By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
A lawful permanent resident (LPR) who is in removal proceedings may be eligible for cancellation of removal, meaning the termination of the removal process and freedom to continue living in America as a green card holder. Cancellation of removal can be sought when an LPR is in removal or deportation proceedings before an Immigration Judge and the individual is eligible. To apply for cancellation of removal the LPR must submit Form EOIR-42A with supporting documents showing that they meet all of the eligibility requirements to the Immigration Judge.
Am I eligible for cancelation of removal? In order to be eligible for cancellation of removal the LPR must have had their green card for a least five years and must have lived in the U.S. for seven years continuously after being admitted in any status. The clock of continuous presence stops when either the government serves the LPR a Notice to Appear or the they commit certain criminal offenses. A Notice to Appear (NTA) is a document given to a LPR to put them on notice of deportation or removal proceedings. The five-year period of permanent residency does not include the time after a deportable criminal offense occurred, after the government had produced a Notice to Appear, or while the LPR is waiting on the decision of the Immigration Judge. The LPR must also not have any criminal convictions which can be classified as aggravated felonies. If a LPR obtained their green card through fraud or misrepresentation they will not be eligible for cancellation of removal because they are not considered to have been lawfully admitted for permanent residency, however, there may be other waivers available for the fraud, which is for another article discussion. LPR Cancellation is a discretionary form of relief, which means ultimately the judge will decide if a person is deserving of the relief, and it’s at their discretion to grant the same.
Success in cancellation of removal for LPRs requires that the Immigration Judge finds that the positive equities outweigh any adverse factors. Below is a list of some positive and negative equities considered by an Immigration Judge.
Examples of Positive Equities:
• Family ties in the U.S.;
• Evidence of hardship to the LPR and family if the LPR is deported;
• Evidence of good moral character;
• Employment history and/or business ties;
• Property ownership;
• Health Issues of the qualifying relative(s);
• Community service; and
• Service in the U.S. military.
Examples of Negative Equalities
• Reason for removal;
• Additional violations of immigration or other laws;
• Criminal record;
• Evidence of bad character; or
• Evidence suggesting the LPR applicant will continue to commit “bad or violative acts”
Cancellation of removal can be granted only once so it is a valuable form of protection that should not be taken lightly, the LPR needs to present a strong convincing case in order to avoid an Order of Removal.