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CANCELLATION OF REMOVAL

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Cancellation of Removal is a defense available to aliens and permanent residence, only when placed in removal proceedings. It is a common misconception that a person can apply affirmatively (proactively) for this program. However, again, this program is a relief (defense) to removal and can only be used when there is a person has removal (deportation) proceedings.

What is this program exactly? It applies to both aliens and green card holders; however, the eligibility is different. The program is codified in 8 U.S. Code § 1229b – “Cancellation of removal; adjustment of status”

Subsection (a) explains the eligibility requirements for permanent residents; and subsection (b) for alien. And thus the forms used to apply are commonly referred to as EOIR-42(a) and EOIR-42(b).

For Permanent residents the requirements are:

  1. has been an alien lawfully admitted for permanent residence for not less than 5 years,
  2. has resided in the United States continuously for 7 years after having been admitted in any status, and
  3. has not been convicted of any aggravated felony.

For Aliens the requirements are:

(A) has been physically present in the United States for a continuous period of not less than 10 years

(B) has been a person of good moral character during such period;

(C) has not been convicted of certain offenses under section (Crimes of Moral Turpitude, Crimes related to Controlled Substances, aggravated felonies, firearm offenses, document fraud, and others);

and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The big difference between in the eligibility requirements is that for permanent residents, there is no need to establish “exception and extremely unusual hardship” on a relative. Another difference is the continuous presence requirements – 7 years for LPRs and 10 years for aliens.

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