Cancellation of removal for non-permanent residents
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 combined deportation and exclusion proceedings before an immigration judge into a single new process called removal proceedings. An alien, whether a Lawful Permanent Resident or not, who is placed in removal proceedings before an immigration judge, may have several remedies available to him to prevent his removal from the United States.
One remedy is entitled Cancellation of Removal. There is one form of Cancellation that is available solely to applicants who are Lawful Permanent Residents, and there is another form of Cancellation that is available to non-lawful permanent resident applicants.
An alien who is not a permanent resident and is placed in removal proceedings can qualify for Cancellation of Removal relief if he or she: (a) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of the application; (b) has been a person of good moral character during such period; (c) has not been convicted of certain criminal offenses under the Immigration and Nationality Act; and (d) establishes that removal from the United States would result in exceptional and extremely unusual hardship to the alien’s qualifying relative, namely his spouse, parent, or child, who is a citizen or lawful permanent resident of the United States.
To establish 10 years’ continuous presence in the United States, documentation that can be submitted to support the application would include copies of birth certificates of children born during the relevant period; evidence of marriage during the period; evidence of employment during the period; academic records during the period; medical records during the period; copies of bank statements during the period; copies of filed income tax returns during the period; evidence of property purchased or leased during the period; copies of credit cards held during the period; and evidence of medical or life insurance held during the period.
However, the period of 10 years’ continuous physical presence is cut off on the earlier of the following: (1) when the applicant is served with the Notice to Appear before the immigration judge, or (2) the commission of certain specified offenses under the Immigration and Nationality Act. The 10 years’ continuous presence can also be cut if the alien left the United States for more than 90 days on any individual trip, or for any period in the aggregate exceeding 180 days, or leaves the United States under a grant of voluntary departure. An applicant who has served at least 24 months in active duty status in the armed forces does not need to fulfill the continuous physical presence requirements.
The “exceptional and extremely unusual hardship” requirement is a heightened standard. The immigration judge usually exercises favorable discretion in cases where the qualifying relative of the alien suffers from a serious medical condition and relies on the alien applicant for assistance. Medical records would be required to support such a claim. It should be noted that financial hardship or the trauma caused by separation from family members generally does not meet the heightened standard.