If you are a lawful permanent resident (LPR or green card holder) and find yourself in removal proceedings because of a criminal conviction, you may be eligible for cancellation of removal for lawful permanent residents, as described in Cancellation of Removal for Green Card Holders: Who is Eligible?
Once you (and the Immigration Judge) determine that you meet the basic eligibility criteria to apply for cancellation of removal for LPRs, you will have to actually apply and present your case before the Immigration Court. The Immigration Judge will determine whether or not you will retain your green card or be issued an Order of Removal.
Warning: The coronavirus or COVID-19 pandemic has resulted in long delays in removal proceedings. As of early 2021, U.S. immigration courts are focused on conducting hearings for people in detention. Expect a backlog even after the courts fully reopen.
In order to apply for cancellation of removal for lawful permanent residents, you have to complete and file form EOIR-42A. The form asks for information about you, your family, and your time in the United States.
On the form, you will have to list past addresses and places of employment. It is important to be as accurate as possible. Additionally, in Part 7 there are numerous yes or no questions. Some of the questions are designed to determine eligibility for cancellation of removal. Others are factors that will be weighed by the judge in his or her personal exercise of discretion. If you believe that any of these questions should be answered “yes,” discuss your case with an experienced immigration lawyer before submitting the application.
As of early 2021, the filing fee for form EOIR 42A is $305, plus a biometrics fee (for fingerprinting and related data) of $85. These fees are subject to change, so check the forms page of the U.S. Department of Justice website prior to filing your application, for updated fee information. All applicants over the age of 14 must attend their biometrics appointment and be fingerprinted prior to the merits hearing in Immigration Court.
As the applicant, it is your burden of proof to demonstrate that you are eligible and deserve cancellation of removal for lawful permanent residents. You have to prove that you:
In some cases, the same documents will prove more than one of these things at the same time.
Additionally, once the government reviews your biometric information, it will know whether you were convicted of an aggravated felony or whether you have been in removal proceedings in the past. If you have a criminal record, you should obtain certified dispositions of all arrests in order to help prove that you do not have an aggravated felony conviction (and you should definitely get an attorney’s help in making this analysis).
You will need to gather and submit documentary evidence to prove that you have both been a lawful permanent resident for at least five years and that you have seven years of continuous U.S. residence.
Such evidence can include things like copies of your green card, your Form I-94 Arrival/Departure document, birth certificates of children born in the U.S., marriage certificates, federal income tax transcripts, leases/deeds, receipts, school records, medical records, employment records, notarized affidavits from people who know you well, and more. Digital data can be helpful too, for example location records created within social media sites like Facebook, or records of rides with sharing services such as Uber or Lyft.
You will also need to present plenty of evidence to demonstrate that you deserve cancellation of removal for lawful permanent residents as a matter of discretion. Once you demonstrate that you meet the basic eligibility requirements for cancellation of removal, the majority of the hearing will focus on whether or not you deserve to keep your green card. In this area, the Immigration Judge has a lot of leeway and will balance the adverse (negative) factors in your case with the humanitarian considerations that you present.
In looking to the adverse factors, the Immigration Judge will look at: the nature of the underlying grounds of removal (what landed you in court), any other immigration violations, and any other criminal record you may have.
As far as humanitarian factors go, you will want to provide plenty of proof regarding your family ties in the U.S., hardship to yourself and family members if you were to be deported, ties to the community, history of employment, business ties, duration in the U.S. (the longer the better), and proof of rehabilitation (for any crimes committed).
You should also consider asking family members and friends to testify on your behalf during your merits hearing.
Because cancellation of removal can be granted to you only once, Immigration Judges are often lenient in granting it; however, you must present a strong case in order to avoid an Order of Removal.