Get out of Jail Free: Cancellation of Removal

As the term cancellation of removal indicates, it is a get out of jail card for an eligible alien in removal proceedings who otherwise would have received an order of removal.

I.e., an alien who receives cancellation is free to remain in the United States. Also, the granting of this relief entitles a bond obligor to cancellation of a delivery bond. The governing statute is 8 U.S.C. 1229b, as implemented by 8 C.F.R. 240.20. An alien wishing to apply for this form of discretionary relief must file an application with the immigration court having jurisdiction over his/her case on EOIR-42 together with either the required filing fee, or a request for a fee waiver. The statute provides for two distinct categories of applicants, with distinct eligibility requirements for each:

• Permanent residents (i.e., LPRs)
• Nonpermanent residents

For permanent residents, the immigration judge may cancel removal for an LPR who is inadmissible or deportable and meets the following requirements:

• has been an alien lawfully admitted for permanent residence for not less than 5 years
• has resided in the United States continuously for 7 years after being admitted in any status
• has not been convicted of any aggravated felony. Note: aggravated felony is a term of art in immigration law. We will discuss it in a later blog.

For nonpermanent residents who are inadmissible or deportable, the immigration judge may cancel removal, and adjust his/her immigration status to that of LPR, if he/she meets the following requirements:

• 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
• has been a person of good moral character during such period
• has not been convicted [under any of the specified criminal statutes
• 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.

We should emphasize the following two points:

• Whether or not to grant a motion for cancellation of removal is entirely within the discretion of the immigration judge. I.e., although an alien who does meet the specified requirements is not eligible for cancellation of removal, meeting them does not guarantee that he/she will receive cancellation.
• The requirements for a nonpermanent resident are much stricter than those for an LPR.