Cancellation of Removal under INA Section 240A(b)(1)

By: Joseph G. Cella

As Cancellation of Removal for Non-Permanent Residents is a defense to a charge of being removable, one can only apply for it in Immigration Court. To be eligible for Cancellation of Removal under INA Section 240A(b), an alien-respondent must establish that s/he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of certain criminal offense(s); and (4) establishes 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 and/or an alien admitted for lawful permanent residence, (“qualifying relative”).

While the Cancellation Application is pending, the alien-respondent will receive Employment Authorization, and if the application is granted, the alien-respondent will continue to have employment authorization until such time as an I-551, (“Green card”), becomes available, ultimately becoming a lawful permanent resident.

Requirement 1: Continuous physical presence

For Cancellation purposes, continuous physical presence begins upon one’s arrival in the United States and ends either when the alien is served with a Notice to Appear (“NTA”) or when s/he has committed one of certain specified criminal offenses that renders him/her inadmissible. Any departure from the U.S. for a period of in excess of 90 days, or 180 days in the aggregate, also ends that alien’s period of continuous physical presence.

Requirement 2: Good Moral Character and No Disqualifying Criminal Convictions

The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board of Immigration Appeals, (“BIA”). an alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception remains eligible for cancellation of removal, because the commission of a “petty offense” does not bar the offender from establishing good moral character.

Requirement 3: Exceptionally and Extremely unusual Hardship

Although the requisite “exceptional and extremely unusual hardship” is substantially beyond that which would ordinarily result from an alien’s removal, it need not be unconscionable. Some of the factors to be considered in establishing the requisite level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. Although not determinative individually, other relevant considerations include a lower standard of living, diminished educational opportunities, and poor economic conditions, which may cumulatively meet the necessary hardship standard.

Joseph G. Cella, Esq. has been practicing immigration and removal/deportation defense law for over 21 years. He has been published in The New Jersey Law Journal and his cases have been the subject of articles in many publications. Mr. Cella is the founding attorney of Cella & Associates, LLC, with offices in Clifton, N.J. And Aventura, Florida.

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