Nonpermanent residents who are under removal proceedings may be eligible for relief known as cancellation of removal. Once granted, cancellation of removal leads to a green card.
To be eligible for cancellation, the alien must meet certain requirements. First, he/she must prove continuous physical presence in the United States for at least ten years. This period is counted from the first physical entry into the U.S., legally or illegally, and ends upon service on the alien of a notice to appear at a deportation or removal proceedings or upon the commission of certain crimes.
This period of physical presence is broken when the alien leaves the U.S. for more than 90 days, when all the departures total more than 180 days, or when the alien leaves the U.S. on voluntary departure.
Second, the alien needs to show good moral character for the 10-year period measured backward from the date the application for cancellation is resolved by the judge or Board of Immigration Appeals. Although the term is not defined, the law enumerates persons who cannot be deemed to have good moral character, such as habitual drunkards, prostitutes, smugglers, and persons convicted of crimes of moral turpitude, multiple crimes or most drug crimes.
Third, he/she must not have been convicted of certain offenses specified under the Immigration and Nationality Act.
Fourth, the alien must establish that deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or legal permanent resident spouse, parent or child. The applicant’s burden is to demonstrate not his/her hardship, but the hardship that would be experienced by the qualifying relative.
The factors to be considered include the ”age, health and circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions in the country of return might affect those relatives”. Other factors are the age of the respondent, family ties in the U.S. and abroad, length of residency in the U.S., health conditions, economic and political conditions in the country of removal, financial status, community ties and immigration history. Hardship factors are considered in the aggregate.
Like most types of relief, cancellation of removal is granted in the discretion of the immigration judge. The application may only be made at a removal hearing. This means that individuals who want a cancellation of removal but who do not have pending deportation cases must first subject themselves to removal proceedings. In these situations, cancellation of removal is generally not the first option because of the risks involved.
On the other hand, for those who are already arrested and who can satisfy the eligibility requirements, cancellation of removal is an important option.
Even when granted, however, cancellation of removal does not give derivative status to the spouse or children of the applicant. Each family member must independently qualify for this relief.
Certain classes of aliens are statutorily ineligible for cancellation, such as some J visa holders, crewmen, individuals who are deemed security threats, and those who have previously been granted cancellation of removal, suspension of deportation or voluntary departure.
There is a yearly quota of 4,000 on the number of aliens who may be granted a cancellation of removal and allowed to adjust to permanent resident status.