Cancellation of Removal for Non-Permanent Residents

The Three Forms of Cancellation

Immigration law has three types of cancellation of removal. Each type is for a different group of people and has its own rules.

Cancellation for Non-Permanent Residents

This type is for people who do not have a green card. Many of our clients in Dallas and Houston qualify under this category. It has the strictest requirements of the three, and this page explains them in detail below.

Cancellation for Lawful Permanent Residents

This type is for people who already have a green card but now face removal, often because of a criminal conviction. Green card holders apply using Form EOIR-42A. To qualify, you must:

• Have been a lawful permanent resident for at least 5 years.
• Have lived in the United States continuously for at least 7 years after a lawful admission.
• Have no aggravated felony conviction.

Cancellation Under VAWA

This type is for people who suffered battery or extreme cruelty from a spouse or parent who is a U.S. citizen or lawful permanent resident. VAWA stands for the Violence Against Women Act, but it protects people of any gender. VAWA cancellation is filed on Form EOIR-42B. You generally must show:

• At least 3 years of continuous physical presence in the United States.
• Good moral character during that time.
• That removal would cause extreme hardship to you, your child, or your parent.

The Four Requirements for Non-Permanent Residents

To win cancellation of removal as a non-permanent resident, you must prove all four requirements below. If you cannot prove even one, the judge must deny your case.

Ten Years of Continuous Physical Presence

You must show that you have lived in the United States for at least 10 years without a break. Some trips outside the country can break this time:

• One trip longer than 90 days.
• Several trips that add up to more than 180 days.

The 10 years are counted back from the date the clock stops. The Stop Time Rule section below explains when that happens.

Good Moral Character

You must show good moral character during the 10-year period. The judge looks at how you have lived your life. Certain actions can prevent a finding of good moral character, such as:

• Lying under oath to get an immigration benefit.
• Some drug offenses.
• Time in jail of 180 days or more for a conviction.

The judge also looks at positive factors, like steady work, paying taxes, and involvement in your community or church.

No Disqualifying Criminal Convictions

You cannot have a conviction for certain crimes listed in immigration law. These include many drug offenses, some crimes involving moral turpitude, and other offenses that make a person inadmissible or deportable. Even a minor case can matter. An attorney should review every arrest and conviction in your history before you apply.

Exceptional and Extremely Unusual Hardship to a Qualifying Relative

You must show that your removal would cause exceptional and extremely unusual hardship to a qualifying relative. A qualifying relative is your:

• U.S. citizen or green card holder spouse.
• U.S. citizen or green card holder parent.
• U.S. citizen or green card holder child who is unmarried and under 21.

Hardship to you alone does not count. The hardship must be to one of these family members.

What Exceptional and Extremely Unusual Hardship Actually Means

This is the hardest requirement to prove. The hardship must be much greater than the normal pain a family feels when a loved one is deported. Sadness, separation, and lost income are common in every removal case, so they are usually not enough by themselves.

Judges look at all the facts together. Factors that can help show this level of hardship include:

• A child or spouse with a serious medical condition that needs ongoing care.
• A child with special educational needs or a disability.
• A relative who depends on you financially and has no other support.
• Poor conditions in your home country that would harm your relatives if they went with you.
• The ages of your relatives and how strong their ties are to the United States.

One strong factor may not be enough, but several factors together can meet the standard.

The Stop Time Rule

The Stop Time Rule decides when your 10 years of presence stop counting. Your time stops on the earlier of these two events:

• The government serves you with a proper Notice to Appear (NTA).
• You commit certain criminal offenses that make you inadmissible or deportable.

This means you need 10 years of presence before one of these events happens. Time you spend in the United States after that point does not count toward the 10 years.

The Notice to Appear must include the required information, such as the date and time of your hearing. Courts have ruled that an incomplete notice may not stop the clock. An attorney can review your notice to see if this applies to you.

The Annual Limit on Grants

The law allows only 4,000 grants of cancellation of removal for non-permanent residents each fiscal year. This limit applies to the whole country, not just Texas.

Because of this limit, a judge may approve your case but not issue the final grant right away. Instead, the judge may reserve the decision until a number becomes available. During this wait, you can usually stay in the United States and may be able to keep your work permit.

How to Apply with Form EOIR-42B

If you are a lawful permanent resident, you will apply for cancellation of removal using Form EOIR-42A.

If you are a non-permanent resident or a VAWA applicant, you will use Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. The basic steps to apply with Form EOIR-42B are:

1. Pay the filing fee and the biometrics fee as instructed.
2. Send a copy of the fee receipt and the application to the Department of Homeland Security (DHS).
3. Complete your biometrics appointment.
4. File the application and supporting evidence with the immigration court by the deadline the judge sets.
5. Attend your individual hearing and testify in front of the judge.

Filing deadlines in immigration court are strict. A missed deadline can mean you lose the chance to apply.

Evidence That Supports a Cancellation Case

Strong evidence is the key to winning. You need documents that prove each requirement. Helpful evidence includes:

• For 10 years of presence: leases, utility bills, pay stubs, tax returns, school records, medical records, and bank statements with your name and dates.
• For good moral character: letters from employers, pastors, neighbors, and friends, plus proof that you paid taxes.
• For criminal history: certified court records showing the final result of any arrest or charge.
• For hardship: birth and marriage certificates, medical records, letters from doctors or therapists, school records, and reports on conditions in your home country.

Documents in Spanish or any other language must include a certified English translation.

What Happens If the Judge Denies Cancellation

If the judge denies your case, you still have options. You can appeal to the Board of Immigration Appeals (BIA). The appeal must be filed within 30 days of the judge's decision.

If the BIA also denies your case, you may be able to ask a federal court of appeals to review it. For cases in Texas, this is the Fifth Circuit Court of Appeals.

In some cases, the judge may also grant voluntary departure. This allows you to leave the country on your own instead of receiving a removal order, which can make it easier to return lawfully in the future.