Cancellation of removal is a defense to removal available to both permanent residents and "non-permanent residents" (i.e. folks who snuck into the country, or overstayed a visa). Because it is a defense to removal, a person may not make an application for cancellation of removal unless she is in removal proceedings before an immigration judge. The requirements are different for permanent residents than for non-permanent residents.
A permanent resident in removal proceedings may apply for cancellation of removal as a defense to removal if he has:
Permanent residents applying for cancellation of removal are not required to show that their removal will result in hardship to anyone. Before the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), to prevail in a cancellation application, a permanent resident had to prove his removal would result in extreme hardship to a US citizen or permanent resident spouse, parent, or child. Hardship is no longer a requirement.
Non-permanent residents have a far more difficult path prevailing in a cancellation application than permanent residents. Congress amended the suspension of deportation statute in 1962 to ease the hardship requirement from "unconscionable" to "extreme hardship." IIRIRA tightened this "suspension of deportation" rule for non-permanent residents by introducing its replacement remedy: cancellation of removal with the exceptional and extremely unusual hardship standard. Two of the three cancellation rules for non-permanent residents differ from the old suspension of deportation rules and one remained the same:
The hardship requirement is what disqualifies most applicants. The Board of Immigration Appeals held in 2001 that to prove exceptional and extremely unusual hardship the applicant must prove "hardship that is substantially beyond that which would ordinarily be expected to result from the alien's deportation, but need not show that such hardship would be 'unconscionable.'" In re Francisco Javier Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001). We discuss hardship in more detail below.
Continuous Physical Presence
An application for cancellation of removal for non-permanent residents must show at least ten years of continuous physical presence immediately preceding filing the application for cancellation of removal. Adequate proof of physical presence is one document showing the applicant's name and a date for each month of each year for the entire ten years. Documents useful to prove continuous physical presence include employment pay stubs, car lease payments, phone bills, cable television bills, gas and electric bills, medical records, credit card bills, receipts for purchased items that bear the applicant's name, receipts for rent or mortgage payments and many other types of documents.
Institutions like the phone company, gas and electric company and past employers often keep records for more than ten years and, for a small fee, will reproduce those records for you. If you can't prove continuous physical presence, you cannot qualify for cancellation of removal and your case will be denied. The time to search for presence documents is before you make the application, not afterwards. If you think you will be able to obtain presence documents that you later cannot, you will lose your case and be removed.
Continuous physical presence has to be continuous. A departure from the US for more than of 90 days, or 180 days cumulatively during the ten years preceding the cancellation application, interrupts the alien’s continuous physical presence starting the clock over again unless the required period was reached before the government issued the Notice to Appear. INA § 240A(d)(2). Generally, being turned back at the border does not constitute a break in continuous physical presence, even if the applicant is fingerprinted and photographed. But any order of deportation, removal, expedited removal, or voluntary departure does break continuous physical presence. Matter of Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002); Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).
It is important to note that a prior order of removal including expedited removal is not subject to being reopened or reviewed and an alien subject to such order is not eligible and may not apply for any relief from removal. The government may remove the alien under the prior order at any time after the reentry. 8 U.S.C. § 1231(a)(5). If an applicant had previous contact with US immigration officials, it is important to be certain that the contact did not result in expedited removal, which bars all relief except asylum and withholding of removal. Expedited removal is removal ordered by an immigration or customs officer and it requires the alien to sign a document agreeing to the removal and waiving his right to appear before an immigration judge. If the alien signed an expedited removal authorization form, he is barred from applying for adjustment, cancellation of removal, waivers of inadmissibility and most other relief. In such cases the immigration court does not have jurisdiction over the case at all and it is Immigration and Customs Enforcement that merely reinstates and enforces the earlier order of removal regardless of whether the order was judicial or expedited.
Because certain types of immigration contacts interrupt continuous physical presence and start the ten year clock over again, it is crucial to send a Freedom of Information Act request to USCIS or Immigration and Customs Enforcement to ask for a copy all government records relating to the client. The client will likely be unable to remember if his contact involved being turned back at the border, or something more significant like expedited removal.
Continuous physical presence ends either when the alien is served with a Notice to Appear, commits an offense listed under INA 212(a)(2), or interrupts his presence with a trip outside of the United States. A Notice to Appear is the document that Immigration and Customs Enforcement gives an alien to begin removal proceedings. INA §240A(d)(1). This timing is important. If you have nine years and ten months of physical presence at the time the government serves you with a Notice to Appear, you will lose your case. However, service of a Notice to Appear does not serve to cut off later evidence of changed circumstances regarding hardship or good moral character. Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), see also Matter of Cisnero, 23 I&N Dec. 668 (BIA 2004) (holding that while service of a Notice to Appear in the current proceeding ends the alien's period of continuous physical presence, service of a Notice to Appear in an earlier proceeding does not serve to end the alien's period of continuous physical presence with respect to an application for cancellation of removal filed in the current proceeding).
The applicant's accrual of continuous physical presence also ends when he has committed an offense described in INA §212(a)(2). The "stop time" rule applies at the time of commission and not the time of conviction. Matter of Perez, 22 I&N Dec. 689 (BIA 1999). INA §212(a)(2) describes criminal grounds for excluding a person from the United States and these crimes fall into three categories: (1) crimes of moral turpitude, (2) controlled substance violations, and (3) aggravated felonies. But a conviction not described under §212(a)(2) that renders an alien removable under §§237(a)(2) or 237(a)(4) does not stop the alien from accruing continuous physical presence. To stop time, the criminal offense must be described in §212(a)(2). Only offenses described under §§237(a)(2) or 237(a)(4) that are also described under §212(a)(2) stop time under the statute. Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000). In Campos the conviction was unlawful use of a firearm which resulted in a sentence of 18 months probation, an office described under §237(a)(2), but not under §212(a)(2).
The BIA confirmed that a conviction for a crime of moral turpitude that falls within the petty offense exception does not stop the accrual of continuous physical presence for cancellation of removal. Matter of Garcia, 25 I&N Dec. 332 (BIA 2010).
Good Moral Character
Good moral character generally means the absence of criminal convictions or immigration violations involving fraud or dishonesty. Letters of recommendation and proof of volunteerism and charitable service may be helpful to evidence rehabilitation, but only if it is necessary. If the applicant hasn't committed a crime, been convicted of one, or used fraud or dishonesty to obtain an immigration benefit, the applicant doesn't need positive moral character documentation.
It's fairly common for unscrupulous attorneys bilking unsavvy clients for fees to bring meritless cases. These unscrupulous attorneys then need to appear to be doing something useful and will often create dozens of letters "attesting to the good moral character" of the applicant, or "recommending him highly for citizenship!" Such an attorney may try to have a gallery full of moral character witnesses and piles of documents relating to moral character. This is a completely useless sideshow calculated to make the client feel as if the attorney performed some useful service before losing the case.
One area that may cause moral character problems is the applicant's history of filing federal income tax returns. Upon close inspection, it's common for cancellation applicants to have listed thirty-seven dependents on their federal tax forms, three-quarters of them living abroad. It is also common for applicants to have listed a boyfriend or girlfriend roommate or "baby daddy" as a spouse. The Internal Revenue Service only recognizes common law spouses as spouses for income tax purposes if the state where the couple resides recognizes common law marriage. California does not recognize common law marriage, so a man and woman living together for years who have children born from the relationship are not "spouses" under California law and are not spouses for federal income tax purposes unless they get married.
An applicant who lists false or questionable dependents on his tax returns including a "spouse" who is not a spouse for income tax purposes has in fact committed a crime and may be ineligible for cancellation of removal by failing to meet the good moral character requirement.
To repair this problem, the applicant need only correct the errors on his previous ten years of federal income tax returns by filing form 1040X with the corrected form 1040 for each year there is an error on the return. Some applicants will be unhappy with the result if it means a hefty tax bill with interest and penalties. But this is much less expensive and less dangerous than risking ten or more years outside of the United States and potentially being unable to return to the US ever.
Exceptionally and Extremely Unusual Hardship
The most difficult part of a cancellation of removal case for a non-permanent resident is proving hardship to a qualifying relative. The applicant must prove "hardship that is substantially beyond that which would ordinarily be expected to result from the alien's deportation, but need not show that such hardship would be 'unconscionable.'" In re Monreal, 23 I&N Dec. 56 (BIA 2001).
This means all of the ordinary and expected hardships that result from an alien's removal like family separation, diminished educational opportunities, economic and other hardships are insufficient to satisfy the cancellation hardship requirement. The Congress' language is instructive: "extremely unusual hardship." Immigration judges are looking for evidence that the hardship is unlike what commonly occurs when a person is deported.
Factors to be considered in determining the level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. In re Monreal, 23 I&N Dec. at 63. The court is required to consider factors including a lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal, but these will generally be insufficient, in and of themselves, to support a finding of exceptional and extremely unusual hardship. Matter of Andazola-Rivas, 23 I&N Dec. 319, 323-324 (BIA 2002).
The immigration judge should consider all hardship to all qualifying relatives cumulatively to determine whether the qualifying relatives will suffer hardship that is exceptional and extremely unusual. Matter of Monreal, 23 I&N Dec. at 63. For example, the Board held that diminished educational and economic opportunities combined with the financial burden their mother as the sole financial provider for her six US citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.” Matter of Recinas, 23 I&N Dec. 467, 472 (BIA 2002).
Many attorneys do not think carefully about causation. It is not enough that a qualifying relative suffers exceptional and extremely unusual hardship. The alien's removal must cause the hardship. This is more complicated to prove than it seems.
If the qualifying relative will suffer exceptional and extremely unusual hardship here if the alien is granted residence, and will suffer just the same in the alien's foreign country upon removal, the order of removal is not causing the hardship. If a qualifying relative is very sick and is receiving adequate medical care United States, and if the alien is removed, the qualifying relative will move and receive adequate medical care in the alien's home country, the order of removal is not causing the hardship. If the qualifying is receiving specialized medical care in the United States that is unavailable in the alien's home country, but if the alien is removed, the qualifying relative will not depart with the alien, then the order of removal is not causing the hardship.
There are three family relationships that can support a qualifying relative: spouse, parent, and child. Parents as qualifying relatives present causation problems because you must prove that they will suffer exceptional and extremely unusual hardship if they depart with the alien to his home country as well as if they remain in the United States and are separated from the alien. Spouses present somewhat less of a problem because they are more likely bound to follow their husband or wife home to the foreign country. Children present the least causation problem because they have virtually no choice but to accompany their parent or parents to the home country if the parents are ordered removed.
Children with Disabilities
The Board of Immigration Appeals held in 2001 that a "strong applicant" for cancellation of removal might have "very serious health issues or compelling special needs in school." In re Monreal, 23 I&N Dec. 56 (BIA 2001)
Children are among the most effective qualifying relatives because they have a compelling need to return to the parent applicant's home country if the parent is ordered removed. They have little autonomy and essentially have to live with the immigration judge's decision as much as the parent in immigration court must do so.
Immigration judges tend to find that the duration a child is removed from the regular classroom for special education services is a metric for how compelling are the child's special needs and thus the evidence of hardship. For some judges the hardship threshold is met when a child receives a minimum of 30-35 percent of his classtime in "pull out" special education classes removed from the regular classroom. For most judges the threshold is roughly 20 percent.
Some judges will find sufficient hardship where a child has a "504" plan that requires the regular classroom teacher to provide in-class accommodations (like seating the child near the teacher and repeating instructions to the child), especially when combined with psychological therapy, speech therapy or other types of interventions that the school psychologist or other school district official has determined necessary. However, there is no bright line rule and immigration judges consider hardship cumulatively considering the education of the parents, whether it is a single parent or married couple, the number of children in the family, the ages and health of the parent applicant and his qualifying relatives, prevailing conditions in the country to which the applicant will be removed and other factors.
Bars to Eligibility for Cancellation of Removal
A person who was ordered removed by an immigration judge or given expedited removal by an immigration officer may be subject to "reinstatement" of the existing removal order. A person in this situation may retain the right to seek withholding of removal, or a remedy under the Convention Against Torture, but will generally be barred from asylum and other relief like cancellation of removal.