July 29, 2020

Cancellation of Removal – 10 year Cancellation – Form E42b

The threat of deportation is an extremely terrifying reality for many non-residents in the United States. However, the Immigration and Nationality Act (INA) has a pathway for Non-Lawful Permanent Residents (LPR) to be granted the cancellation of removal (stops the deportation and grants a green card {legal permanent residence}). 

Cancellation of Removal for Non-LPR’s

For non-LPRs (those who are not legal permanent residents), obtaining a cancellation of removal is a complex legal process. In order to be granted cancellation of removal, a non-LPR must show:

• The non-LPR has continuously resided in the United States for ten years
• The non-LPR is a person of good moral character
• The non-LPR has not committed a crime of moral turpitude 
• The non-LPR can establish their deportation would result in exceptional and extremely unusual harm for the non-LPR’s spouse, parent, or child who themselves is either a United States citizen or a LPR 

Continuous Residence in the United States

To establish continuous residence in the United States, the non-LPR must show their physical presence in the country has not been significantly altered. If a non-LPR has left the United States for a period of over 90 days in one trip or over a period of 180 throughout the ten years which the non-LPR has resided in the US, these absences prevent the showing of continuous residence. 

The stop time rule applies to the continuous residence requirement. The stop time rule is when something stops the accrual of time for a legal test. The stop time rule is triggered when the non-LPR is issued an NTA (if the NTA is deficient it may not stop time), the ten year period applies only to the date listed on the NTA. Additionally, if the non-LPR commits a crime listed in INA §212(a)(2) or §212(a)(4), the ten year period stops. The crimes included in this portion of the INA are crimes of moral turpitude and controlled substances offenses. 

Person of Good Moral Character

A person of good moral character is one which is not automatically banned by certain characteristics listed in the INA and the judge believes the non-LPR is subjectively a person of good moral character. Some of the automatic characteristics which prevent a showing of good moral character are: 

• Conviction or admission of a drug offense, except a single conviction of possession of less than 30 grams of marijuana
• Having a total sentence of five years or more for two or more convictions
• Immigration authorities having “reason to believe” non-LPR is or was a drug trafficker
• Being a habitual drunkard
• Giving false testimony to get or keep immigration benefits
• 2 DUIs with the ten year period (see Matter of Castillo Perez)

To show the judge the non-LPR has subjectively good moral character, evidence must be presented corroborating this. 

Has not been Convicted of a Crime of Moral Turpitude 

A crime of moral turpitude is vaguely defined as “…conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Examples of such crimes are:

• Murder / voluntary manslaughter
• Rape 
• Spousal / child abuse 
• Robbery / theft
• Some forms of assault or menacing

However, being convicted of a crime of moral turpitude will not preclude non-LPR cancellation if the applicant has only been convicted of one crime of moral turpitude, a sentence of less than six months was imposed, and the offense carries a maximum possible sentence of 364 days or less.

Qualifying Relatives 

For a non-LPR to be granted cancellation of removal (E42b), the applicant must show a qualifying relative will suffer exceptional and extremely unusual hardship. A qualifying relative of the non-LPR applicant is the child, spouse, or parent who is either a US citizen or LPR. For a child to qualify, they must be either under 21 years old or unmarried. The spouse of the non-LPR must be the person who is legally and non-fraudulently married to the applicant. A parent of the non-LPR can either be the biological or step-parent of the applicant. 

A showing of hardship must demonstrate that the qualifying relative will suffer substantially beyond the hardship of a relative being deported would normally cause. Some of the categories that could show substantial hardship to the qualifying relative are:

• Age
• Required medical care
• A child’s special needs in school 
• Circumstances in the applicant’s home country and the effect on the qualifying relative 

The exceptional and extraordinary unusual hardship standard is subject to judicial discretion. The non-LPR must show evidence of how the qualifying relative will suffer substantially beyond what would normally be expected. 

Cancellation of removal (E42b) is a challenging legal standard to meet; however, it is a viable source of relief for non-LPRs. If you have questions about cancellation of removal (E42b), please contact us at (503)224-0950.