42-B Cancellation of Removal

May 15, 2023 by Keith Mikesell

Cancellation of removal is a way to stop removal proceedings against you. If you succeed in your application for cancellation, you will no longer be in removal proceedings. An immigration judge (IJ) will listen to your case and decide if you qualify for cancellation of removal. To apply, you must file a EOIR-42B application.
            To qualify for cancellation of removal you must show: (1) that you have physically been in the United States for 10 years, without leaving; (2) good moral character during the 10 years; (3) no convictions of an aggravated felony, drug related crime, or other serious crimes; and (4) hardship to your United States citizen or lawful permanent resident spouse, child, or parent.
10-year physical presence

            You must stay inside of the United States for 10-years. However, you will stop collecting this time if you are given a notice to appear to immigration court, or when you commit a serious crime that would make you deportable/inadmissible. You must have the 10 years before you are given a notice to appear or commit a serious crime. If you do not have the 10 years, then you may not qualify for cancellation of removal.
            If you leave the United States, you cannot have left for longer than 90 days at one time, or more than 180 days during the entire 10 years. You must show proof of your 10 years inside of the United States. This can be shown by government documents; receipts; pictures; letters from family; work related documents, like paystubs; or bills, like rent or electricity bills.
Good Moral Character
            The IJ must decide if you have good moral character. There is no specific definition for good moral character. However, the IJ will look over the 10 years inside of the United States and decide if: you drink too much, you have committed an aggravated felony, smuggled other aliens, committed a crime of moral turpitude, had more than one spouse at a time, committed crimes that will add up to being in prison for longer than 180 days.
            A crime of moral turpitude is considered a serious crime, like fraud, murder, rape, drug-related crimes, and other crimes that make the IJ think you do not have good moral character.
Exceptional and extremely unusual hardship
            You must show two things: (1) you have a spouse, child, or parent that is a United States citizen or lawful permanent resident and (2) your removal from the United States will be too much of a hardship on that relative.
Your relative
            You must show that your removal will hurt a spouse, child, or parent that is considered a United States citizen or a lawful permanent resident. Your child must be under 21-years-old until the removal proceedings are over. If you have a stepchild, they must be under 18 until the removal proceedings are over. If you appeal IJ’s decision, your child can turn 21 and your stepchild can turn 18. If you or your spouse is pregnant, the baby does not count as a child until it is born.
            The hardship must show serious harm to your relative. It must be more than just the pain of separation or some financial limitations. The IJ will look at several factors to determine if there is serious harm to your relative. This will include the relative’s age, health, and their circumstances. An example is a very ill relative, or you are the only person who provides money for your family.
            Hardship is typically broken down into three categories: 1) financial, 2) emotional, and 3) medical. During the trial, or “Merit’s Hearing”, the Immigration Judge, the Department of Homeland Security Attorney, and your immigration attorney will be examining each of these factors for the qualifying relative. It must be determined whether, based on all of the circumstances, that your qualifying relative will suffer any of these types of hardships.
            You should provide documents that show a continuous amount of time in the United States. These documents can be bank statements, leases, deeds, licenses, receipts, letters, birth records, church records, school records, employment records, or tax payments. The amount of evidence will always vary per case, but providing as much as possible is advised, as you only have one attempt at winning an already overly difficult case.
            The evidence for good moral character can include proof of charity, or volunteering. It can also include letters and sworn statements from friends, family, employers, clergy, or other people that explain why you have a good moral character.
            You must also show official documents that you are related to the United States citizen or lawful permanent resident that would be extremely harmed by your removal from the United States. This proof can be birth certificates, marriage certificates, proof of divorce, and death certificates.
            For both emotional and medical hardships, the Immigration Court typically requires more than just paperwork, but rather actual evaluations and recommendations from medical professionals stating each emotional or medical hardship and the degree to which the qualifying relative will suffer them in the absence of the relative seeking Cancellation of Removal.
            Again, you cannot give false answers or documents to the IJ. If you provide false evidence, you will no longer qualify for cancellation of removal, and you may be imprisoned and/or fined.

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