"Cancellation of Removal" as a Relief from Deportation


Aliens that are subject to removal/ deportation proceedings for violating the US immigration laws may be faced with very limited options in seeking relief from removal in Immigration Court. This is specialy true in the case of an alien that does not have any family or employment based petition, and no basis for seeking asylum. Hope may still exist though for these type of deportable alien if they have been physically in the US for long period of time (anywhere from 7 years to 10 years depending if the alien is an lpr or non lpr) The alien may be eligible to apply for “Cancellation of Removal” in immigration court.

Relief through cancellation of removal is available only in removal proceedings and cannot be directly sought from the Department of Homeland Security. The relief is available for both permanent residents as well as “nonpermanent” residents. Due to space limitations, this article will focus on the requirements for a “nonpermanent” resident to obtain cancellation of removal. For “nonpermanent residents,” the immigration court may cancel removal proceedings providing certain requirements are met.

First, the alien must have continuous physical presence in the United States for ten (10) immediately preceding the application. The time requirement is reduced to three (3) years for battered spouses and children. A question naturally arises as to what constitutes “continuous physical presence.” For purposes of cancellation of removal, continuous physical presence is that which is not broken by departure for more than 90 days at one time, or 180 days total. Furthermore, continuous physical presence is deemed to end by service of notice of removal proceedings, by departure under a threat of removal (even if no Notice to Appear was ever served on the alien), or by the commission of an offense resulting in inadmissibility.

Second, the alien must show that he was of good moral character during the period of continuous presence. As with the continuous presence requirement, requirements are less stringent for battered spouses and children—the court may overlook waivable conduct associated with the abuse.

Third, the alien must not have been convicted of an aggravated felony. In addition, an alien must show that he has not been convicted for any offense for which a criminal ground of inadmissibility or deportability or a registration/misrepresentation ground of deportability. This requirement also varies for battered spouses and children.

Lastly, it must be shown that the removal would result in “Exceptional and Extremely Unusual hardship” to a family member. “Exceptional and extremely unusual hardship” to the U.S. citizen or permanent resident spouse, parent, or child of the alien must be shown. For battered spouses and children, the hardship shown can be to the alien, the alien’s child, or the alien’s parent.

Relief through cancellation of removal is discretionary and is not available for aliens in certain circumstances. Accordingly, if you are in removal proceedings, it is advised that you consult with an experienced attorney to determine whether cancellation of removal is a viable option to pursue.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com; visit at www.kenreyeslaw.com

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