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Cancellation of Removal for Nonresidents and Adjustment of Status for Non-Permanent Residents

(A) Have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) Have been a person of good moral character during such period;

(C) Have not been convicted of certain crimes, and

(D) Establish that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Cancellation of removal for non-permanent residents is a discretionary form of relief, so the applicant also must demonstrate that he or she warrants a favorable exercise of the court's discretion.

 

 Issues to address

1. 10 years from date of entrance until issuance of NTA (or the date he committed an offense making him inadmissible or deportable because of criminal conviction)

  • Proof of Entry Date
  • Proof of residency as listed on the application
  • Any time outside of the US

2. Exceptional & Extremely Unusual Hardship

  • Country Conditions
  • Language capability of children
  • Lack of additional academic/medical documentation for children
  • Lack of testimony about availability of doctors in home country
  • Can the spouse go legally to applicant's home country
  • Impact of loosing Applicant's income without financial records
  • Impact of inability to keep family together

3. Credibility / Good Moral Character

  •  Use of different names
  • Inconsistent statements
  • No legal marriage
  • Lack of evidence of involvement in community activities, church, children’s school
  • Criminal Records - seriousness, rehabilitation, plausible explanation for criminal acts
  • Immigration history - entries without inspections
  • Work history or lack of
  • Tax history or lack of

 Documents to collect

  1. Personal Statement from Applicant in support of his Application for Cancellation.
  2. Marriage Certificate. Must be legally married to be qualifying relative for purposes of evaluating hardship
  3. Spouse's immigration Status (birth certificate, green card, certificate of Naturalization).
  4. Children's immigration Status (birth certificate, green card, certificate of Naturalization)
  5. An affidavit of a spouse that she does not speak the applicant’s language.
  6. Proof of entry date (plane, bus tickets, letters from relatives in home country with knowledge, landlords letters, friends letters, employers letters, correspondence, junk mail with dates)
  7.  Doctor's letters for relatives indicating diagnosis, required treatment, medications available in applicant's country and the effect of relocation to the other country
  8. Teachers' letters commenting on the child's performance in school, special programs that are not available in other countries, languages spoken, parents' involvement, health problems, family as a whole, opportunities in home country.
  9. Parent's letter about the children (wants to be a scientist, wants to work for NASA)
  10. Documentation proving financial hardship to the spouse (tax returns, businesses)
  11. Documentation showing work in the US (letters, tax returns)
  12. Applicant's Alcohol Treatment or Counseling, Driver Improvement Program, Clean Urine Tests

How to request Cancellation of Removal for non-residents.

Use Form EOIR 42B to request Cancellation of Removal for non-residents.

Plenty of cancellation of removal cases have been denied on the grounds that, although the applicant has shown that his/her deportation would cause hardship, that hardship doesn’t meet the standard of “exceptional and extremely unusual hardship.”

To meet this standard, you must show that your deportation would cause your child, spouse, or parent to suffer a hardship, which would be substantially worse than the hardship normally expected from deportation to an underdeveloped country. Mere economic hardship wouldn't qualify under this restrictive standard.

 

If you have an upcoming hearing in Immigration Court before an Immigration Judge and you don’t have a green card/permanent resident status, cancellation of removal for non-residents might protect you from deportation. Schedule a consultation with Irina Vinogradsky, immigration attorney, who can represent you in immigration court.