What Is Cancellation of Removal? Part One

January 22, 2012

 

The Immigration and Nationality Act (INA) under Section 240A allows the Department of Homeland Security (DHS) to cancel the removal of non-citizens who meet certain statutory requirements. There are three types of cancellations of removal: cancellation of removal for permanent residents; cancellation of removal for non-permanent residents; cancellation of removal for battered spouses; and cancellation of removal for Guatemalans, Salvadorans, and former Soviet Bloc nationals (NACARA Cancellation).

 

Cancellation of Removal for Certain Permanent Residents Under INA 240(A)(a)

 

Section 240(A)(a) of the INA allows the cancellation of removal of certain permanent residents who have been placed in removal proceedings if they fulfill the following requirements:

 

a.       The alien must be a lawful permanent resident. The key word here is “lawful”. Persons who acquired their permanent resident status through fraud or misrepresentation are considered not to have been lawfully admitted for permanent resident status and thus are ineligible for cancellation of removal.

 

b.      The alien must have resided continuously in the United States for at least seven years after having been admitted in any status. The seven-year continuous residence can be accumulated after admission in any lawful status, immigrant or nonimmigrant. Thus, aliens who entered without inspection cannot use the time in which they were in unlawful status in the United States to qualify for cancellation of removal. On the other hand, persons who entered as non-immigrants and later adjusted their status to permanent residence may count the period of time they were in nonimmigrant status in the United States (whether or not they overstayed their status or otherwise violated their status) to meet the seven-year continuous residence requirement.

 

c.       The alien must not have been convicted of an aggravated felony as defined under INA Section 101(a)(43); and

 

d.      The alien must not have been granted cancellation of removal previously.

Cancellation of removal under this Section waives all removable criminal offenses except aggravated felony convictions and security-related conduct.

It is important to note that in addition to satisfying the foregoing statutory requirements, the applicant must establish that he or she warrants cancellation of removal as a matter of discretion. The factors to be considered for a favorable exercise of discretion are family ties in the United States, residence of long duration in this country, evidence of hardship, if any, to the applicant and the applicant’s family if removal occurs; service in the U.S. Armed Forces; a long history of employment; the existence of business and property; evidence of family and service to the community; evidence of rehabilitation if a criminal record exists; and other evidence attesting to the applicant’s good moral character.

Unfavorable factors include: the nature and the underlying circumstances of the grounds for removal; the presence of additional immigration violations; the existence of a criminal record and its recency and seriousness. The leading case for this type of cancellation is Matter of C-V-T- , decided in 1998.

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