Cancellation of Removal
1. Cancellation of Removal for LPRs
An individual who is a lawful permanent resident of the United States and who is placed into removal proceedings in Immigration Court may be eligible for cancellation of removal if s/he meets the following three requirements:
(1) S/he has been lawfully admitted for permanent residence for at least five (5) years;
(2) S/he has resided in the United States continuously for seven (7) years after having been admitted in any status; and
(3) S/he has not been convicted of an aggravated felony.
The term “aggravated felony” refers to a list of crimes set forth by Congress. The term is deceiving, as there is no requirement that the listed offenses by either “aggravated” or felonies. In fact, many misdemeanors qualify as aggravated felonies.
2. Cancellation of Removal for Non-LPRs
An individual in removal proceedings who is NOT a lawful permanent resident may still qualify for cancellation of removal if s/he meets the following four (4) requirements:
(1) S/he has been physically present in the United States for a continuous period of at least ten (10) years preceding the date of issuance of the Notice to Appear (“NTA”);
(2) S/he has been a person of good moral character during the ten-year period;
(3) S/he has not been convicted of any crime(s) that render him/her inadmissible or deportable; and
(4) S/he must establish that removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child who is a citizen or lawful permanent resident of the United States.
3. “Good Moral Character”
Although the term “good moral character” itself has not been defined by Congress, the Immigration and Nationality Act (“INA”) does list persons who are NOT of good moral character.
Examples of persons NOT of good moral character include, but are not limited to:
• Habitual drunkards;
• Persons who have engaged in prostitution, commercialized vice, and/or alien smuggling;
• Aliens previously removed;
• Aliens who have committed a crime involving moral turpitude or a controlled substance offense;
• Aliens suspected of being controlled substance traffickers;
• Aliens with multiple criminal convictions for which s/he was sentences to a total of 5 years or more confinement;
• Aliens with 2 or more gambling offenses or whose income is principally derived from illegal gambling;
• Aliens who have given false testimony for the purpose of obtaining an immigration benefit;
• Aliens confined to imprisonment for a total of 180 days or more during the period required of physical presence;
• Aliens who have committed an aggravated felony.
4. Deportable/Inadmissible Crimes
The crimes that most often render an alien deportable or inadmissible are aggravated felonies and crimes involving moral turpitude (“CIMT”).
Aggravated felonies, as discussed above, are listed in the INA. CIMTs, however, are not defined in the INA. Over the years, the courts have determined that the term generally refers to conduct that is inherently base, vile, or depraved. A CIMT is an illegal act that is, in itself, morally reprehensible and intrinsically wrong, as opposed to an act that is wrong simply because it is prohibited by law. Some examples include offenses involving fraud, as well as crimes of theft, which are both considered to be CIMTs. Murder, rape, assault, kidnapping, and similar offenses are also CIMTs.
5. “Exceptional and Extremely Unusual Hardship”
This is perhaps the most difficult requirement to meet when applying for COR as a non-lawful resident. The term refers to hardship that is substantially beyond that which would ordinarily be expected to result from the person’s departure.
It must be established that the hardship would be suffered by the U.S. citizen or lawful permanent resident spouse, parent, or child of the removable alien, NOT by the removable alien himself.
Some factors considered in determining exceptional and extremely unusual hardship include, but are not limited to:
• Age of the qualifying U.S. citizen or lawful permanent resident relative, particularly if elderly or young children;
• Health of the qualifying relative, especially very serious health issues;
• Circumstances of the qualifying relative. For example, a U.S. citizen child with special needs in school;
• If the qualifying relative is a child, whether s/he can speak, read, or write in the alien’s native language.
Removable aliens who fear returning to their home country (and who have no qualifying relative for COR) should explore other forms of relief such as asylum, withholding of removal, and/or relief under the Convention Against Torture.
