Cancellation of Removal for Non-Lawful Permanent Residents Under INA § 240A(b)(1)

 

Introduction

cancellation of removal for permanent residentsEffective since April of 1997, certain persons in the United States who are not lawful permanent residents (LPRs) who are facing removal proceedings are eligible to receive a cancellation of removal from the Attorney General (AG). Non-LPRs who receive cancellation of removal will then be eligible for adjustment of status. This article will explain the rules for eligibility for non-LPR cancellation under INA § 240A(b)(1). To learn about cancellation of removal for LPRs, please see our full article on that subject.

Statutory Rules for Eligibility for Non-Lawful Permanent Resident (LPR) Cancellation of Removal

Before listing the requirements for eligibility, there are certain non-LPRs who are explicitly barred by statute from applying for cancellation of removal, regardless of whether they would be otherwise eligible:

  • Non-LPRs who previously received suspension of deportation1 or cancellation of removal;2
  • Non-LPRs whose removal proceedings commenced prior to September 30, 1996, the date the law governing cancellation of removal came into effect;
  • Non-LPRs who entered the United States as crewmen prior to June 30, 1964;
  • Non-LPRs admitted to the United States as exchange visitors (J-1 visas), who did not fulfill or obtain a waiver from the 2-year foreign residency requirement; and non-LPRs who were admitted as exchange visitors to receive graduate medical training regardless of whether or not they fulfilled the 2-year foreign residency requirement;3
  • Non-LPRs who are inadmissible or deportable on account of certain criminal or security grounds or on account of being found to have engaged in certain types of persecution.4

Although the question has not been directly addressed, one Court has held that beneficiaries of the visa waiver program (VWP) are ineligible for cancellation of removal.5

Pursuant to INA § 240A(b)(1), non-LPRs in removal proceedings on account of inadmissibility or deportability must satisfy certain requirements in order to be eligible for cancellation of removal.

Requirement for 10 Years of Continuous Physical Presence and the “Stop Time Rule”

A non-LPR must have at least 10 consecutive years of continuous physical presence in the United States in order to apply for cancellation of removal.

“Brief, casual and innocent” breaks in physical presence are permitted.6 He or she may satisfy this requirement if, in those 10 years, there was no single departure from the United States exceeding 90 days and there was less than 180 days in total over the course of 10 years.7 If the non-LPR served in the U.S. Armed Forces for at least 24 months in active-duty status, and is either not separated from the armed services or was separated under honorable circumstances, the non-LPR will be exempt from this requirement for purpose of applying for cancellation of removal.8

Certain events cause the clock on the non-LPRs physical presence to stop, and collectively these events constitute what is commonly called the “stop time rule.”

Continuous physical presence for the purpose of cancellation of removal stops accruing when a non-LPR is issued a Notice to Appear (NTA).9 Current judicial precedent and policy extends this rule to orders to show cause (OSC) issued prior to April of 1997 (i.e., before this statute containing provisions for cancellation of removal for non-LPRs replaced the old suspension of deportation provisions).10

The commission of certain criminal offenses that would render a non-LPR inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2) or (3) stops the accrual of continuous physical presence.11 If the crime is not explicitly listed in one of these three provisions, it does not end the non-LPRs continuous physical presence for cancellation of removal even if the crime renders him or her otherwise inadmissible.12 However, provided that the crime is covered by one of the provisions [e.g. a crime of moral turpitude (CIMT)], a conviction is not required to stop time.13

The judicial precedent for scenarios in which a non-LPR departs the United States, attempts to reenter within 90 days of departure, but is unable to enter, is somewhat varied with regard to the stop time rule. The Ninth Circuit has held that a non-LPR who attempted to enter, but who was charged and convicted for possessing a false identification document, was ineligible for cancellation due to the conviction being the functional equivalent of an order of deportation.14 Multiple Circuit Courts have held that withdrawing an application for admission at the border breaks physical presence.15 However, multiple Courts led by the Board of Immigration Appeals (BIA) have held that the stop time ruled does not apply for non-LPRs who are turned away at the border without being formally excluded, not found through a documented process to be inadmissible, not subject to an expedited order of removal, or not offered and subsequently accepting the opportunity to withdraw an application for admission.16

An expedited removal order stops the accrual of continuous physical presence.17 A prior order of exclusion, deportation, or removal will also stop time on continuous physical presence.18 Any departure from the United States under a grant of voluntary departure (VD), regardless of whether the departure is less than 90 consecutive days, severs continuous physical presence.19

Establishing Good Moral Character during the Statutory Period

In order to benefit from cancellation of removal, a non-LPR must demonstrate that he or she was of good moral character during the 10-year statutory period. To learn more about bars to establishing good moral character, please consult our full article on the subject.

No Convictions under Certain Sections of the INA

In order to be eligible for cancellation, a non-LPR cannot have a conviction for commission of a crime covered by INA §§ 212(a)(2), 237(a)(2), or 237(a)(3).

INA § 212(a)(2) states that aliens are inadmissible if he or she has been convicted of, admits to having committed, or who admits to committing acts which constitute the essential elements of:

  • a crime involving moral turpitude (CIMT); or
  • a violation of or conspiracy or attempt to violate any law or regulation relating to a controlled substance.

For those two categories, the statute contains an exception for crimes committed when an alien is less than 18 years of age. The statute also contains what has come to be known as the “petty offense exception,” wherein if the maximum possible penalty for the crime is not in excess of 1-year's imprisonment and, if the alien was convicted, he or she was not sentenced to a term of imprisonment in excess of 6 months [note that the sentence handed down is what is important, not how long the alien ultimately serves], he or she may not be inadmissible.

However, the exceptions do not hold in the event that the alien is convicted of 2 or more offenses for which the aggregate of sentences to confinement was in excess of 5 years.

INA § 237(a)(2) and (a)(3) describe crimes for which an alien is deportable. In addition to CIMTs and crimes involving controlled substances [note: excluding possession of 30 grams of marijuana or less for personal use], the relevant sections of INA § 237 list:

  • Crimes for which a sentence of 1 year or longer may be imposed [regardless of the actual sentence imposed];
  • Aggravated felonies;
  • High-Speed Flight [from an immigration checkpoint];
  • Failure to register as a sex offender [when applicable];
  • Certain firearm offenses;
  • Espionage or treason [where a sentence in excess of 5 years may be imposed], violation of any provision of the Military Selective Service Act or the Trading With the Enemy Act
  • Crimes involving domestic violence, stalking, violation of protection order, and/or crimes against children;
  • Trafficking;
  • Failure to register for documents or falsification of documents;
  • Document fraud;
  • Falsely claiming citizenship [unless alien demonstrates that he or she was a permanent resident prior to turning 16, parents were/are U.S. citizens, and alien reasonably believed that he or she was a citizen].

Crimes that fall under the petty offense exception in INA § 212(a)(2) do not render a non-LPR ineligible for cancellation of removal, provided that the maximum possible penalty does not exceed 1 year.20 Conviction of a second crime if the first crime was a petty offense does not trigger ineligibility so long as the second crime is not a CIMT.21 In Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), the BIA held that if an alien is convicted of a crime under a divisible statute, where part of the statute reaches CIMT offenses and another part of the statute does not, the burden is on the alien to demonstrate that he or she was convicted pursuant to the part of the statute that does not cover CIMTs.

There is no time limit on convictions of crimes that render a non-LPR ineligible for cancellation. Accordingly, if, for example, a qualifying CIMT was committed outside of the 10-year statutory period, the non-LPR would be ineligible for cancellation.22

Provided that the non-LPR was convicted of an applicable crime, it does not matter whether that crime was part of the charge on the NTA or OSC.23

Multiple Circuits have held that, provided the conviction is for something described under the applicable statutes, it need not render the non-LPR deportable in order for the non-LPR to be ineligible for cancellation of removal.24 This is important because the two statutes describing crimes that render applicants deportable require that the crimes have been committed within 5 years of entry. However, according to most current precedent, for purpose of cancellation, only the crime itself is relevant, and not whether the non-LPR is statutorily deportable for the crime.

The BIA held in Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011), that if a non-LPR obtains a waiver of inadmissibility pursuant to INA § 212(h) for a conviction for a crime described in INA § 212(a)(2), the non-LPR would be ineligible for cancellation.25 This is because what matters for cancellation eligibility is whether the non-LPR was convicted of a crime under section 212(a)(2), and not whether he or she is inadmissible.

Establishing Exceptional and Extremely Unusual Hardship

While many forms of immigration benefits demand that the applicant “extreme hardship,” cancellation of removal for a non-LPR demands that the applicant demonstrate “exceptional and extremely unusual hardship” if he or she were to be removed to a U.S. citizen (USC) or LPR who is the applicant's:

  • Spouse; and/or
  • Parent; and/or
  • Son or Daughter less than 21 years of age at the time an immigration judge adjudicates the cancellation application.26

Stepchildren are qualifying relatives provided that the relationship to the applicant commenced before the stepchild turned 18.27 While the bar is higher for demonstrating exceptional and extremely unusual hardship than for regular extreme hardship, extreme hardship factors are applicable insofar as they relate to qualifying relatives and not the applicant. Our full articles on extreme hardship and extreme hardship factors go into great detail about the factors that are considered in demonstrating extreme hardship.

One illustrative case is Matter of Recinas, 23 I&N Dec. 476 (BIA 2002). In this case, the applicant was a Mexican national who was the single mother of 6 children. Four of her children were USCs, and they served as qualifying relatives for purpose of her demonstrating exceptional and extremely unusual hardship. In this case, the BIA found that since there would be no one to care for the children in the United States, the children would likely have to follow the applicant to Mexico in the event of her removal. However, given the difficulties that the applicant would have supporting her children in Mexico, her children would suffer the requisite level of hardship in the event of her removal. What the BIA found goes beyond finding that the economic situation in Mexico would simply be less favorable than in the United States, which would not have supported the finding of the requisite level of hardship.28

Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), helped distinguish the higher hardship standard from the extreme hardship standard used for most other forms of immigration relief.29 In this case, the applicant claimed hardship for his two USC children in the event that they would return with him to Mexico to join his wife, who at that time was in Mexico with their infant child.30 He additionally claimed hardship would occur to his LPR parents, who would stay in the United States. While noting that he may have qualified under the extreme hardship standard, the BIA held that since his children could read and write Spanish, the applicant had not demonstrated he would be unable to find work in the United States, and because his parents had no health problems or other factors that would cause exceptional and extremely unusual hardship in the event that the applicant was removed to Mexico, he had failed to demonstrate that his qualifying relatives would incur exceptional and extremely unusual hardship [although the BIA found that they would incur a lesser degree of hardship].31

Only factors that may be taken into account in determining hardship may be considered, but all factors that must be taken into account for determining hardship must be considered by the immigration judge.32

Applying for non-LPR Cancellation of Removal

Non-LPR cancellation of removal may only be applied for before an immigration judge at a removal hearing.33 Pursuant to 8 C.F.R. § 1240.20, the application is filed using a Form EOIR-42B accompanied by the appropriate filing fee. If an applicant is presumably eligible for cancellation, the immigration judge is required to inform the applicat that he or she may apply.34

Annual Cap on Cancellation and Adjustment of Status

Pursuant to INA § 240A(e)(1), the number of people who may have removal cancelled and who then may adjust status is limited to 4,000 per fiscal year. Immigration judges are instructed to reserve final decisions on cancellation after 3,500 cases have been granted in a fiscal year.35 In this scenario, the immigration judge has the option of drafting a decision or reserving the decision until more non-LPR cancellation grants are available.36

Advice

In the event that a non-LPR finds him or herself in removal proceedings, he or she should retain an experienced immigration attorney who can assess the facts of the case and determine the best defense against removal given the circumstances. Depending on the facts of the case, the immigration attorney may find that the applicant is best served by applying for a less restrictive form of relief from removal if he or she may be eligible. In the event that pursuing regular non-LPR cancellation of removal is the best option, an experienced immigration attorney will help the applicant prove that he or she has the requisite physical presence, and that any crimes or criminal convictions [if applicable] were not on grounds that would render the applicant ineligible for cancellation.

Provided that the applicant is otherwise eligible, the most difficult aspect of obtaining cancellation of removal will likely be establishing exceptional and extremely unusual hardship to a qualifying relative. While there is no guarantee that an applicant in any given case will be able to meet the standard, an experienced immigration attorney will be able to help the applicant make the most compelling possible case given the circumstances.

____________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1368, citing INA § 212(c) for statute regarding suspension of removal, a form of relief applicable to similar situations as cancellation of removal which was in effect prior to April 1, 1997; Velasco v. Holder, 736 F.3d 944 (10th Cir. 2013) [Court held that suspension of removal barred cancellation]; Maldonado-Gaindo v. Gonzalez, 456 F.3d 1064 (9th Cir. 2006) [Holding that bar for persons previously granted suspension is not “impermissibly retroactive”]
  2. Kurzban 1368, citing INA § 212(A)(c)
  3. INA § 240(A)(c)
  4. Kurzban 1368, citing INA § 240(A)(c); The prohibited security and persecution grounds are listed in INA §§ 212(a)(3), 237(a)(4). They include terrorist activities, seeking entry to the United States for the commission of certain crimes deemed by the Secretary of State to cause significant foreign policy consequences for the United States, involvement in Nazi persecution, genocide, torture, or extrajudicial killing, participation in severe violations of religious freedom, recruitment or use of child soldiers
  5. Kurzban 1369, citing, Itaeva v. INS, 314 F.3d 1238, 1241-43 (10th Cir. 2003)
  6. Kurzban 1372, citing INA § 240A(d)(2)
  7. INA § 240A(d)(2)
  8. INA § 240A(d)(3)
  9. Kurzban 1350, citing, Matter of Camarillo, 25 I&N Dec 644 (BIA 2011) [stop time applies even if NTA does not contain time and date of hearing]; Soto v Holder, 736 F.3d 1009, 1011 (1st Cir. 2013); Cheung v Holder, 678 F.3d 66 (1st Cir. 2012); Dababneh v. Gonzalez, 471 F.3d 806, 810 (7th Cir. 2006); Guamanrriga v. Holder, 670 F.3d 404 (2d Cir. 2012); Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004)
  10. Kurzban 1350, citing Suassuna v. INS, 342 F.3d 578 (6th Cir. 2003); Afful v. Ashcroft, 380 F.3d 1, 6-7 (1st Cir. 2004); Rivera-Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000); Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999)
  11. Kurzban 1351, citing INA § 240A(d)(1)(B)
  12. Kurzban 1351, citing, Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161-62 (9th Cir. 2009); Matter of Garcia, 25 I&N Dec. 332 (BIA 2010)
  13. Kurzban 1351, citing, Matter of Jurado, 24 I&N Dec. at 31; Torres De La Cruz v. Maurer, 483 F.3d 1013, 1019-22 (10th Cir. 2007)
  14. Kurzban 1369, citing, Mireles-Valdez v. Ashcrof, 349 F.3d 213, 217-19 (5th Cir. 2003)
  15. Kurzban 1369, citing, Demandstein v. Att'y General of the U.S., 639 F.3d 653 (3d Cir. 2011); Valdez-Munoz v. Holder, 623 F.3d 1304, 1310-12 (9th Cir. 2010); Mendez-Reyes v. Att'y General of the U.S., 428 F.3d 187 (3d Cir. 2005)
  16. Kurzban 1369, citing, Matter of Avilez-Nava, 23 I&N Dec. 799, 805-06 (BIA 2005); Ibarra-Flores v. Gonzalez, 439 F.3d 614, 618-20 (9th Cir. 2006); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907-09 (8th Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004)
  17. Kurzban 1369, citing, Nunez-Moron v. Holder, 702 F.3d 353, 358-59 (7th Cir. 2012); Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011); Juarez-Ramos v. Gonzalez, 485 F.3d 509 (9th Cir. 2007)
  18. Kurzban 1369, citing, Landin-Zavala v. Gonzalez, 488 F.3d 1150 (9th Cir. 2007)
  19. Kurzban 1369, citing, Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002); Garcia v. Holder, 732 F.3d 308 (4th Cir. 2013); Barrera-Quintero v. Holder, 699 F.3d 1239, 1244-46 (10th Cir. 2012); Reyes-Sanchez v. Holder, 646 F.3d 493 (7th Cir. 2011); Ascenio-Rodriguez v. Holder, 595 F.3d 105 (2d Cir. 2010); Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. 2008); Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Vasquez-Lopez v. Ashcroft, 315 F.3d 1201 (9th Cir. 2003); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-19 (5th Cir. 2003)
  20. Kurzban 1365, citing, Matter of Garcia-Hernandez, 23 I&N Dec. 590, 592-93 (BIA 2003) [petty offense does not trigger inadmissibility]
  21. Kurzban 1365, citing, Castillo-Cruz v. Holder, 581 F.3d 1154, 1161-62 (9th Cir. 2009)
  22. Kurzban 1366, citing, Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008)
  23. Kurzban 1366, citing, Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. 2010); Matter of Almanza, 24 I&N Dec. 771, 776 (BIA 2009)
  24. Kurzban 1366, citing, Matter of Cortez, 25 I&N Dec. 301, 307 (BIA 2010); Nino v. Holder, 690 F.3d 691, 696-98 (5th Cir. 2012); Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 651 (9th Cir. 2004).
  25. Kurzban 1367
  26. Kurzban 1367, citing, Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir. 2002) [holding that definition of “child” does not include son or daughter who is over 21 years of age]; Matter of Isidro, 25 I&N Dec. 829, 832-33 [holding that son or daughter must be less than 21 years of age when the application for cancellation is adjudicated]
  27. Kurzban 1367, citing, Matter of Morales, 25 I&N 186 (BIA 2010)
  28. See, Matter of Andaloza, 23 I&N Dec. at 320 [comparative economic hardship does not meet the standard for exceptional and extremely unusual hardship]
  29. Ferguson 1368
  30. Id.
  31. Ferguson 1369
  32. Garcia v. Holder, 621 F.3d 906, 910-12 (9th Cir. 2010); Pareja v. Att'y Gen of the U.S.,
  33. Kurzban 1375, citing 8 C.F.R. §§ 1240.11(a)(1), 1240.20
  34. Kurzban 1375, citing, Duran v. INS 756 F.2d 1338 (9th Cir. 1985) [case referred to suspension of deportation]
  35. Kurzban 1371, citing O'Leary, CIJ, EOIR, Procedures on Handling Applications for Suspension/Cancellation in Non-Detained Cases Once Numbers are no Longer Available in a Fiscal Year OPPM 12-1 (Feb. 3, 2012), published on AILA InfoNet at Doc. No. 12020666
  36. Id.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1350-51, 1365-71, 1375. Print. Treatises & Primers.