Nonpermanent Resident Aliens Eligible for Cancellation of Removal
If you are a nonpermanent resident alien and proceedings to deport or remove you from the United States are initiated—due to a criminal record or for other reasons— you may be eligible to have your removal cancelled under section 240A(b) of the Immigration and Nationality Act (INA). See 8 U.S.C. §1229b(b).
To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:
• Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) years or more, and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
• You have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and
• Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident spouse, parent, or child, and you are deserving of a favorable exercise of discretion on your application;
OR
• You have been battered or subjected to extreme cruelty in the United States by your United States citizen or lawful permanent resident spouse or parent, or you are the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or lawful permanent resident parent;
• Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for three (3) years or more and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
• You are not inadmissible under sections 212(a)(2) or 212(a)(3) of the INA, you are not deportable under section 237(a)(1)(G) or sections 237(a)(2)-(4) of the INA, and you have not been convicted of an aggravated felony as defined under the INA;
• Your removal would result in extreme hardship to you or your child who is the child of a United States citizen or lawful permanent resident; or You are a child whose removal would result in extreme hardship to you or your parent; and
• You are deserving of a favorable exercise of discretion on your application.
If you have served on active duty in the Armed Forces of the United States for at least 24 months, you do not have to meet the requirements of continuous physical presence in the United States. You must, however, have been in the United States when you entered the Armed Forces. If you are no longer in the Armed Forces, you must have been separated under honorable conditions.
Lawful Permanent Resident Aliens Eligible for Cancellation of Removal
If you are a lawful permanent resident alien and proceedings to deport or remove you from the United States are initiated—due to a criminal record or for other reasons—you may be eligible to have your removal cancelled under section 240A(a) of the Immigration and Nationality Act (INA). See 8 U.S.C. §1229b(a).
To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:
• You have been an alien lawfully admitted for permanent residence for not less than 5 years;
• You have resided in the United States continuously for 7 years after having been admitted in any status; and
• You have not been convicted of any aggravated felony.
Aliens Not Eligible for Cancellation of Removal
You are not eligible for cancellation of removal under sections 240A(a) or 240A(b) of the INA if you:
• Entered the United States as a crewman after June 30, 1964;
• Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section 212(e) of the INA;
• Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(e) of the INA, but have neither fulfilled nor obtained a waiver of that requirement;
• Are an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under section 237(a)(4) of the INA;
• Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or
• Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, whose removal has previously been cancelled under section 240A of the INA.
How to Apply for Cancellation of Removal
If you believe that you have met all the requirements for cancellation of removal, you must answer all the questions on Form EOIR-42B fully and accurately. You must pay the filing and biometrics fees and comply with the Department of Homeland Security (DHS) instructions for providing biometric and biographic information to USCIS. You must also serve a copy of your application on the Assistant Chief Counsel for the DHS, U.S. Immigration and Customs Enforcement (ICE) as required in the proof of service on the application, and you must file your application with the appropriate Immigration Court.
Preparation of Application
To apply for cancellation of removal under section 240A(b) of the INA, you must fully and accurately answer all questions on the Form EOIR-42B. You must also comply with all of the instructions contained in the form. Those instructions have the force of law.
A separate application must be prepared and executed for each person applying for cancellation of removal. An application on behalf of an alien who is mentally incompetent or is a child under 14 years of age must be executed by a parent or guardian.
Your responses must be typed or printed legibly in ink. Do not leave any questions unanswered or blank. If any questions do not apply to you, write "none" or "not applicable" in the appropriate space. To the extent possible, answer all questions directly on the form.
If there is insufficient room to respond fully to a question, continue your response on an additional sheet of paper. Indicate the number of the question being answered next to your response on the additional sheet, write your alien registration number, print your name, and sign, date, and securely attach each additional sheet to the Form EOIR-42B.
Burden of Proof
The burden of proof is on you to prove that you meet all of the statutory requirements for cancellation of removal for certain nonpermanent resident aliens under section 240A(b) of the INA and that you are entitled to such relief as a matter of discretion. To meet this burden, your responses to the questions on the application should be as detailed and complete as possible. You should also attach to your application any documents that demonstrate your eligibility for cancellation of removal—see Supporting Documents below.
Supporting Documents
You should submit documentary evidence to show that you have maintained continuous physical presence in the United States for the required period. Documents that may show evidence of your physical presence in the United States include bankbooks, leases, deeds, licenses, receipts, letters, birth records, church records, school records, employment records, and evidence of tax payments.
You should submit documents that help to show that you are, and have been, a person of good moral character during the entire period of continuous physical presence in the United States required for eligibility for cancellation of removal. You should submit police records from each jurisdiction in which you resided during such period.
To show good moral character, it is recommended that you submit the affidavits of witnesses attesting to your good moral character—preferably citizens of the United States—and if you are employed, your employer. The affidavit from your employer should include information regarding the nature and duration of your employment and your earnings.
You should submit official certification to establish your relationship to those you claim would suffer hardship by your removal, and if such persons are citizens of the United States or lawful permanent residents, evidence of their citizenship or lawful permanent resident status. Documentary evidence of such relationships may include birth records, marriage certificates, proof of divorce or termination of marriage, and death certificates.
You should also submit with your application copies of any document the Department of Homeland Security (DHS) (formerly the Immigration and Naturalization Service) issued to you. And you should submit all documents that reflect payment of taxes, your criminal history (including all conviction records), and payment of child support during your physical presence in the United States.
The Immigration Judge may require you to submit additional records relating to your request for cancellation of removal. The original of all supporting documents must be available for inspection at the hearing. If you wish to have the original documents returned to you, you should also present reproductions.
Required Biometric and Biographic Information
Each applicant 14 years of age or older must also comply with the requirement to supply biometric and biographic information. You will be given instructions on how to complete this requirement. You will be notified in writing of the location of the Application Support Center (ASC) or the designated Law Enforcement Agency where you must go to provide biometric and biographic information.
You will also be given a date and time for the appointment. It is important to furnish all the required information. Failure to comply with this requirement may result in a delay in your application or in your application being deemed abandoned and dismissed by the Immigration Court.
Translations
Any document in a foreign language must be accompanied by an English language translation and a certificate signed by the translator stating that they are competent to translate the document and that the translation is true and accurate to the best of the translator's abilities. Such certification must be printed legibly or typed.
Photographs
Unless you are incarcerated or detained in a facility that prevents your compliance with this instruction, you must submit two glossy, unretouched, color photographs of yourself taken within 30 days of the date of this application. These photos must have a white background and must not be mounted.
The dimension of your facial image in the photograph should be about one (1) inch from the chin to the top of your hair and you should be shown in full frontal/passport-style view with your eyes open. Using a pencil or felt pen, you should lightly print your name and alien registration number on the back of each photograph.
Fees
Before you file your Form EOIR-42B with the Immigration Court, you must pay the required $100 filing fee and the biometrics fee to the Department of Homeland Security (DHS). Evidence of payment of these fees in the form of a copy of the DHS, U.S. Citizenship and Immigration Services (USCIS) ASC notice of fee receipt and biometrics appointment instructions must accompany your Form EOIR-42B.
These fees will not be refunded, regardless of the action taken on your application. Therefore, it is important that you read the advice, instructions, and application carefully before responding. If you are unable to pay the filing fee, you may ask the Immigration Judge to permit you to file your Form EOIR-42B without a fee (fee waiver).
In Texas, as in other states, nonpermanent resident aliens may be eligible for cancellation of removal if they have been physically present in the U.S. for at least 10 years, have maintained good moral character during that time, have not been convicted of certain offenses, and can demonstrate that deportation would cause exceptional and extremely unusual hardship to their U.S. citizen or permanent resident relatives. Victims of domestic violence may be eligible with only 3 years of presence, and certain military members may be exempt from the presence requirements. Lawful permanent residents can seek cancellation of removal if they have been an LPR for at least 5 years, have resided continuously in the U.S. for 7 years, and have not been convicted of an aggravated felony. Aliens are ineligible for cancellation of removal if they fall into specific categories, such as crewmen who entered after 1964, exchange visitors with certain conditions, security risks, persecutors, or those who have previously been granted relief under certain sections of the Immigration and Nationality Act (INA). To apply for cancellation of removal, individuals must complete Form EOIR-42B, pay the required fees, provide biometric data, serve a copy to the Department of Homeland Security's Immigration and Customs Enforcement (DHS ICE), and file with the Immigration Court. Applicants bear the burden of proof and must provide detailed responses and supporting documents to establish their eligibility. This includes evidence of their presence in the U.S., good moral character, family ties to U.S. citizens or LPRs, and any other relevant information. Applicants over 14 years old must provide biometric data, and all foreign documents must be translated into English. Two recent color photographs are also required, unless the applicant is detained. There is a $100 filing fee and a separate biometrics fee, both payable to DHS, but fee waivers can be requested from the Immigration Judge.
