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What is cancellation of removal?
In the United States, cancellation of removal is a process that
This is a benefit granted by the U.S. government through the Executive Office for Immigration Review (EOIR) of the Immigration Court for immigrants who reside permanently in the country without legal authorization.
This petition is filed by completing and submitting Form EOIR-42A or B, Application for Cancellation of Removal and Adjustment of Status. However, it is not easily accessible, as a maximum of 4,000 visas are granted per year.
Definition and legal background
The cancellation of removal is a tool created to replace "Suspension of Deportation," which was in effect until 1997. The deportation process is regulated by the Immigration and Nationality Act (INA) and takes several factors into account, especially
There are a number of serious crimes that directly affect the immigration process, such as offenses related to violence, firearms, drugs, or fraud.
Who can apply for cancellation of removal?
As explained above, cancellation of removal is aimed at undocumented immigrants who have lived in the United States for many years. Specifically, it is a benefit granted by the
This type of immigrant is a permanent resident who must have a record of impeccable moral character: they must not have a criminal record, infractions, or fines. They must also not have a prior deportation order.
Once the cancellation request is initiated, and if it is considered a favorable case, the immigrant
Before filing any application, it is recommended to seek advice from a trusted lawyer or legal representative.
Types of cancellation of removal
Currently, the U.S. government provides different avenues for undocumented immigrants who are permanent residents of the country to apply for cancellation of removal.
These are EOIR-42A and EOIR-42B. The acronym EOIR stands for Executive Office for Immigration Review, and it is the office that, along with the Board of Immigration Appeals, forms part of the agencies responsible for tracking immigration cases in the courts.
Cancellation of removal for permanent residents (EOIR-42A)
Foreign nationals who have obtained a Green Card and become permanent residents are not exempt from being deported in the future. This is why Form EOIR-42A was created for the cancellation of removal for permanent residents.
The form includes questions designed to determine the applicant's eligibility for cancellation and costs $305 USD, plus an additional $85 USD for biometric data.
Among the requirements to be met is demonstrating a history of employment and residence in the country.
Cancellation of removal for non-permanent residents (EOIR-42B)
The cancellation of removal process for undocumented immigrants (EOIR-42B) consists of demonstrating good moral character throughout the period of their stay in the United States before an immigration judge.
When filing Form EOIR-42B, there are two possible options: if the applicant has lived in the country for ten years or more, or if the applicant has lived in the country for three or more years.
Factors considered in cancellation of removal
In this process, several factors are considered when determining an applicant's eligibility for cancellation of removal. These factors must be presented before an immigration judge or the immigration court.
However, one must remain vigilant, as these requirements may change due to any updates to the Immigration and Nationality Act (INA).
Good moral character
The immigrant must demonstrate to a judge and the immigration court that during the years they resided there, the applicant maintained good moral character and did not commit any offenses, infractions, or violations of conduct and community standards.
Family ties and exceptional hardship
When the applicant has a parent, child, or spouse who is a U.S. citizen or holds a Green Card, this becomes a factor to take into consideration, as in such cases, deportation can result in exceptional hardship for family ties.
Criminal history and serious crimes
Linked to the first requirement, the Immigration and Nationality Act (INA) establishes a clear limit regarding the commission of serious crimes. This is why the applicant must demonstrate that they have a clean criminal record.
Special situations in cancellation of removal
Cancellation of removal for victims of domestic violence
If the immigrant or their child has been a victim of domestic violence by a U.S. citizen or a lawful permanent resident, the immigration judge may cancel the removal.
Use of the J Visa in deportation cases
The J Visa is for individuals participating in a cultural or educational exchange. This can be favorable before the immigration court, as the exchange program may be of national interest or have a positive impact on the region.
Furthermore, it can be demonstrated to an immigration judge that the student or exchange participant has established roots in the community and has created new, close ties.
Marriage fraud as a cause for deportation
Marriage fraud is a crime that involves a sham marriage between a foreign national and a U.S. citizen or lawful permanent resident, solely for the purpose of obtaining legal status in the country.
Under the Immigration and Nationality Act (INA), if it can be proven, it would constitute grounds for the immigrant's deportation.
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