Cancellation of Removal under Section 42B of the Immigration and Nationality Act (INA) is a form of relief available to certain non-permanent residents facing deportation or removal from the United States. This legal provision allows eligible individuals to apply for a cancellation of their removal and, if granted, obtain lawful permanent residency (a green card).
Definition of Cancellation of Removal 42B:
Cancellation of Removal 42B is a discretionary form of relief granted by an immigration judge to non-permanent residents (those who do not have a green card) who are in removal proceedings. This relief is designed to prevent the deportation of individuals who have established strong ties to the United States and whose removal would cause exceptional and extremely unusual hardship to their U.S. citizens or lawful permanent resident family members.
Difference Between 42A and 42B:
It’s important to distinguish between Cancellation of Removal under Section 42A and Section 42B:
- 42A: Applies to lawful permanent residents (green card holders) who are facing removal.
- 42B: Applies to non-permanent residents who do not have a green card but meet certain eligibility requirements.
This blog post focuses on the Cancellation of Removal 42B for non-permanent residents.
Eligibility Requirements for Cancellation of Removal 42B:
Continuous Physical Presence
To be eligible for Cancellation of Removal 42B, you must have been physically present in the United States for at least 10 years before applying. This period of continuous presence must be uninterrupted, though brief and casual departures may not necessarily disqualify you.
Good Moral Character: You must demonstrate that you have been a person of good moral character during the 10 years preceding your application. This means avoiding certain criminal convictions and behaviors that could be deemed morally questionable, such as fraud, drug offenses, or other serious crimes.
No Disqualifying Criminal Convictions
Certain criminal convictions can disqualify you from being eligible for Cancellation of Removal 42B. These include aggravated felonies, certain controlled substance offenses, and crimes involving moral turpitude. Your attorney can help you determine whether your criminal record affects your eligibility.
Exceptional and Extremely Unusual Hardship
One of the most challenging requirements to meet is proving that your removal would cause "exceptional and extremely unusual hardship" to your U.S. citizen or lawful permanent resident spouse, parent, or child. The hardship must go beyond the normal consequences of deportation, such as separation from family or economic difficulties. Examples of qualifying hardship might include severe medical conditions, special educational needs, or other compelling circumstances.
The Application Process for Cancellation of Removal 42B:
Initiating the Process
The process begins when you are placed in removal proceedings. You or your attorney must file Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents, with the immigration court handling your case.
Gathering Evidence:
To support your application, you must provide evidence that demonstrates your eligibility, including:
- Proof of continuous physical presence: Documents such as utility bills, tax returns, school records, or affidavits from community members can help establish your continuous presence in the U.S.
- Character references: Letters from employers, religious leaders, or community members can help demonstrate your good moral character.
- Evidence of hardship: Medical records, psychological evaluations, and expert testimony may be necessary to prove that your removal would cause exceptional and extremely unusual hardship to your qualifying family members.
Court Hearing
After filing your application and submitting your evidence, you will attend a hearing before an immigration judge. During this hearing, you will present your case, and the judge will consider your eligibility and the merits of your application. The U.S. government, represented by an attorney from Immigration and Customs Enforcement (ICE), may also present evidence or arguments against granting you relief.
Decision
The immigration judge will make a decision based on the evidence presented. If the judge grants your application, you will be allowed to remain in the United States and will be granted lawful permanent resident status (a green card). If your application is denied, you may have the option to appeal the decision to the Board of Immigration Appeals (BIA).
Common Challenges in Cancellation of Removal 42B Cases:
Proving Continuous Physical Presence: Proving continuous physical presence can be difficult, especially if you have limited documentation or if there have been gaps in your presence due to brief departures from the U.S. Your attorney can help you gather the necessary evidence and present it effectively.
Establishing Good Moral Character: If you have a criminal record or other factors that might call your moral character into question, you may face challenges in proving your eligibility. Your attorney can help address these issues and present evidence that highlights your positive contributions to your community and your rehabilitation efforts, if applicable.
Demonstrating Exceptional Hardship: Demonstrating exceptional and extremely unusual hardship is often the most challenging aspect of a Cancellation of Removal 42B case. The standard is high, and the hardship must be significant and well-documented. Your attorney can work with experts, such as medical professionals or social workers, to provide compelling evidence of the hardship your family would face if you were removed.
The Role of an Immigration Lawyer in 42B Cases:
Legal Expertise and Guidance: An experienced immigration lawyer can provide invaluable guidance throughout the Cancellation of Removal 42B process. They can help you determine whether you meet the eligibility requirements, gather the necessary evidence, and prepare a strong application. Additionally, they can represent you in court, advocating on your behalf and helping you navigate the complexities of immigration law.
Handling Appeals: If your application for Cancellation of Removal 42B is denied, your attorney can assist you with the appeals process. This may involve filing an appeal with the BIA, submitting additional evidence, or arguing that the immigration judge made a legal or factual error in denying your application.
Maximizing Your Chances of Success: The stakes are high in Cancellation of Removal 42B cases, as the outcome can determine whether you are allowed to stay in the United States or face deportation. An immigration lawyer can help you present the strongest possible case, increasing your chances of a favorable outcome.
Potential Outcomes of a 42B Application:
Grant of Lawful Permanent Residency: If your application is successful, you will be granted lawful permanent resident status, commonly known as a green card. This status allows you to live and work in the United States indefinitely and eventually apply for U.S. citizenship.
Denial and Removal: If your application is denied, you may be ordered removed from the United States. However, you may still have options for appeal or other forms of relief, depending on the circumstances of your case. It’s important to consult with your attorney to explore all possible avenues for staying in the country.
Appeals and Further Legal Action: If denied, you can appeal the decision to the BIA, and potentially to the federal courts if necessary. The appeals process can be lengthy and complex, but with the right legal representation, you may be able to overturn the denial and secure your right to remain in the United States.
Conclusion:
Cancellation of Removal 42B is a critical form of relief for non-permanent residents facing deportation. It offers the possibility of remaining in the United States and obtaining lawful permanent residency, but it also involves a challenging and complex legal process. Understanding the eligibility requirements, gathering strong evidence, and working with an experienced immigration lawyer are key to increasing your chances of success. If you or a loved one are facing removal and believe you may qualify for Cancellation of Removal 42B, seek legal assistance as early as possible to ensure that your case is handled with the care and attention it deserves.
