March 19, 2020
Applicants’ Guide to Cancellation of Removal for Lawful Permanent Residents
Cancellation of Removal for Lawful Permanent Residents, filed through a E-42A application, is an important relief mechanism for green card holders who have been placed in removal. To qualify for cancellation of removal, you must prove the following to an immigration judge:
- You’ve had permanent residency status for at least 5 years at the time of application filing;
- You have continually lived in the United States for at least 7 years after being admitted in any status;
- You have not been convicted of an aggravated felony;
- You have not applied for relief from removal through a 212c application in the past, and
- You can demonstrate to the Immigration Judge good reasons why you deserve to keep your green card in order to satisfy their discretion
Unfortunately, the first requirement means that if you have not had your green card for at least 5 years, you are ineligible for this form of relief from deportation. The most important factor judges look to regarding this requirement was whether the green card was lawfully obtained. A fraudulent, or otherwise ineligible, green card means that you will not be eligible for cancellation of removal.
To meet the second requirement, 7 years of continuous presence, you must have continuously resided in the United States for at least 7 years after being admitted, and before the “stop-time” rule is triggered. The meaning of “admitted in any status” varies by federal circuit court jurisdiction, however the Board of Immigration Appeals ruled in 2018 that it means that applicants have lawful immigration status when admitted to the United States (usually gained by showing a green card), but sometimes through entry on a tourist visa.
The stop-time rule is triggered by your either:
- Being issued a Proper Notice to Appear (the document placing you in Immigrant Court proceedings), which will list the charges against you
- Committing a crime referred to in the Immigration and Nationality Act (I.N.A.) § 212(a)(2), or
- Committing a security or related offense described in I.N.A. § 237(a)(4)
The “clock” counting your presence in the United States stops running when the government files the Notice to Appear with the Immigration Court. If you have not reached seven years by that point, you are not eligible for cancellation of removal. Similarly, the clock may stop running if you commit one of the types of crimes listed in INA § 212(a)(2) or § 237(a)(4). These crimes include “crimes involving moral turpitude” and “controlled substance offenses.” The clock stops on the day the crime is committed, at which point your time in the United States stops counting for the 7-year requirement.
To meet the third requirement, you must not have been convicted of an “aggravated felony.” Any aggravated felony convictions will make you ineligible for cancellation of removal. The most common forms of aggravated felonies include:
- Crimes of violence where you were sentenced to 1 year or more of imprisonment (regardless of actual time served)
- Drug-trafficking crimes
- Theft of burglary if you were sentenced to 1 year or more of imprisonment (regardless of actual time served), and
- Crimes involving fraud where the loss to the victim exceeds $10,000
An attempt or conspiracy to commit any aggravated felony also qualifies as an aggravated felony that would make you ineligible for cancellation of removal. This list is not exhaustive; a full list of aggravated felonies can be found in I.N.A. § 101(a)(43).
Fourth, you must demonstrate that you have not previously applied for cancellation of removal. Cancellation of removal is a “one-time only” form of relief. If you have already been granted cancellation of removal (either non-lawful permanent resident or lawful permanent resident) or relief under form I.N.A. § 212(c) in the past, you are ineligible for a new cancellation of removal through a 42A application.
Last, in order to satisfy the Immigration Judge’s discretion in granting your application, you must demonstrate the reasons why you deserve to keep your green card. That means that beyond showing that you meet the basic legal requirements, you also deserve relief when your story is viewed in a personal and subjective way. After proving the first four requirements, the majority of your hearing in Immigration Court will focus on whether or not you deserve to keep your green card. The Immigration Judge has a lot of freedom and will balance the adverse (negative) factors in your case with the humanitarian considerations that you present.
In evaluating the adverse factors, the Immigration Judge will consider:
- The nature of the underlying grounds of removal (why you ended up in court in the first place)
- Any other immigration violations, and
- Any other criminal record you may have
As far as the humanitarian factors go, you will want to provide plenty of proof regarding:
- Your family ties in the United States
- Hardship to yourself and family members should you be deported
- Community ties
- History of employment
- Business ties, duration in the United States, and
- Proof of rehabilitation (for any crimes committed)
You should also consider asking family members and friends to testify on your behalf during your merits hearing. Because cancellation of removal can be granted to you only once, Immigration Judges are generally lenient in granting it; however, it is important to present a very strong case in order to avoid deportation.
Should you find yourself in Immigration Court (EOIR), call an experienced immigration attorney. The laws are complex and the consequences dire (deportation). Our team at Bailey Immigration is here to help you and guide you through the process. Please call us at (503)224-0950 for a free consulation.