NO CIR or DAPA – What Now? Cancellation of Removal

By Attorneys Ben Loveman & Nancy E. Miller

Comprehensive Immigration Reform is dead in the water and expansion of DACA and DAPA have been stopped short by a U.S. District Court Judge.  So, what is left for someone who has been in the United States for years, has led a good life and has family here?  Family-based and employment-based petitions are still available although getting a green card through some of those categories may take years due to oversubscription (more people apply than there are annual visas available).  In addition, those who have not always been perfect may fear that they will be denied and deported due to a prior misrepresentation or criminal conviction.  However, waivers are possible for many grounds of inadmissibility – including past misrepresentations and crimes.  Another avenue for obtaining a green card is called cancellation of removal.  Unlike the other methods mentioned above, cancellation can only be granted by an immigration judge.  It cannot be applied for at USCIS.   While it may take years for a cancellation application to work its way through the courts, the applicant is entitled to work authorization during that entire time period.

To be eligible for a green card through cancellation, the applicant must prove that s/he has: (1) resided in the United States continuously for ten years; (2) has been a person of good moral character for those ten-years; (3) has not been convicted of certain criminal offenses; and (4) has a U.S. citizen or lawful permanent resident spouse, parent, or child under the age of twenty-one who would suffer exception and extremely unusual hardship if the application is not granted.  The key to approval of the application is establishing that the applicant meets each of these requirements and is deserving of lawful permanent residency as a matter of discretion. As with all other forms of relief, the applicant bears the burden of proving that s/he meets all the requirements. 

To meet the residency requirement the noncitizen must establish that they have resided continuously for ten-years in the U.S. prior to the date of the issuance of a Notice to Appear in Immigration Court.  However, there are nuances to this seemingly simple rule which merit attention.  Accrual of residency is stopped upon the commission of certain crimes.  Leaving the United States because of a removal order or under voluntary departure will also break the chain of physical presence.  However, the ten-year period need not be without any absence whatsoever.  An applicant is allowed to have been outside the United States for an aggregate of 180 days during the course of the ten-year period so long as any one absence did not exceed 90 days. 

The second and third requirements, good moral character and absence of certain criminal convictions are closely related but do not overlap entirely.  Good moral character can be cut off by conviction for certain crimes and by the commission of certain crimes for which one has not been convicted.  In addition, giving false testimony under oath in proceedings or through other statutorily-enumerated means will preclude one from establishing good moral character. However, established case law holds that “good moral character does not mean perfect moral character”. A full discussion of the criminal grounds of ineligibility will be discussed is a separate article but generally crimes considered to involve moral turpitude, aggravated felonies, and most drug related crimes will preclude eligibility.
The final requirement, exceptional and extremely unusual hardship to a USC or LPR spouse, parent or child, is usually the most difficult to satisfy.  “Exceptional and extremely unusual hardship” is hardship above and beyond the extreme hardship that applicants and their loved ones would suffer in a typical case of familial separation.  In assessing the hardship in any case the judge will look at a variety of factors such as health, finances, and psychological or emotional issues as well as family ties and conditions in the home country. In applying for cancellation, determining that the requisite hardship factors exist is just the beginning.  Establishing their existence to the satisfaction of the immigration judge by means of oral testimony, documentary evidence and use of experts in various areas is essential to the success of the process.

The risks in applying for cancellation are great but so are the possible benefits.  However, it is not and should not be treated as a “roll of the dice”.  Ensuring the best possible chance of success requires being represented by an experienced and knowledgeable immigration attorney who focuses on this form of relief.  Your ability to stay in the United States could depend on it.