Legal Law News

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Cancellation of Removal Issues

Factors For Grant of Cancellation of Removal:

The application for cancellation of removal (EOIR-42B) was granted pursuant to section 240A(b)(1) of the Immigration an d Nationality Act because the Mexican respondent had proven:

  1. Ten years of continuous physical presence in the United States at the time of service of the Notice to Appear on June 1, 2001, the respondent having entered the United States without inspection (EWI) from Mexico in February 1990;
  2. Person of good moral character, no crime having been committed within the aforesaid 10-year period; and
  3. Exceptional and extremely unusual hardship. For example, a 15-year old, U.S.- born son, recipient of numerous academics awards in Math and Science, and requiring future medical operation to remove screws from a dislocated femur.

Difficulty Of Obtaining Cancellation of Removal:

Cancellation of removal under the Immigration and Nationality Act is a statutory pathway to lawful permanent resident status (”green card”) for aliens who entered without inspection or who entered with inspection but are overstaying, and who have worked without employment authorization.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) replaced the relief of suspension of deportation that required seven years of continuous physical presence, good moral character, and extreme hardship to the applicant and qualifying relatives, with cancellation of removal with more stringent requirements: ten years of continuous physical presence, good moral character, and exceptional and extremely unusual hardship to qualifying relatives (no longer including the applicant).

In this Authors experience, the relief of cancellation of removal could be granted, if the alien respondent placed in removal proceedings by the issuance, service, and court filing of the Notice to Appear, can prove statutory eligibility, and warrant favorable exercise of discretion, because his or her qualifying relatives: U.S.-citizen or lawful permanent resident spouses, parents, or children (below 21-years old), would suffer aforesaid heightened hardship due to advanced age and/or significant medical problems.

The older the child, 15 years old or older, the more hardship he or she would suffer, if brought to, raised, and educated in the parent’s home country. Surgical intervention in the future, as in the above case, could be the clincher to obtaining cancellation of removal and adjustment of status before the Immigration Court.