Cancellation of Removal

If you find yourself in immigration court, it's important to hire a competent removal defense immigration attorney to help you stay in the United States. Noncitizens who have a U.S. citizen or permanent resident spouse or children you may be eligible to contest your deportation through a process called cancellation of removal for non-permanent residents.

Don't go it alone. The process is complex and you must provide extensive evidence to win. The qualifications for this form of relief are outlined below. After reading them, give us a call at 505-218-7265 to discover what options might exist to keep your family together.

Cancellation of Removal For Non-Permanent Residents

The application process requires the immigrant to show the following:

• He or she maintained a continuous physical presence in the U.S. for 10 years or more prior to the Notice to Appear,
• He or she is a person of good moral character,
• He or she has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA, and
• One of the following would result: His or her removal would result in exceptional and extremely unusual hardship to the immigrant's U.S. or lawful permanent resident spouse, parent, or child and thus he or she is deserving of favorable exercise of discretion.

Continuous Physical Presence

To qualify for cancellation of removal, an alien must show he or she has continuous physical presence for 10 years or more. The period of physical presence commences when the immigrant first physically enters the U.S. either legally or illegally.

The period of physical presence ends when one of the following occurs:

• The immigrant is charged and placed in deportation or removal proceedings,
• The immigrant commits an offense either inadmissible or removable, or
• The immigrant leaves the U.S. for a period of more than 90 days consecutively or 180 days aggregately.

Good Moral Character

To be eligible for cancellation of removal, an immigrant must show he or she is a person of good moral character. While there is no definition for “good moral character”, the law does defines what does not qualify as good moral character.

The law states the following individuals are not persons of good moral character:

• Habitual drunkards
• Prostitutes or individuals involved in commercialized vice,
• Individuals who have been convicted or, or admitted to the commission of, a crime involving moral turpitude,
• Individuals with multiple criminal convictions,
• Individuals who have been convicted of, or admitted of commission of, crimes related to controlled substances,
• Controlled substance traffickers,
• Smugglers,
• Individuals whose income is primarily derived from illegal gambling and individuals convicted of two or more gambling offenses,
• Anyone who has given false testimony to obtain an immigrant benefits,
• Anyone who has been confined to a penal institution for 180 days or more in the aggregate, and
• Anyone convicted of an aggravated felony under INA §101(a)(43).

Please note: This list is not comprehensive of individuals who are not persons of good moral character according to immigration law.

Additionally, any individual convicted of an aggravated felony under INA §101(a)(43) is barred from establishing good moral character if the felony conviction occurred on or after November 29, 1990.

The following individuals are barred forever from establishing good moral character for the purpose of cancellation of removal:

• An individual convicted of murder,
• An individual who gave false testimony during an asylum interview,
• An individual who assisted in illegally smuggling a spouse and/or child into the U.S,
• An individual who was incarcerated in county jail for a period of 365 days or more,
• An individual convicted of terroristic threats, and
• An individual who has been ordered removed from the U.S. and seeks admission within 5 years of the date of removal.
• Convicted Offenses Under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3)
• Those who are convicted for offenses under INA §§212(a)(2), 237(a)(2), or 237(a)(3) are ineligible for cancellation of removal.
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The following offense convictions fall under this rule:

• Crimes related to moral turpitude,
• Controlled substance violations,
• Prostitution or a commercialized vice,
• Firearms offenses,
• Domestic violence offenses,
• Document fraud,
• Falsification of documents, or
• Failure to register with the government.

Exceptional & Extremely Unusual Hardship

To be eligible for cancellation of removal, the applicant must show his or her removal would result in exceptional and extremely unusual hardship to the applicant's U.S. citizen or legal permanent resident spouse, parent, or child. Extreme Hardship is determined by the age of the individual, the family ties in the U.S. and abroad, the length of residence in the U.S., condition of health, conditions in the country to which the alien was returnable, economic and political conditions in the applicant's native country, financial status including business and occupational ties, the possibility of other means of adjustment of status, position in the community, community ties, and an individual's immigration history.

The BIA in 2001 defined “exceptional and extremely unusual” hardship as truly exceptional, but not unconscionable hardship. In other words, the hardship an individual faces must be substantially beyond that which ordinarily would be expected to result from deportation. Overall, generally lower living standards were insufficient to supporting a finding of exceptionally an extremely unusual hardship.

Contact a New Mexico Removal Defense Lawyer Today

At the Law Office of Scott D. Weave, we help noncitizens stay in the United States with their families by fighting their deportations in immigration court. If you or a loved one is facing deportation, call our office at 505-218-7265 or contact us using the online form to schedule a consultation and see what forms of relief you may qualify for.