Holders of permanent resident status, nonimmigrant visa holders, and individuals without legal status who are facing deportation proceedings in the United States can petition the immigration court to cancel their removal under Section 240A of the United States Immigration and Nationality Act.
Securing a cancellation under Section 240A offers forgiveness for the alien’s prior immigration violations. Once deportation is canceled, the individual either regains permanent resident status. However, not all grounds for initiating deportation proceedings can be negated through this legal procedure. Additionally, an immigrant is only entitled to apply for cancellation of removal once in their lifetime.
If the immigration judge rejects the cancellation request, the individual is likely to face a removal order. Nonetheless, if the application for cancellation of removal is initially denied, the immigrant retains the right to appeal to the Board of Immigration Appeals and to the federal appellate court.
The Process of Cancelling Removal for Permanent Residents
The procedure for obtaining cancellation of removal varies based on the immigrant’s status at the outset of court proceedings. If the immigrant initially held a green card, he or she must meet several key prongs. First, he or she must have been a permanent resident for at least five years. Second, he or she must have resided continuously in the United States for seven years following legal entry into the country. Third, he or she must not have committed any serious crimes as defined in section 101(a)(43) of the Immigration Act. Caution is advised here, as many offenses that might have led to convictions in state courts could be deemed particularly serious under immigration law, even if considered minor or not especially serious under state law.
For Non-Permanent Residents Seeking Deportation Relief
Individuals without permanent resident status can seek relief from deportation by meeting specific criteria. First, they must provide evidence of having lived in the United States for 10 years prior to filing the petition. Secondly, the alien is required to demonstrate to the immigration judge that he or she has maintained “good moral character” throughout those 10 years. Thirdly, the immigrant must demonstrate that he or she has not committed certain crimes listed in various sections of the Immigration Act, specifically 212(a)(2) (involving drug offenses and crimes of moral turpitude), 237(a)(2) (other criminal offenses), and 237(a)(3) (forgery). Fourthly, the alien needs to prove to the judge that his or her deportation from the United States would result in exceptional and extremely unusual hardship to their spouse, parents, or children, who are either U.S. citizens or green card holders.
It is important to note that in both of the aforementioned scenarios, the immigration judge will weigh a combination of positive and negative factors to determine whether the immigrant deserves permission to remain in the United States. This second part of the legal inquiry is obligatory for the court, even after it has been established that a petition fulfills all the specified requirements.
An immigration judge may consider various factors, such as family connections, employment history, community involvement, duration of residence in the United States, property ownership and other assets, criminal record, past immigration violations, and expressions of regret and remorse for any misconduct. Typically, evidence submitted with applications for cancellation of removal includes documentation of family ties, testimonies from witnesses about significant events in the person’s life, expert economic opinions on the financial impact of removal, as well as diplomas, certificates, letters of recommendation, and medical bills from local hospitals.
It is crucial to understand that the presence of all positive factors does not obligate the judge to cancel removal in a particular case. The judge retains discretion to make a decision based on his or her assessment of the situation.
Length of Residence in the U.S.
To establish a foreigner’s residence duration in the United States for the required seven or 10 years, it is essential to demonstrate the alien’s having continuously lived in America throughout this period. Any departure from the United States during this time typically disqualifies an immigrant from obtaining a cancellation. However, exceptions exist for temporary departures that do not significantly disrupt the individual’s intent to reside in the United States. For instance, in one case, a court determined that a two-hour departure of an illegal alien to Mexico did not adversely affect the immigrant’s continuous stay in the United States. Conversely, a court ruled that a six-week departure of illegal immigrants from the United States to Germany interrupted their stay because they were aware of their illegal status and attempted to conceal it by returning. The impact of leaving the United States on the continuity of residence is assessed based on factors such as the duration of absence, the purpose of the trip, and the sincerity of intentions upon returning to the United States.
It is also important to note that committing crimes in the United States interrupts the continuity of an individual’s residence. In other scenarios, if the alien has no criminal or other violations, their time in the United States is considered interrupted upon receiving a Notice to Appear from the immigration court.
Jump Back Half a Century
The criteria for cancellation of removal in the United States have evolved over the history of American immigration law. Prior to 1940, neither the U.S. Attorney General nor immigration authorities had the power to delay the removal of illegal immigrants from America. The only available option for foreigners to remain in the United States was through a private bill drafted by a U.S. Congress member specifically to halt a particular immigrant’s deportation (a measure still available today).
Starting in 1940, immigration officers gained the authority to cancel deportations for immigrants if their removal would cause serious economic harm to them and their relatives. This standard focused solely on economic factors and did not encompass general hardship, as modern requirements do. Nevertheless, this legislative change enabled courts and immigration officers to consider the differences between the individuals’ lives in America and their potential lives in other countries. Additionally, the longer a person lived in the United States and the greater their financial assets, the stronger the likelihood was for their petition to cancel deportation to be successful.
In 1952: New Standards for Deportation Relief
With the introduction of new rules in 1952, immigrants seeking relief from deportation had to demonstrate exceptional and extremely unusual hardship to themselves or their families. Despite changes in legal wording, deportation cases in the 1950s still predominantly focused on the economic and financial issues faced by individuals on the verge of removal. This emphasis continued until 1962, when new legislation reduced the threshold from exceptional and extremely unusual hardship to extreme hardship. During this period, which could be considered the most lenient in modern American immigration history, immigrants in deportation proceedings could argue for staying in the U.S. by proving extreme hardship to themselves or their loved ones.
The Shift in 1996
The situation shifted significantly in 1996, when the required level of hardship that foreigners had to prove was raised back from ordinary extreme hardship to exceptional and extremely unusual hardship. Additionally, to cancel deportation, it became necessary to demonstrate that these exceptional and extremely unusual difficulties would affect not the immigrant himself, but his close relatives who are citizens or permanent residents of the United States.
Exceptional and Extremely Unusual Hardships
It is a recognized fact that any foreigner facing deportation will invariably endure serious hardship. However, the mechanism for canceling removal is not designed for every foreigner with good moral character who has been in the United States for 10 years. It must be substantiated with specific facts and legal arguments that the deportation of a particular immigrant would inflict exceptional and extremely unusual hardship on their spouse, children, or parents who are U.S. citizens or green card holders. These hardships should be markedly different from those experienced by any other family facing the deportation of a loved one by U.S. authorities. In instances where exceptional and extremely unusual hardship cannot be established for a single family member, it is permissible to present evidence showing that the combined hardships of two or more individuals amount to exceptional and extremely unusual hardship under immigration law.
Factors considered by U.S. courts in deciding whether to vacate deportation based on relatives’ hardship include the number of years lived in the United States, family connections, relationships among family members, the relatives’ ability to obtain visas for foreign travel, financial struggles due to deportation, and considerations of age and health, as well as the emotional impact of separation on family members. It is typically required to prove not only that family members would suffer exceptional and extremely unusual hardship if they remained in the U.S. when their loved one gets deported but also that the deported immigrant’s family would experience similar hardship if they tried to relocate to the immigrant’s new country.
Family Connections
Family ties hold significant importance in American society, and the prospect of separating family members requires thorough consideration. In several court cases, the presence of family connections and the potential for family separation have served as constitutional grounds for canceling removal. Conversely, an alien lacking family ties in the United States may find this fact adversely affecting his or her request for cancellation of removal. Children born to foreigners residing in the U.S. are American citizens, but the birth of a child to a foreigner facing deportation does not automatically confer privileged status. The circumstance of children accompanying deported parents abroad does not, on its own, constitute sufficient hardship to cancel removal. Similarly, potential inconveniences for a child due to the deportation of his or her foreign-born parent are not adequate to demonstrate particularly extreme hardships.
From the Immigration Service’s perspective, a key reason for rejecting this argument is the potential for circumventing immigration laws by foreigners who enter the country and have children. The mere presence of a native-born child does not warrant removal cancellation. However, if the foreign parent demonstrates a strong bond with their child, and the child is deeply attached to the parent, deportation under such circumstances can be deemed very distressing. The fact that citizen children are of school age could influence the decision regarding removal cancellation, particularly if continuing education in the parent’s country of citizenship is unfeasible.
Financial Difficulties
A foreign national who must sell a business or property due to deportation may qualify for cancellation, especially if the loss negatively impacts their relatives in the United States. Immigration courts have, in several decisions, concurred with arguments that losing a business constitutes extreme hardship. In other instances, financial loss was deemed insufficient to pose an extreme hardship. Minor economic difficulties are generally not accepted by most courts as grounds for canceling deportation.
Age and Health
The age and health of a foreigner and his or her spouse, parents, and children can be significant factors in deciding on removal cancellation. These aspects are challenging to assess. Foreign nationals and their relatives who have resided in the U.S. for an extended period often find it easier to prove extreme hardship compared to younger individuals or those who have lived in the country for a shorter duration.
Other Factors
Various additional factors may be considered by the Immigration Service and courts in removal cancellation cases. The Board of Immigration Appeals has taken into account factors like an alien’s participation in combat, loyalty to the United States, as well as proficiency in English and knowledge of U.S. history. However, lower authorities often rely on more traditional criteria to establish hardships.
What Is Omitted in the Law
Despite the rigorous refinement of immigration rules concerning the cancellation of removal by the U.S. Congress, federal courts, and the Board of Immigration Appeals, several notable omissions remain. A notable gap is that, according to the strict wording of the law, permanent residents who have held a green card for less than five years are not eligible to file a petition for cancellation of removal. This aspect of the Immigration Act presents a contradiction with the principles of the U.S. Constitution. There appears to be no rational justification for why individuals who have lived in the United States for an extended period under nonimmigrant status should lose the opportunity to file for deportation relief simply because they have not held a green card for a full five years. This discrepancy highlights a potential area of unfairness within the current immigration legislation, where the length of lawful residency seems to be inconsistently valued in the context of removal relief eligibility.
