Cancellation of Removal for non-LPRs

You may be eligible to apply for a green card through Cancellation of Removal for non-LPRs before an Immigration Judge if you are in removal proceedings and you have resided in the US for at least 10 years.

In order to apply, you must meet each of the following requirements:

1. You have been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the U.S. Armed Forces, were present in the U.S. during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.

You have been a person of good moral character for ten years;
You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.

Exceptional and Extremely Unusual Hardship

To establish “exceptional and extremely unusual hardship,” you must show that your qualifying relative would suffer hardship substantially beyond that which would ordinarily result from your removal from the United States. Hardship to yourself will not be considered by the Immigration Judge. The Judge will consider your qualifying relative’s age, health, length of residence in the United States, as well as family and community ties in the U.S. and abroad. All hardship factors should be considered in the aggregate.

Generally, a determination by an Immigration Judge that an applicant does not meant the hardship requirement can be appealed to the Board of Immigration Appeals (BIA). However, if the BIA agrees with the Judge, the applicant cannot appeal the BIA’s decision denying cancellation of removal for non-LPRs to the Federal Courts.

However, on March 19, 2024, the U.S. Supreme Court, in Wilkinson v. Garland, held that the application of the statutory “exceptional and extremely unusual hardship” standard to a given set of facts presents a mixed question of law and fact, and therefore, can be challenged in a Federal Court of Appeals.

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The Board of Immigration Appeals (BIA) has determined that diminished educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.”

The BIA has published the following decisions to define the hardship standard in cancellation of removal for non-LPRs cases:

Special relaxed rules for cancellation of removal for non-LPRs apply to battered spouses and children.

Only 4,000 persons may be granted cancellation of removal for non-LPRs and suspension of deportation in a single fiscal year.

What To Do Before You Apply

If you are already in removal proceedings and meet the statutory qualifications for applying for cancellation of removal, it is probably a wise idea to apply. However, if you are not in removal proceedings, and cancellation of removal seems to be your only option to legalize your immigration status, think twice before applying. If you lose, you could be deported. In any case, it is best to schedule a consultation with an immigration attorney experienced in presenting such cases in Immigration Court.

For an example of a family who was granted cancellation of removal for non-LPRs by an Immigration Judge, please see Cabrera Family Wins Right to Remain in US