Non-LPR Cancellation Of Removal

INA §240A(b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.-

(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/5/ ;

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

  • The "exceptional and extremely unusual hardship" standard is defined in the Matter of Monreal.
  • This is an unusual form of relief for aliens with convictions. Most criminal convictions will render an alien ineligible under either prong (B) or prong (C).
  • Further, the 9th Circuit has ruled that the even an alien who is charged as deportable rather than inadmissible would be barred for having committed an offense that makes him or her deportable.Gonzales-Gonzales.
  • The period of continuous physical presence referred to in subsection (A) above is deemed to end, "when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest." INA §240A(d).
  • The proper service of a Notice to Appear in the Immigration also stops the accrual of time toward the period of continuous physical presence. For this reason, the validity of service of the Notice to Appear should be investigated prior to any acknowledgement of proper service.