Cancellation of Removal/Deportation for Hardship
05/02/07
10/26/04
The Immigration and Nationality Act (INA) specifies a number of reasons for deportation of aliens from the U.S. These include, but are not limited to, when the alien:
Was inadmissible at the time of entry or has violated the conditions of entry or conditions of the nonimmigrant status;
Is guilty of one of a number of specified crimes, such as a crime of moral turpitude, an aggravated felony, a drug related crime, certain firearm offenses, crimes of domestic violence or multiple crimes;
Has engaged in activities that pose a threat to U.S. security, such as terrorism;
Has failed to register with authorities, used falsified or fraudulent documents, or falsely claimed U.S. citizenship; or
Has unlawfully voted in a federal, state, or local election.
Cancellation of Removal
Even though the alien falls within one of these categories and may be deported or "removed," the alien may apply for "cancellation of removal" and adjustment of status. The U.S. Attorney General has the power to grant this relief to aliens who were lawfully admitted to permanent residence but are now subject to deportation, if the alien:
Has never been convicted of an aggravated felony;
Has been an alien lawfully admitted for permanent residence for not less than 5 years; and
Has resided in the U.S. continuously for 7 years after having been admitted in any status.
Certain nonpermanent resident aliens, initially inadmissible or deportable, may also be eligible for cancellation of deportation and adjustment of status, if the alien:
Has been physically present in the U.S. for a continuous period of not less than 10 years immediately prior to the application;
Has been a person of good moral character during that period;
Has not been convicted of certain specified crimes; and
Establishes that removal would cause "exceptional and extremely unusual hardship" to a spouse, parent, or child who is a U.S. citizen or lawful permanent resident.
Application of the Law on Cancellation of Removal
In a 2001 case, the Board of Immigration Appeals (BIA) demonstrated application of this law. The alien in that case conceded that he was removable from the U.S., but applied for cancellation of removal. The alien was a native and citizen of Mexico, who had been in the U.S. for almost 20 years, since he was 14 years old. His wife had recently returned to Mexico, but he had two citizen children here and his parents were also U.S. citizens.
The BIA agreed that the alien met the residence, good moral character, and lack of conviction requirements, but concluded that he had not met the hardship requirement. Only hardship to his parents and children (not the alien himself) was relevant. The BIA concluded cancellation requires showing only "extreme hardship". The hardship has to be "substantially" beyond ordinary hardship expected when a close family member leaves. The relief is limited to "truly exceptional" situations, although the deportation does not have to be "unconscionable."
Limitations on Cancellation of Removal Relief
The INA specifies that certain aliens are ineligible for cancellation of removal, including aliens who are inadmissible or deportable on security and related grounds, certain "nonimmigrant exchange aliens," and certain aliens who have persecuted others on the basis of race or ethnicity. In addition, subject to some exceptions, the Attorney General may grant such cancellations to no more than 4,000 aliens in any one fiscal year.
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