Permanent residents are foreign nationals who have been granted permission to stay in the U.S. by the U.S. government for the rest of their lives. However, since they are not citizens and since the U.S. constitution gives Congress the power over immigration there are many ways for a permanent resident to lose their status.
One of the most common ways is to commit or be convicted of some sort of criminal offense. After the permanent resident serves his or her time the U.S. government may seek to deport or, as it’s called now, remove that individual.
In the past there were a variety of ways to overcome deportation proceedings. However, absent a claim at asylum or something similar most permanent residents are only left with seeking “Cancellation of Removal”.
At its most basic a request for Cancellation of Removal is simply a plea not to be deported. However, as is always the case, Congress created a few hoops that have to be jumped through before the permanent resident is eligible.
First, the individual must have been a permanent resident for 5 years before apply for Cancellation. Next, the individual must be able to show continuous residency in the U.S. for 7 years after being admitted in any legal status. The road block Congress put up here is that the 7 years presence will stop accruing when the resident commits an act that renders him or her removable. So, if a person is a resident for 6.5 years and is arrested for possession of a controlled substance they are not eligible for cancellation of removal even if the U.S. government does not try to remove them until after the 7 years of presence has accrued. Also, the resident cannot have been convicted of an aggravated felony.
The judge will balance hardships against the offense or offenses and past history of the resident and determine if cancellation is warranted as a matter of discretion.
Some factors in favor of cancellation are:
- Strong family ties in U.S.
- A long residency in the U.S.
- Evidence of hardship to family and self if deported
- Served in Armed Forces
- Solid history of employment
- Property owner or individual with ties to business
- Evidence of service to the community
- Proof of rehabilitation
- Evidence of good character
The request is filed using an EOIR-42A form with a fee before the individual hearing on the case. Should the request be granted the case against the resident will be terminated and they will be able to continue living their lives. However, if they are placed in removal again it is unlikely that they will be able to seek Cancellation of Removal again.