Cancellation of Removal for Nonpermanent Residents

Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents

Immigrants who have a requisite amount of presence in the United States, are of good moral character, and have a United States Citizen or Lawful Permanent Resident spouse or child can seek Cancellation of Removal for Certain Nonpermanent Residents, if before an Immigration Court.  The adjustment of status of aliens granted relief under Cancellation of Removal for Certain Nonpermanent Residents is limited to 4,000 per fiscal year.

INA section 240A adopts the “exceptional and extremely unusual” standard and ten year period of physical presence that was contained in former section 244(a)(2) which related to those who were deportable under certain grounds, some very serious, e.g., crimes involving moral turpitude, controlled substance offenses, possession of semi-automatic or automatic weapons, sawed off-shotguns, serious security related grounds, etc. Some of the grounds were very serious.

The statute states that alien must prove that he has been continuously present for ten years “immediately preceding the date of such application” and “has been a person of good moral character during such period.”  Additionally, the alien has to establish that he “has not been convicted of an offense” described under certain Sections of the Immigration and Nationality Act.

The alien has to establish that removal “would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”  The statute clearly omits the possibility of establishing that the alien’s removal would result in a hardship to an offspring 21 years or over since the definition of a “child” does not include a son or daughter who is 21 years or older for this purposes of this section.  It is important to note that while an alien’s hardship is generally not relevant, the Board has stated that “factors that relate only to the respondent may be considered in the extent that they affect the potential level of hardship to her qualifying relatives.”

Continuous physical presence is cut off by the “stop-time rule,” which is either date a Notice to Appear is served, or the date of the commission of a certain criminal offense.  Departures from the U.S. by the alien for a period in excess of 90 days or any periods in the aggregate exceeding 180 days will break his continuous physical presence.  The continuous physical presence requirement is not applicable to an alien that was in the U.S. at the time of induction into the U.S. Armed Forces and has served in an active-duty status for a period of twenty-four months.  If he has separated from the Armed Forces, it must have been under honorable conditions.

The calculation of the period of good moral character is calculated backward from the time the application is finally resolved by the Immigration Judge or the Board.  This is because the application is a continuing one.  It is not affected by the “stop-time” rule.  This can be advantageous when proceedings are delayed or on-going for a long period of time as an earlier act that could result in a lack of good moral character may move outside the statutory period.

Special Rule for Battered Spouse or Child

INA 240A(b)(2)(A) provides relief for alien spouses or children that have been battered or subjected to extreme cruelty.  The requirements for a showing of good moral character and the physical presence requirements are modified if a nexus is proven between the inability to establish good moral character or the absences affecting continuous physical presence and the battering or extreme cruelty.  Additionally, only three years of physical presence is required.

Do Not Fight Alone.

If you or a family member are facing removal from the United States, do not fight alone.  To successfully claim Cancellation of Removal for Certain Nonpermanent Residents is no easy task. You need an immigration attorney that knows the law, regulations, and the evidence requirements.  You need Baurkot & Baurkot Law.  Call (484) 544-0022 for a free, confidential consultation.