political affiliation, political opinion, etc. [4]

Lawful permanent residents of the United States

Sample of a permanent resident card (green card), which lawfully permits its holder to live and work in the United States similar to that of all other Americans. Before any legal immigrant is naturalized as a U.S. citizen, he or she must be a green card holder for at least 5 years and satisfy all other U.S. citizenship requirements. 2017-us-green-card-specimen.png
Sample of a permanent resident card (green card), which lawfully permits its holder to live and work in the United States similar to that of all other Americans. Before any legal immigrant is naturalized as a U.S. citizen, he or she must be a green card holder for at least 5 years and satisfy all other U.S. citizenship requirements.

The INA states the following:

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable . . . if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. [1]

According to the BIA, "cancellation of removal is both discretionary and prospective in nature." [8]

Nonpermanent residents

Regarding a nonpermanent resident, the Attorney General is expected to cancel the removal proceedings (and adjust the status of such alien to that of an LPR) if the alien:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. [3]

See also

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References

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. 1 2 INA § 240A(a), 8 U.S.C.   § 1229b(a)
  2. 1 2 Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. . . . These IIRIRA changes became effective on April 1, 1997.").
  3. 1 2 INA § 240A(b), 8 U.S.C.   § 1229b(b) ("Cancellation of removal and adjustment of status for certain nonpermanent residents").
  4. ↑ "suspension of deportation". LII / Legal Information Institute. Retrieved 31 March 2022.
  5. ↑ "Estimates of the Lawful Permanent Resident Population in the United States: January 2014" (PDF). James Lee; Bryan Baker. U.S. Dept. of Homeland Security (DHS). June 2017. Retrieved 2018-11-21.
  6. ↑ Stanton, Ryan (May 11, 2018). "Michigan father of 4 was nearly deported; now he's a U.S. citizen". www.mlive.com. Retrieved 2018-11-21.
  7. ↑ Sakuma, Amanda (October 24, 2014). "Lawsuit says ICE attorney forged document to deport immigrant man". MSNBC . Retrieved 2018-11-21.
  8. ↑ Matter of Perez, 22 I&N Dec. 689, 691 (BIA 1999) (en banc) (reversed on other grounds).
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