Immigration Judges are authorized to cancel the removal or deportation under certain specified conditions.
Cancellation of Removal for Permanent Residents
A lawful permanent resident (LPR) of the United States who is placed in removal proceedings before an Immigration Judge is eligible for Cancellation of Removal if he or she meets the following requirements:
- Has been lawfully admitted as a permanent residence for at least five (5) years;
- Has resided in the United States continuously for seven (7) years after having been admitted in any status; and
- Has not been convicted of an aggravated felony.
The term “aggravated felony” refers to a list of crimes set forth by Congress and others defined by the Courts.
The term is misleading because some offenses are included even though they are neither “aggravated” or felonies.
In short, some misdemeanors will be considered to be aggravated felonies for removal (deporation) purposes.
Cancellation of Removal for Non-Permanent Residents
A non-lawful permanent resident (non-LPR) can qualify for Cancellation of Removal if he or she meets these requirements:
- Has been physically present in the United States for a continuous period of at least 10 years preceding the date of the application for cancellation of removal;
- Has been a person of good moral character during the ten-year period;
- Has not been convicted of any crime(s) that can render him or her inadmissible or deportable; and
- Establishes that removal (deportation) would result in exceptional and extremely unusual hardship to his or her spouse, parent, or child who is a citizen or lawful permanent resident of the United States.
“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.
Persons not of good moral character include, but are not limited to, the following:
- 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 the sentence was a total of 5 years or more of 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.
If you are an Aggravated Felon or have committed a crime involving moral turpitude, you are deportable or inadmissable to the United States.
Aggravated felonies are listed in the Immigration & Nationaliuty Act (INA) but crimes involving moral turpitude (“CIMT”) are not defined.
The Courts have ruled that a CIMT generally refers to conduct that is “inherently base, vile, or depraved.”
Consequently, 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.
Examples of CIMT’s are offenses involving fraud and theft.
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“Exceptional and Extremely Unusual Hardship”
Typically, the the most difficult obstacle to obtaining cancellation of removal for non-permanent residents is proving exceptional and extremely unusual hardship. This is defined as hardship that is substantially beyond that which would ordinarily be expected to result from an alien’s deportation.
The person or persons suffering the hardship must be a U.S. citizen or lawful permanent resident spouse, parent, or child of the removable alien.
Hardship to the applicant himself is irrelevant.
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 he or she 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 Cancellation of Removal), should explore other forms of relief such as asylum, withholding of removal, and/or relief under the Convention Against Torture.