When Non-Permanent Residents Can Apply for Cancellation of Removal

Applying for cancellation of removal is often one of the only avenues for both lawful and non-lawful permanent residents to remain in the United States after facing removal proceedings. These proceedings can be especially difficult, both emotionally and financially, on the individual and families affected. It is important for those in this situation to know when they can apply for cancellation of removal, to ensure the best course of action for the affected individual is taken. If you are a non-permanent resident applying for cancellation of removal, it is crucial to hire an experienced immigration attorney to help lead you in the best direction for your particular case and assist in minimizing any potential consequences.

Common Ways Non-LPRs Face Removal Proceedings

Right now, just like with lawful permanent residents (LPRs), the most common way to end up in removal proceedings is by committing a criminal offense. This has always been the case but is even more so now with Obama’s recent executive actions that directly affect the Immigration and Customs Enforcement (ICE). These actions direct ICE enforcement and prosecutors to focus their attentions and energy on deporting people with criminal records. If any non-LPR is detained for a criminal reason or has a conviction on their record, they can be placed in removal proceedings.

Additional ways non-LPRs can face removal proceedings include:

• If an individual has an encounter with the ICE
• If an individual has a prior order of deportation, and has an encounter with the ICE and is detained and arrested for a non-deportable criminal offense. This could still lead the ICE to place the individual in removal proceedings.
• If an individual travels abroad, assuming they are of lawful status but have violated that status, they may be placed in removal proceedings upon re-entering the U.S.
• Applying for naturalization thinking they are eligible, but a past criminal offense or something in their immigration history leads the government to believe they actually are ineligible for the status they were once granted.
• Applying for an affirmative benefit, such as a family based petition with U.S. Citizen and Immigration Services and having that application denied. That case could then be referred to the immigration court for possible removal proceedings.

Furthermore, if an individual is undocumented, they can be placed in removal proceedings at any time.

Applying for Cancellation of Removal

If eligible, an individual should certainly apply for cancellation of removal. Especially, if they have no other options available to them, such as having the case terminated or applying for other avenues of release that could bring a quicker resolution. As with LPRs, however, cancellation of removal is the only option available and there is no other choice but to wait for the process to resolve itself in immigration court.

The immigration judge is the only person to have authority to grant or deny the initial application for cancellation of removal. If an individual decides to appeal, they will appeal to the board of immigration appeals or to the district court where the individual resides.

Importance of an Immigration Attorney

An immigration attorney is an incredibly important tool to have when dealing with cancellation of removal cases. Specifically, with non-LPR cancellation, the element of discretion is something that needs to be skillfully argued. These cases need to be extremely well documented, and it is of the utmost importance to have an attorney do this.