Cancellation of removal[54] is a rather broad form of relief for which lawful permanent residents are eligible.  To be eligible for this form of relief, the applicant must:

 

(a)                have been a lawful permanent resident for at least five years,

(b)               have resided continuously[55] in the U.S. for seven years[56] after having been lawfully[57] “admitted in any status,” keeping in mind that the seven years stops upon commission of certain offenses or service of a notice to appear,[58]

(c)                not have been convicted of an aggravated felony,

(d)               not come within the terrorism grounds of inadmissibility or deportability,

(e)                not have persecuted others, and

(f)                 not have had certain immigration status or previously been granted certain forms of relief.

 

Once the applicant is statutorily eligible, s/he still faces the critical task of persuading the Immigration Judge to grant relief as a matter of discretion.[59] 

 

Cancellation of removal for LPRs is available to noncitizens who obtained their LPR status by fraud as long as the fraud is waived[60], before the application for cancellation of removal is made (though both may occur in a single removal proceeding).[61]

Noncitizens convicted of one or more CMTs, who are subject to removal as a result, are eligible to apply for cancellation of removal for lawful permanent residents as long as they have not also been convicted of an aggravated felony.  An aggravated felony conviction, whether or not charged in the NTA,[9] completely bars a noncitizen from eligibility for this form of relief from removal.[10]

 

Once the applicant is statutorily eligible, s/he still faces the critical task of persuading the immigration judge to grant relief as a matter of discretion.  The BIA has stated that in deciding whether to exercise discretion in cancellation cases under INA § 240B(a), 8 U.S.C. § 1229c(a), immigration judges should use the same standard employed in adjudicating applications for INA § 212(c), 8 U.S.C. § 1182(c) relief under the previous statute.[11]

 

For deportation proceedings begun prior to April 1, 1997, noncitizens may be eligible for a discretionary waiver of deportation.[12]  See § 3.43, infra, for a discussion of relief under former INA § 212(c), 8 U.S.C. § 1182(c).

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

[63] See § 3.6, infra.

[64] For purposes of the cancellation of removal residence requirement, a seven-year period that starts on January 1, 2000, ends on December 31, 2007).  Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. Sept. 9, 2004).

[65] Matter of Koloamatangi, 23 I. & N. Dec. 548 (BIA Jan. 8, 2003) (noncitizen who acquired LPR status through fraud held not “lawfully admitted for permanent residence” and was therefore ineligible for cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a)).

[54] See § 3.6, infra.

[55] Matter of CVT, 22 I. & N. Dec. 7 (BIA 1998) (granting relief to noncitizen whose single minor drug offense was not a particularly serious crime or ongoing threat, and providing that discretionary decisions in cancellation will follow the balancing test established for INA § 212(c) in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)).  Factors usually considered include rehabilitation and the strength of equities such as length of time in the U.S., close family with lawful status, etc., balanced against the seriousness of the offense.  In cases involving particularly grave offenses, the respondent had to demonstrate unusual and outstanding equities, and relief could still be denied.  See, e.g., Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990).  This discretionary issue is not subject to judicial review. See, e.g., Elysee v. Gonzales, 437 F.3d 221 (1st Cir. Feb. 21, 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. Sept. 9, 2005) (following REAL ID Act, appellate courts continue to lack jurisdiction to review the subjective, discretionary determination that noncitizen failed to satisfy the hardship requirement for cancellation of removal).

[56] E.g., under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).

[57] Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. Sept. 6, 2007) (noncitizen who obtained lawful permanent resident status by fraud has not been lawfully admitted to the United States and is therefore ineligible for LPR cancellation of removal); Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993) (where immigration judge grants the permanent resident a fraud waiver, permanent residency becomes valid as of the day that it was originally granted); Matter of Kolomatangi, 23 I. & N. Dec. 548 (BIA 2003). But see Matter of Ayala, 22 I. & N. 398 (BIA 1998) (permanent resident who asserted he obtained that status by fraud because of undisclosed criminal activity was held permanent resident for purposes of the bars to INA § 212(h) relief).

[58] Becker v. Gonzales, 473 F.3d 1000 (9th Cir. Jan. 10, 2007) (“A conviction for an aggravated felony precludes eligibility even absent a charge and finding of removability on that ground. Compare INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (a noncitizen “convicted of any felony” is not eligible) with Matter of Fortiz-Zelaya, 21 I. & N. Dec. 1199 (BIA 1998) (holding that “is deportable” for the purposes of INA § 212(c) eligibility requires a charge and finding of deportability under the relevant deportation ground) and Matter of Ching, 12 I. & N. Dec. 710 (BIA 1968) (same for suspension of deportation).”).

[59] INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).

[60] Matter of CVT, 22 I. & N. Dec. 7 (BIA 1998) (granting relief to noncitizen whose single minor drug offense was not a particularly serious crime or ongoing threat, and providing that discretionary decisions in cancellation will follow the balancing test established for 212(c) in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978)).  Factors usually considered include rehabilitation and the strength of equities such as length of time in the U.S., close family with lawful status, etc., balanced against the seriousness of the offense.  In cases involving particularly grave offenses, the respondent had to demonstrate unusual and outstanding equities, and relief could still be denied.  See, e.g., Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988); Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990).

[61] See former INA § 212(c), 8 U.S.C. § 1182(c).

BIA

RELIEF - WAIVERS - CANCELLATION OF REMOVAL FOR BATTERED SPOUSES APPLIES TO LPRS AS WELL AS NON-LPRS
Matter of AM, 25 I. & N. Dec. 66 (BIA Sept. 21, 2009) (notwithstanding the heading of INA 240A(b), 8 U.S.C. 1229b(b) (2006), which only refers to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may be eligible to apply for cancellation of removal under INA 240A(b)(2)). http://www.usdoj.gov/eoir/vll/intdec/vol25/3653.pdf

Fourth Circuit

RELIEF " CANCELLATION OF REMOVAL " AGGRAVATED FELONY BAR " BURDEN
Salem v. Holder, ___ F.3d ___, 2011 WL 1998330 (4th Cir. May 24, 2011) (Presentation of an inconclusive record of conviction [that does not necessarily establish conviction of an aggravated felony] is insufficient to meet a noncitizen's burden of demonstrating eligibility [for cancellation of removal for LPRs, under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)], because it fails to establish that it is more likely than not that he was not convicted of an aggravated felony.); following Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009) (presentation of an inconclusive record of conviction is insufficient to satisfy a noncitizen's burden of proof to show eligibility for cancellation of removal). But see Martinez v. Mukasey, 551 F.3d 113, 122 (2d Cir.2008) (a noncitizen satisfies his burden of proving that he has not been convicted of an aggravated felony"and thus remains eligible for cancellation of removal"simply by proffering an inconclusive record of conviction); Sandoval"Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir.2007) (same), authority affirmed in Rosas"Castaneda v. Holder, 630 F.3d 881, 888 (9th Cir.2011) (ruling that enactment of REAL ID Act does not affect the holding of Sandoval"Lua).

RELIEF " WAIVERS " INA 212(h) " CONVICTION REQUIRED TO BAR WAIVER FOR FIRST MARIJUANA OFFENSE
Crespo v. Holder, 631 F.3d 130 (4th Cir. Jan. 11, 2011) (Virginia adjudication in 1997 under Virginia Code 18.2"251 for possession of marijuana did not qualify as a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), because Crespo entered a plea of not guilty and did not admit sufficient facts to warrant a finding of guilt; the adjudication therefore did not disqualify respondent from elgibility for a waiver of inadmissibility under INA 212(h)).

Fifth Circuit

RELIEF " LPR CANCELLATION OF REMOVAL " ADMITTED IN ANY STATUS
Tula-Rubio v. Lynch, ___ F.3d ___ (5th Cir. May 21, 2015) (noncitizen admitted at a port of entry by immigration officials by a wave-through has been admitted in any status for purposes of cancellation of removal eligibility under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

Ninth Circuit

RELIEF - LPR CANCELLATION OF REMOVAL - RESIDENCE REQUIREMENT - IMPUTATION OF PARENT'S RESIDENCE TO CHILD
Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. Sept. 8, 2009) (a parent's status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent for purposes of eligibility for cancellation of removal. INA 240A(a)(1)), applying reasoning of Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (7 years presence of parents should be imputed to unemancipated minor children for LPR cancellation purposes).

Other

RESOURCES " CITIZENSHIP " DERIVATIVE CITIZENSHIP " CHART
chart at http://www.ilrc.org/files/documents/natz_chart-c-2016-3-29.pdf

BIBLIO - LPR CANCELLATION OF REMOVAL TOOLKIT.
Penn State Law and the Pennsylvania Immigration Resource Center recently issued a toolkit for practitioners on cancellation of removal for LPRs. The toolkit includes: 1) a summary of the statutory elements of LPR Cancellation of Removal; 2) sample exhibit lists, legal memos, and checklists; 3) litigation tips and strategies from practitioners across the country; and 4) a digest of dozens of relevant cases from the Board of Immigration Appeals and federal courts. http://law.psu.edu/academics/clinics_and_externships/center_for_immigrants_rights/toolkit