Historically, there has been a form of relief called a suspension of deportation for aliens who had been present in the United States for long periods of time, avoided problems with the criminal authorities, and could show that their forced removal from the country would result in a high level of hardship to certain individuals. However, in 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (”IIRAIRA”), Congress eliminated the former suspension of deportation as a form of relief from deportation. In its place, Congress enacted a form of relief called ”cancellation of removal for certain non-permanent residents,” found under the Immigration and Nationality Act (”INA”) Section 240A(b)(1).
The statutory requirements for cancellation are much higher than those of the former suspension statute. An individual seeking cancellation of removal under this statute can no longer claim eligibility based on hardship to him- or herself. Now, hardship to the alien’s U.S. citizen or legal permanent resident (”LPR”) spouse, parents or children must be shown. Also, the level of hardship that must be proven has risen from ”extreme hardship” to ”exceptional and extremely unusual hardship.” Exceptional and extremely unusual hardship means that the applicant’s removal would cause hardship to that qualifying relative that rises beyond the normal hardship that is expected in the case of removal, such as financial hardship. Such hardship can most readily be proven when the applicant’s qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant’s native country.
Additionally, cancellation of removal requires 10 years’ physical presence in the United States, and the applicant must show that s/he has been a person of good moral character for the 10-year period. Individuals who have been convicted of certain crimes including moral turpitude and aggravated felonies are ineligible, as are individuals who are believed to be threats to national security.
Cancellation of removal is a discretionary form of relief, meaning that not only does the applicant have to meet the statutory standards as outlined in the INA, but the individual must prove that s/he is discretionarily deserving of the benefit. Cancellation of removal leads to LPR status (Green Card) and is a valuable form of relief.
Unfortunately, there is no derivative status for spouses or children of those seeking cancellation of removal. Each individual must qualify on his or her own merits. In addition, cancellation of removal is a ”defensive” form of relief; thus, it may only be sought and received in removal proceedings as a defense to deportation after an individual has been found removable.
For any further inquiries, please contact our office for a consultation.
