If you are a green card holder that the government is trying to deport, you may be eligible to apply to the Immigration Judge for Cancellation of Removal for Permanent Residents using form EOIR-42B (plus supporting documents) if you meet each of the following conditions:
1. You have been a lawful permanent resident of the US for at least 5 years;
2. You have resided continuously in the US for a minimum of 7 years after being admitted to the US. in any status (prior to the institution of removal proceedings). Under the “stop-time” provision in INA § 240A(d)(1), the 7-year period since admission ceases to accrue:
“(A) …. when the alien is served a notice to appear under section 239(a), or
(B) when the alien has committed an offense referred to in section 212(a)(2) that
renders the alien inadmissible to the United States under section 212(a)(2) or
removable from the United States under section 237(a)(2) or 237(a)(4),
whichever is earliest.” ;
3. You have not been convicted of an aggravated felony; and
4. You are not inadmissible from the US on security grounds.
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In order to be granted cancellation of removal for permanent residents, you must be able to convince the Immigration Judge that the positive factors in your case outweigh the negative factors.
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Cancellation of Removal for Permanent Residents – Positive and Negative Factors
Positive factors include: (1) Family ties within the US; (2) Long time residency in the US; (3) Hardship to person and immediate family; (4) Service in US Armed Forces; (5) Employment history; (6) Ownership of property and business ties; (7) Service to the community; (8) Rehabilitation (if criminal record exists); and (9) Good moral character.
Negative factors include: (1) Nature and circumstances of exclusion grounds; (2) Other immigration law violations; (3) Criminal record, especially the seriousness and recency of any convictions; and (4) Other evidence of bad character. The following classes of persons are ineligible for cancellation of removal for permanent residents:
- Persons who have been convicted of aggravated felonies;
- Certain crewmen;
- Exchange visitors (in “J” status) who received medical training in the US;
- Persons who have persecuted others;
- Persons who have previously been granted cancellation of removal, suspension of deportation or a waiver under section 212(c); and
- Persons who committed certain criminal offenses prior to the accrual of the required 7 years.
It is important to note that if you obtained your green card through fraud, you are ineligible to apply for cancellation of removal.
Winning your case depends on carefully assembling evidence to show that the positive factors in your case outweigh the negative factors so that the Immigration Judge will be inclined to exercise his discretion to grant your application. It is important that you choose an attorney to represent you in court who is highly experienced in deportation defense. It is useful to read an example of a successful application for cancellation of removal.
Aggravated Felonies – Effect on Cancellation of Removal for Permanent Residents
An aggravated felony conviction makes a person ineligible for cancellation of removal. Aggravated felonies include crimes of violence where you were sentenced to one year or more of imprisonment (regardless of time actually served), murder, rape, drug-trafficking crimes, theft or burglary if you were sentenced to one year or more of imprisonment (again, regardless of time actually served), and crimes involving fraud where the loss to the victim exceeds $10,000. An attempt or conspiracy to commit an aggravated felony is also deemed an aggravated felony.
Cancellation of Removal for Permanent Residents – Additional Resources
– The U.S. Supreme Court ruled that a lawfully admitted permanent resident who is not seeking admission to the United States can be “rendered inadmissible” for the purposes of the stop-time rule.
– The BIA ruled that if a criminal conviction was charged as a ground of removability when cancellation of removal was granted, that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.