May 17, 2010: Cancellation of Removal Requirements

Cancellation of Removal Requirements

To apply for cancellation of removal, the person has to have 10 years in the United States. What if the person came in February of 2000, left again months later, but came back in May of 2001. Do 10 years count from 2000 or 2001?
— Anonymous

Based on the facts stated in your question, I am assuming that you are speaking about cancellation of removal for non-permanent residents rather than cancellation of removal for permanent resident. The requirements are very different.

First of all, a person may only apply for cancellation of removal for non-permanent residents when in removal proceedings because s/he is found to be either inadmissible or deportable. It cannot be applied for affirmatively. Generally speaking, for cancellation of removal for non-permanent residents, the person must have been physically present in the United States for a continuous period of 10 years or more immediately preceding the issuance of the Notice to Appear placing them in Removal Proceedings. Any departure from the United States of more than 90 days or for any periods in the aggregate that exceeds 180 days during the 10 year period breaks the physical presence continuity.

There are some scenarios that would break the continuous physical presence period where the departure is less than 90 days. The continuous presence period ends once the Notice to Appear (NTA) has been served or upon the commission of certain criminal offenses. To prove continuous physical residence, the applicant must provide substantive evidence proving that they were actually physically present in the United States during the time period in question. Examples include tax returns, employment records, and school records, among many other types of documentation.

In addition to the physical presence requirement, the person will have to show they are a person of good moral character, have not been convicted of certain offenses, and that removal would result in exceptional and extremely unusual hardship to a United States citizen or lawful permanent resident spouse, parent, or under 21 year old child. This standard of proof is very high compared to other standards in the deportation relief area of immigration law.

If you have a friend or relative that is presently in removal proceedings, it would be wise to consult with an immigration attorney with extensive experience in removal defense in the immigration court.

Michael Shane and Evan Shane, Immigration Attorneys

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