Cancellation of Removal for Green Card Holders: Who Is Eligible?

Not even U.S. lawful permanent residents (green card holders or LPRs) are safe from removal proceedings and ultimately deportation. Convictions for certain types of crimes is a particularly common way that lawful permanent residents become inadmissible and/or deportable, which leads to being placed into removal proceedings in U.S. immigration court.

For a detailed list of reasons why a lawful permanent resident can be placed into removal proceedings, see Grounds of Deportability: When Legal U.S. Residents Can Be Removed.

If you are a lawful permanent resident and find yourself in removal proceedings, you might be eligible for a form of relief called cancellation of removal for lawful permanent residents. This relief is available only for people in Immigration Court, before an Immigration Judge. It allows you to retain your green card. In order to succeed, however, you must prove that you:

• have been a lawful permanent resident of the United States for at least five years at the time that the application is filed
• have continually resided in the United States for at least seven years after being admitted in any status and before the "stop-time rule" is triggered (discussed further below)
• have not been convicted of an aggravated felony
• have not received cancellation of removal or 212(c) relief in the past, and
• as a matter of discretion, deserve to win your case and keep your green card.

We'll discuss each of these requirements in more detail below.

Meeting the Lawful Permanent Resident for Five Years Requirement

If you have not had your green card for at least five years, unfortunately, you are not eligible for this form of relief from deportation. Another important factor that an Immigration Judge will look to regarding this requirement is that you obtained your green card lawfully. If you obtained the card by fraud, or were otherwise ineligible to receive approval for a green card, you are not truly an LPR and are therefore not eligible for cancellation of removal.

Meeting the Requirement of Seven Years' Continuous Residence Before the Clock Is Stopped

To qualify for cancellation of removal for lawful permanent residents, you must have continually resided in the United States for at least seven years after being admitted in any status and before the "stop-time rule" is triggered.

What does "admitted in any status" mean? Unfortunately, that depends on which federal circuit court jurisdiction you live within. According to a 2018 decision from the Board of Immigration Appeals (B.I.A.), it means in most circuits that the person had lawful immigration status when admitted to the U.S. (most likely gained by showing a green card, but an earlier admission could count, for example if the person entered on a student visa before eventually adjusting status; and even if they fell out of status for a bit). But the Fifth and Ninth Circuits had previously issued decisions more broadly interpreting "in any status" so that, for example, a "wave through" would be sufficient. (See Matter of Rosalina Castillo Angulo, 27 I&N Dec. 194 (B.I.A. 2018).)

The stop-time rule is triggered by your either:

• being issued a Notice to Appear (or "NTA," the document placing you in Immigrant Court proceedings)
• committing a crime referred to in the Immigration and Nationality Act (I.N.A. §212(a)(2)), or
• committing a security or related offense described in I.N.A. §237(a)(4).

The above include crimes involving moral turpitude and controlled substance offenses. The clock stops on the day the crime is committed, at which point your time in the United States stops counting for the seven-year requirement.

The Notice to Appear will list the charges against you (the reason you are inadmissible or deportable). Once the U.S. government files the Notice to Appear with the Immigration Court, the so-called "clock" counting your presence in the United States stops running. If you haven't reached seven years by that point, you are not eligible for cancellation of removal.

Meeting the Requirement of No Aggravated Felony Convictions

Any aggravated felony conviction will make you ineligible for cancellation of removal. There are a number of crimes that are deemed aggravated felonies, but some of the most common are:

• crimes of violence where you were sentenced to one year or more of imprisonment (regardless of time actually served)
• murder
• rape
• drug-trafficking crimes
• theft or burglary if you were sentenced to one year or more of imprisonment (again, regardless of time actually served), and
• crimes involving fraud where the loss to the victim exceeds $10,000.

Notice that some of these might be charged as lesser crimes, even misdemeanors. U.S. immigration law can deem something a felony even if the word never appears on someone's record. An attempt or conspiracy to commit any aggravated felony is also deemed an aggravated felony.

A full list of aggravated felonies is found in I.N.A. §101(a)(43).

Meeting the Requirement of No Previous Grant of Cancellation of Removal or 212(c) Relief

Cancellation of removal is a "one-time only" form of relief. If you have been granted cancellation of removal (either the non-lawful permanent resident or lawful permanent resident form of it) or relief under I.N.A. §212(c) in the past, you are ineligible to ask again.

Meeting the Discretionary Merit Requirement

In order to be granted cancellation of removal, you must demonstrate to the Immigration Judge that you merit relief as a matter of discretion. That means that you must show not just that you meet the basic legal requirements, but that you deserve relief when your story is viewed in a personal and subjective way. In other words, the judge isn't bound by law to approve you if you meet the basic requirements, but can use discretionary judgment. For further details on how to establish the merits of your case, see How to Apply for Cancellation of Removal (LPR).

Getting Legal Help

For personalized assistance with figuring out whether you are eligible for cancellation of removal and for help in preparing the forms, gathering convincing documents, and testifying and undergoing cross-examination in U.S. immigration court, consult an experienced immigration attorney.