Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents

• Aliens Eligible for Cancellation of Removal:

You may be eligible to have your removal canceled under section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:

 A. 1. Prior to the service of the Notice to Appear, you have maintained a continuous physical presence in the United States for ten (10) years or more, and you have been a person of   good moral character as defined in section 101(f) of the INA during such period;

2. You have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and

3. Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident spouse, parent, or child, and you are deserving of a favorable exercise of discretion on your application.

OR

B. 1. You have been battered or subjected to extreme cruelty in the United States by your United States citizen or lawful permanent resident spouse or parent, or you are the parents of a child of the United States, citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or lawful permanent resident parent;

2. Prior to the service of the Notice to Appear, you have maintained a continuous physical presence in the United States for three (3) years or more and you have been a person of good moral character as defined in section 101(f) of the INA during such period;

3. You are not inadmissible under sections 212(a)(2) or 212(a)(3) of the INA, you are not deportable under section 237(a)(1)(G) or sections 237(a)(2)-(4) of the INA, and you have not been convicted of an aggravated felony as defined under the INA;

4. a. Your removal would result in extreme hardship to you or your child who is the child of a United States citizen or lawful permanent resident; or
   b. You are a child whose removal would result in extreme hardship to you or your parent;
   and

5. You are deserving of a favorable exercise of discretion on your application.

Note: If you have served on active duty in the Armed Forces of the United States for at least 24 months, you do not have to meet the requirements of continuous physical presence in the United States. You must, however, have been in the United States when you entered the Armed Forces. If you are no longer in the Armed Forces, you must have been separated under honorable conditions.

• Aliens NOT Eligible for Cancellation of Removal:

You are not eligible for cancellation of removal under section 240A(b)(1) of the INA if you:

A. Entered the United States as a crewman after June 30, 1964;

B. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section 212(e) of the INA;

C. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(e) of the INA, but have neither fulfilled nor obtained a waiver of that requirement;

D. Are an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under section 237(a)(4) of the INA;

E. Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or

F. Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, whose removal has previously been cancelled under section 240A of the INA.

If you are eligible for Cancellation of Removal, please contact our office for further consultation.

Cancellation of Removal and Adjustment of Status for Certain Permanent Residents

• Permanent Resident Aliens Eligible for Cancellation of Removal:

You may be eligible to have your removal canceled under section 240A(a) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:

A. You have been a permanent resident for at least five (5) years;

B. Prior to service of the Notice to Appear, or prior to committing a criminal or related offense
     referred to in sections 212(a)(2) and 237(a)(2) of the INA, or prior to committing security or related offense referred to in section 237(a)(4) of the INA;

— you have at least seven (7)years continuous residence in the United States after having been lawfully admitted in any status; and

C. You have not been convicted of an aggravated felony. NOTE: If you have served on active duty in the Armed Forces of the United States for at least 24 months, you do not have to meet the requirements of continuous residence in the United States. You must, however, have been in the United States when you entered the Armed Forces. If you are no longer in the Armed Forces, you must have been separated under honorable conditions.

•   Permanent Resident Aliens NOT Eligible for Cancellation of Removal:

You are not eligible to have your removal canceled under section 240A(a) of the INA if you:

A. Entered the United States as a crewman after June 30, 1964;

B. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive a graduate medical education or training, regardless of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section 212(e) of the INA;

C. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(e) of the INA but have neither fulfilled nor obtained a waiver of that requirement;

D. Are an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under section 237(a)(4) of the INA;

E. Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or

F. Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or whose removal has previously been canceled under section 240A of the INA.

If you are eligible for Cancellation of Removal, please contact our office for further consultation.

• Who is not qualified for Cancellation of Removal?You are not eligible for cancellation of removal under sections 240A(b)(1) of the INA if you:
  1. Entered the United States as a crewman after June 30, 1964;
  2. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section 212(e) of the INA;
  3. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(3) of the INA, but have neither fulfilled nor obtained a waiver of that requirement;
  4. Are an alien who is either admissible under section 212(a)3) of the INA or deportable under section 237(a)(4) of the INA;
  5. Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or
  6. Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigration Responsibility Act f 1996, whose removal has previously bee cancelled under section 240A of the INA.

• Is it risky to apply for cancellation of removal?
  Yes, it is very risky to apply for cancelation or removal because it can be requested only in a deportation case. In other words, you will have to turn yourself in to the INS and request cancellation of removal from the judge. This is very risky because if the judge denies the case, you will have to leave the country. Therefore, generally it is not in someone’s interest to turn himself or herself in to the INS to request cancellation of removal. If you believe you qualify for cancellation of removal, you should seek immediate legal assistance.