Cancellation of removal under INA § 240A (i.e. “cancellation”) has become an increasingly important defense for foreign nationals with strong ties to the United States especially given the rise in immigration enforcement. You may be eligible for cancellation of removal if you are a lawful permanent resident (i.e. green card holder) or undocumented facing removal proceedings if you have been in the United States for many years and have strong ties to the country. Cancellation of removal can help you obtain or retain lawful permanent residence (i.e. a green card).

It cannot be stressed enough that cancellation of removal is a “defensive” application. This means you can only apply for cancellation of removal if you are in proceedings before the Immigration Court. You cannot affirmatively file an application for cancellation of removal with USCIS.

There are two types of cancellation of removal under INA § 240A. The first type of cancellation of removal is commonly referred to as “42A” and is for lawful permanent residents (i.e. green card holders). The second type of cancellation of removal is commonly referred to as “42B” and is for undocumented foreign nationals.

Applying for cancellation of removal as a lawful permanent residents under INA § 240A(a) (i.e. EOIR-42A)

You may be eligible for cancellation of removal if you are a lawful permanent resident and can meet the following criteria:

• You have been a lawful permanent resident (i.e. green card holder) for at least 5 years;
• You have resided in the United States for a continuous period of at least 7 years; and
• You have not been convicted of an aggravated felony.

Just because you meet the requirements for LPR cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for LPR cancellation of removal, but that you “deserve” to be granted cancellation of removal and retain your lawful permanent residence (i.e. your green card). The immigration judge will weigh the positive factors present in your case against the adverse factors. Positive factors include, but are not limited to, the following:

• Your family ties to the United States;
• Duration of your residence in the United States;
• Your involvement in the community including community service beyond what may have been imposed by the court;
• Your reformation and rehabilitation;
• The passage of time since your criminal conviction;
• Your employment history; and
• Potential hardship to your family members if cancellation of removal is not granted.

Adverse factors include, but are not limited to, the following:

• Your criminal record, including the nature, recency and seriousness of your crimes;
• Whether you are removal under any other grounds and if yes, the nature and circumstances underlying such grounds of removal;
• Whether you have other significant violations of immigrations laws; or
• Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.

Applying for cancellation of removal for as a non-permanent residents under INA § 240A(b) (i.e. EOIR-42B)

You may be eligible for cancellation of removal if you are a non-permanent resident and can meet the following criteria:

• You have been physically present in the United States for a continuous period of at least 10 years;
• You have been a person of good moral character for 10 years;
• You have not been convicted of certain criminal offenses including a crime of involving moral turpitude, an aggravated felony, multiple criminal convictions for which you were sentenced to at least 5 years in prison, controlled substances offenses, prostitution, and domestic violence, child abuse, stalking, or violation of an order of protection;
• Your removal from the United States would cause exceptional and extremely unusual hardship to your lawful permanent resident (i.e. green card holder) or United States citizen spouse, child, or parent.

You are not eligible for cancellation of removal if you:

• Were previously granted cancellation of removal, suspension of deportation, or relief under former INA § 212(c);
• Persecuted others, or are inadmissible or deportable under the anti-terrorist grounds; and
• Entered the United States as a crewman who entered after June 30, 1964 or as a J-1 exchange visitor.

Just because you meet the requirements for non-LPR cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for non-LPR cancellation of removal, but that you “deserve” to be granted cancellation of removal and have your status adjusted to lawful permanent resident. The immigration judge will weigh the positive factors present in your case against the adverse factors to determine if you “deserve” to be granted cancellation of removal.

Applying for special rule cancellation of removal as an abused spouse

Are you currently in removal proceedings and have you been abused by your lawful permanent resident or United States spouse or parent? You may be eligible for special rule cancellation of removal if you are the spouse or child of a United States citizen or lawful permanent resident (i.e. green card holder) who was subjected to battery or extreme cruelty at the hands of your spouse or parent. Under the Violence Against Women Act (i.e. VAWA), you may be eligible for special rule cancellation of removal if you are a non-permanent resident and can meet the following criteria:

• You have been battered or subjected to extreme cruelty by your United States citizen or lawful permanent resident (i.e. green card holder) spouse or parent;
• You are the parent of a child United States citizen or lawful permanent resident (i.e. green card holder) and your child has been battered or subjected to extreme cruelty by such parent;

      OR

• You have been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom you intended to marry, but your marriage was not legitimate, because your United States citizen or lawful permanent resident spouse was still married to someone else;

      AND

• You have been continuously present in the United States for at least 3 years before filing your application for cancellation of removal;
• You have been a person of good moral character during the 3-year period of continuous physical presence;
• You have not been convicted of certain criminal offenses including a crime of involving moral turpitude, an aggravated felony, multiple criminal convictions for which you were sentenced to at least 5 years in prison, controlled substances offenses, prostitution, and domestic violence, child abuse, stalking, or violation of an order of protection;
• You have not engaged activities such as terrorist activities, torture, extrajudicial killings, genocide, marriage fraud, and/or human trafficking; and
• Your removal would result in you, your child, and/or your parent(s) suffering extreme hardship.

Just because you meet the requirements for special rule cancellation of removal does not mean your application will be granted. The immigration judge has to decide whether you should be granted cancellation of removal as a matter of discretion. This means you not only need to show you are eligible for special rule cancellation of removal, but that you “deserve” to be granted cancellation of removal and have your status adjusted to lawful permanent resident. The immigration judge will weigh the positive factors present in your case against the adverse factors to determine if you “deserve” to be granted cancellation of removal.