Non-LPR Cancellation of Removal
Non-LPR Cancellation of Removal – Every day, individuals who have to appear in court for removal proceedings are faced with deciding what forms of relief from removal are available to them. Under INA § 240A(b)(1), noncitizens who are facing removal proceedings and who have qualifying family members in the United States may be able cancel their removal proceedings via a non-LPR cancellation of removal. If granted, they are able to adjust their status to a lawful permanent resident and obtain a green card.
When Can non-LPR Cancellation of Removal be Used?
It is important to understand that this form of cancellation is considered to be a “defensive” application. This means that non-LPR cancellation of removal is a remedy which is only made available to individuals who are presently facing removal in an immigration court. A person cannot affirmatively apply for a cancellation of removal. An action for non-LPR cancellation of removal can be initiated by the successful processing and filing of EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.
How is Someone Eligible for non-LPR Cancellation?
- They have been physically present in the United States continuously for at least ten years;
- They have displayed good moral character for ten years;
- They have not been convicted of certain offenses, which are listed in INA §§§ 212(a)(2), 237(a)(2), 237(a)(3);
- To deport them would cause exceptional and extremely unusual hardship to their lawful permanent resident or S. citizen spouse, child, or parent.
Who is Considered to Be a Qualifying Relative?
INA § 240A(b)(1) specifies that only U.S. citizen and Lawful Permanent Resident spouses and children qualify as relatives who may face exceptional and extremely unusual hardship if the individual facing removal is deported. If there is no qualifying relative, there is no eligibility for this method of cancellation.
The “exceptional and extremely unusual hardship” element of INA § 240A(b)(1) is probably the most difficult thing to prove in a non-LPR cancellation defense. The court understands that almost every qualifying family member will face emotional and possible financial stress as a result of having their loved one deported, so the court looks beyond these factors to determine hardship. It is very important to consult with an immigration lawyer to see what kind of documentation can be produced in order to create a strong application for cancellation.
If I Qualify, does that Mean I Can Cancel My Removal Proceedings?
Not exactly. This is because the “good moral character” and “hardship” requirements of § 240A(b)(1) are discretionary determinations which are reserved to the immigration judge who is tasked with adjudicating the application for cancellation of removal. This is why it is very important to consult with an immigration attorney who would be able to assess the factors at play in the individual’s case and then make strategic determinations for what kind of documentation should supplement EOIR-42B.
Putting together an application which has the best chances for fighting a removal order can be time consuming and burdensome. Consider setting up a consult with an attorney at Gilles Law, PLLC. You can reach us at 980-272-8438 at our office in Uptown Charlotte. We are here to assist with your inquiries.
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