I have been in the United States a long time, and now I have a court hearing. What options do I have?
One of the options available, may be Cancellation of Removal under section 240A(b) of the Immigration and Nationality Act.
What is Cancellation of Removal?
Cancellation of removal is form of immigration relief that is available to individuals in removal proceedings who meet the following requirements:
- Residence in the United States for a continuous period of at least 10 years before the start of removal proceedings
- Person of good moral character who has no serious criminal convictions
- Can establish the and extremely unusual hardship to their spouse, parent, or child (under 21), who is a citizen of the United States, or an individual admitted for lawful permanent residence.
An application for cancellation of removal is only available to individuals currently in removal proceedings. An applicant may only file a cancellation of removal application with the Immigration Judge; it cannot be presented to United States Citizenship and Immigration Services.
Once the application is filed with the Immigration Court, the applicant can apply for an Employment Authorization Document (“EAD”), which if approved, will be valid for one-year. An applicant’s EAD may be renewed during the period for which the cancellation of removal application remains pending. A grant of the application for cancellation of removal awards the applicant permanent residence in the United States.
How do I win my case?
The most challenging part of a cancellation of removal case is demonstrating that the qualifying family member(s) will suffer exceptional and extremely unusual hardship as a direct consequence of the applicant’s removal from the United States. An Immigration Judge reviews many applications for cancellation of removal every month, and to be successful, an applicant must do his/her best show why his or her case is different than those similarly situated. The case law surrounding applications for cancellation of removal provides that certain hardships are normally associated with the separation or deportation of a loved one, so the “expected” hardships of financial loss and a disruption of daily life will generally not be enough to have the Immigration Judge grant a Cancellation of Removal application.
When deciding an application, the Immigration Judge considers factors such as the qualifying relatives family ties to the United States; the conditions of the applicant’s home country and its affect on the qualifying relatives if they relocate; and the challenges the qualifying relatives would experience if they stay in the United States without their loved one. While qualifying relatives are not required to demonstrate medical hardship to be successful, it is often a strong factor that works in support of approval. Most importantly, a successful application for cancellation of removal must be well prepared and meticulously documented – a factor that illustrates the benefit of working with an immigration attorney experienced with Cancellation of Removal proceedings.
When will I know the outcome of my case?
Immigration law permits that only 3,500 applications for Cancellation of Removal can be approved in a fiscal year. Until a few years ago, this threshold was never reached. Now, as is the case with many other applications for immigration benefits, a substantial backlog exists. At the time of writing of this article, the Immigration Judge cannot approve applications for Cancellation of Removal until October 2014. If no numbers are available when an application for Cancellation of Removal is presented at a final hearing, the Immigration Judge will reserve his or her decision until such time that these numbers are available. The upside to this backlog is that the applicant continues to be eligible for employment authorization until such time that a final decision is made.
If you are currently in removal proceedings and believe you are eligible for Cancellation of Removal, it is recommended that you meet with a licensed immigration attorney who focuses his/her practice on this area of immigration law. To contact one of the attorneys of Immigration Attorneys LLP click HERE
Immigration Attorneys, LLP focuses its practice in the area of immigration and nationality law. We represent clients in a wide variety of immigration case matters including family and employment-based work, deportation defense work, immigrant and non-immigrant visa work, consular processing overseas and naturalization matters.