Cancellation of Removal for Nonpermanent Residents

(1) Continuous Physical Presence

First, a non-citizen applicant must show that he or she has been physically present in the United States for a period of ten (10) years. An applicant's continuous physical presence stops after he or she has been issued Form I-862, Notice to Appear, if it contains the date, time, and place of your hearing. If it does not, then the 10 years may be counted up until a new Form I-862 is issued. The ten year requirement of continuous physical presence allows short absences from the United States. The absences must be less than 90 days at any one time, or less than 180 days in total if there have been numerous departures from the United States.

(2) No Convictions under INA 212(a), 237(a)(2), or 237(a)(3)

Second, an applicant cannot have certain criminal convictions. Under section 212(a) of the Immigration and Nationality Act, there are various crimes that disqualify a person from submitting Form EOIR-42B, Application for Cancellation of Removal for Certain Nonpermanent Residents. For instance, crimes involving prostitution, terrorist activity, etc., renders an individual ineligible to submit Form EOIR-42B. Likewise, under section 237(a), drug offenses, firearm offenses, domestic violence, trafficking in persons, etc., also renders an individual ineligible to submit an Application for Cancellation of Removal. Finally, under section 237(a)(3), a person convicted of document fraud or claiming to be a U.S. citizen may also be inelgible for this immigration relief before an Immigration Judge.

(3) Good Moral Character

Third, an applicant must show that he or she is a person of good moral character. Section 101(f) of the Immigration and Nationality Act governs "good moral character." For example, under section 101(f), a person that has served more than 180 days in jail cannot establish good moral character. Likewise, a person involved in prostitution, a habitual drunkard, failure to pay child support, fraudulent tax filings, etc., may show that a person lacks good moral character. An Immigration Judge may take other acts not described in section 101(f) into account when deciding whether or not a person has good moral character. For instance, a person convicted of driving without a license multiple times in recent years may weigh negatively against an applicant. Fortunately, an Immigration Judge considers an applicant's commendable behavior and actions as well when making a finding on "good moral character."

(4) Exceptional and Extremely Unusual Hardship

Finally, an applicant must show that his or her qualifying relative will suffer exceptional and extremely unusual hardship in the United States without the applicant or abroad with the applicant. A qualifying relative here is a U.S. citizen or legal permanent resident son, daughter, spouse, or parent.

Usually, this final element determines whether or not a person wins Cancellation of Removal, becoming a legal permanent resident. Exceptional and extremely unusual hardship is a very high legal standard. It is difficult to meet. In previous cases, the Board of Immigration Appeals has concluded that economic detriment, family separation, and language barriers are usually insufficient to amount to exceptional and extremely unusual hardship. Instead, an applicant must show hardship that is beyond that which is normally associated with removal or deportation. Because this is the most difficult element to meet, most of an applicant's time should be spent addressing this issue in his or her case.