Non-LPR Cancellation

Massa Viana Law

Non-LPR Cancellation


Proving exceptional and extremely unusual hardship

Certain immigrants who are placed in removal proceedings may be eligible to apply for a stay of their removal and eventual legal permanent resident status if they meet certain criteria, including demonstrating that their departure from the United States would cause a U.S. Citizen or Legal Permanent Resident immediate relative to suffer exceptional and extremely unusual hardship.

Cancellation of Removal is a defense from removal. As such, one can only apply for Cancellation if the person is in removal proceedings in Immigration Court.

In order to be eligible to apply for Cancellation, the applicant has had to have lived at least 10 years in the United States continuously—although not everyone who have entered over 10 years ago can apply.

The applicant also may not have any criminal bars and must show that he or she is a person of good moral character.

The applicant must also have a parent, child or spouse who will suffer exceptional and extremely unusual hardship. These family members, also known as qualifying relatives, must either be U.S. Citizens or Legal Permanent Residents (green-card holders).

By far, the hardest part of winning a Cancellation of Removal case is proving to the judge that the hardship that the qualifying relative will suffer qualifies as exceptional and extremely unusual. This standard is a high standard to be met in immigration court and it is where excellency in advocacy and good preparation for trial can make a difference.

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Frequently Asked Questions

Our office does not recommend applying for Asylum to pursue a Cancellation application in court. Filing a frivolous asylum application can bar a person from ever obtaining relief in the immigration code. Although we understand there is a difference of opinion in the legal community about this practice, our office considers it unethical from a legal standpoint.

This is a very high standard. The hardship must be significantly more than the typical hardship a family member would face upon the removal of a family member. It may include severe medical, educational, financial, or other personal challenges that a U.S. citizen or LPR family member would endure.

For the purposes of Cancellation of Removal, qualifying relatives include the applicant’s U.S. citizen or lawful permanent resident spouse, child, or parent.

It means the applicant must have lived in the U.S. without significant interruptions. However, brief and casual departures might not break the continuity, but extended trips outside the U.S. can be problematic.

Yes, absences that are over 90 days may impact your continuous presence. Also, continuous presence can be stopped by issuance of an Notice to Appear, the document that formally initiates removal proceedings against a person (this is called the “stop-time” rule).

How does the Niz-Chavez decision impact my Cancellation of Removal application?

The Niz-Chavez decision clarified that, for the stop-time rule to be triggered, the government must serve a complete NTA, meaning all relevant information about the removal proceedings must be contained in a single document. 

Is there a cap on the number of Cancellation of Removals granted each year?

Yes, there is a cap. Only 4,000 cancellations can be granted to non-LPRs in a fiscal year.

If I had a minor criminal conviction, can I still apply?

It depends on the nature of the conviction. Some convictions can disqualify an applicant, even if considered “minor”under state law. It’s crucial to consult with an immigration attorney to evaluate the specifics of the conviction and how it affects you in the Immigration context. At Massa Viana, our attorneys are knowledgeable in both criminal charges and their consequences and can provide such advice.

Can I work while my Cancellation of Removal application is pending?

You are eligible to apply for an Employment Authorization Document (EAD) while your application is pending, which, if granted, allows you to work legally in the U.S.

How long does the Cancellation of Removal process usually take?

The time frame can vary based on several factors, including the immigration court’s backlog and the specifics of your case. It can take several months to years.

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