Aggravated Felonies

An aggravated felony conviction disqualifies a noncitizen from eligibility for both forms of cancellation of removal.

Cancellation of removal is a form of discretionary relief that applies to removal proceedings initiated after April 1, 1997 (replacing former suspension of deportation and section 212(c) relief).[30]  There are several forms of “cancellation of removal” available under the immigration laws.

            A long-term lawful permanent resident in removal proceedings may be eligible to apply for “cancellation of removal” to waive most grounds of inadmissibility and deportability.  See § 2.4, infra.  A different form of “cancellation of removal” is available for non-lawful permanent residents.[31]  See § 2.5, infra.  Yet another form of cancellation of removal is available to abused spouses and children of U.S. citizens or permanent residents under provisions of the Violence Against Women Act.  See § 2.38, infra.  An additional form of cancellation of removal, employing the old, more liberal suspension of deportation rules, is available to certain Salvadorans and Guatemalans under NACARA.  See § 2.23, infra.

Cancellation of removal is only available as a defense to removal proceedings; it is not possible affirmatively to apply for this form of relief.[32]  A noncitizen is ineligible to apply for this form of relief if s/he entered as a crewman before June 30, 1964, was a J-visa immigrant under certain conditions, or was previously granted suspension of deportation, cancellation of removal, or relief under former INA § 212(c), 8 U.S.C. § 1182(c).[33]  While it is generally possible to apply for both an application for cancellation and a waiver under INA § 212(c), 8 U.S.C. § 1182 during the same immigration proceeding, it is not possible to do so if the noncitizen has been convicted of an aggravated felony.[34]

A “stop-time rule” ending any period of continuous presence or physical residence upon service of a Notice to Appear or commission of certain crimes applies to all forms of cancellation of removal.  The continuous presence requirement and stop-time rule are discussed in § 2.6, infra.

[30] Noncitizens who were placed into proceedings prior to April 1, 1997 may still be eligible for suspension of deportation, discussed at § 2.36, infra, or a waiver under former INA § 212(c), 8 U.S.C. § 1182(c), discussed at § 2.44, infra.  If the conviction itself occurred prior to April 1, 1997, the noncitizen may also be eligible for a waiver under INA § 212(c), 8 U.S.C. § 1182(c).  Ibid.

[31] INA § 240A(b), 8 U.S.C. § 1229b(b).

[32] 8 C.F.R. § 1240.20.

[33] INA § 240A(c), 8 U.S.C. § 1229b(c).

[34] See Rodriguez-Munoz v. Gonzales, 419 F.3d 245 (3d Cir. Aug. 16, 2005) (noncitizen convicted of aggravated felony cannot make simultaneous application for cancellation of removal and 212(c)).