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Immigration Law Practice Expediter
Copyright 2004, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Removal Procedure
Immigration Law Practice Expediter 13.04
Cancellation of Removal
IIRAIRA replaced two familiar forms of relief from deportation--suspension of deportation and relief under INA § 212(c)--with somewhat analogous forms of relief called cancellation of removal. The new law bars many people from applying for the relief and imposes tougher requirements on those who are not statutorily barred.
Discussion: See generally Immigration Law and Procedure § 64.04.
1. Cancellation of removal is a form of discretionary relief available to certain inadmissible or deportable persons in removal proceedings. If a noncitizen is granted this relief, removal is canceled and his or her status is adjusted to that of a lawful permanent resident.
Authority: See INA § 240A(a), (b), 8 U.S.C. § 1229b(a), (b)
2. There are four kinds of cancellation of removal:
- A. Cancellation of removal for certain permanent residents. A permanent resident is eligible if he or she:
(1) Has been lawfully admitted for permanent residence for at least five years;
(2) Has resided continuously in the United States for seven years after having been admitted in any status; and
(3) Has not been convicted of an aggravated felony.
Authority: See INA § 240A(a), 8 U.S.C. § 1229b(a); 8 C.F.R. § 1240.20.
Discussion: See Immigration Law and Procedure § 64.04[2].
- B. Cancellation of removal for certain nonpermanent residents. A nonpermanent resident is eligible if he or she:
(1) Has been continuously physically present in the United States for at least the last ten years;
(2) Has been a person of good moral character during that period;
(3) Has not been convicted of certain statutory offenses; and
(4) Establishes that removal would result in exceptional and extremely unusual hardship to the noncitizen's spouse, parent, or child. The family member must be a citizen or lawful permanent resident.
Authority: See INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).
Discussion: See Immigration Law and Procedure § 64.04[3].Practice Tip 117
- C. Battered spouse or child cancellation of removal. A noncitizen is eligible if he or she:
(1) Was battered or subjected to extreme cruelty by his or her U.S. citizen or legal permanent resident spouse or parent, or is the parent of a child who was battered or subjected to extreme cruelty by the child's U.S. citizen or legal permanent resident spouse;
(2) Has been physically present in the United States for three continuous years immediately preceding the date of the application;
(3) Has been a person of good moral character during such period;
(4) Is not inadmissible under INA § 212(a)(2) or (3), 8 U.S.C. § 1182(a)(2) or (3)
(5) Is not deportable under INA § 237(a)(1)(G), (2), (3), or (4), 8 U.S.C. § 1227(a)(1)(G), (2), (3), or (4); and
(6) Has not been convicted of an aggravated felony.
Authority: See INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2).
Discussion: See Immigration Law and Procedure § 64.04[6].
- D. Certain Central Americans and Eastern Europeans. Some Central Americans and Eastern Europeans are eligible for special cancellation of removal under NACARA.
Authority: See 8 C.F.R. §§ 240.21 and 1240.21.
Discussion: See Immigration Law and Procedure § 64.04[7].
3. There is a 4,000 annual cap on the determination of most cancellation of removal cases.
Authority: See INA § 240A(e), 8 U.S.C. § 1229b(e); 8 C.F.R. §§ 240.21(a) and 1240.21(a).
Discussion: See Immigration Law and Procedure § 64.04[9].
FOOTNOTES:
Practice Tip 117.
For a discussion of what constitutes and terminates "physical presence,'' see Immigration Law and Procedure § 64.04[4].
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