Waivers of Removal for Legal Residents
Authored By: St. Mary's University School of Law, Center for Legal and Social Justice (Immigration and Human Rights Program)
Overview of Relief for Legal Residents in Removal Proceedings
The law provides avenues for some legal residents who are in removal proceedings based on crimes to apply for discretionary relief to remain in the United States. A long-standing provision in §212(c) of the Immigration and Nationality Act (INA) remains available although the statute was repealed in 1996. A form of relief which replaced §212(c), cancellation of removal, also permits certain legal residents to petition the immigration court to remain in the U.S.
Requirements to apply for §212(c)
INA §212(c) provided a waiver to individuals who lawfully were admitted to the U.S. and who accumulated at least seven years of legal residence. The Supreme Court ruled in 2001 that §212(c) remains viable for legal residents who would have been eligible for the relief when they pled guilty to offenses prior to the 1996 repeal of the statute. The application is considered by an Immigration Judge (IJ) in an adversarial proceeding in which the government is represented by an attorney. The IJ determines whether the applicant is eligible and whether s/he merits a favorable grant.
Process to apply for §212(c)
- The application, form I-191, is filed with the Immigration Court.
- The application must include documentation which demonstrates that the applicant is eligible to apply and that he or she merits a favorable decision. At a minimum the applicant should include evidence of residence in the U.S., family ties to U.S. citizens and legal residents, employment and tax history, and complete criminal history. Evidence that the applicant has rehabilitated and accepts responsibility for his or her offenses will significantly assist the applicant in gaining relief.
Requirement to apply for Cancellation of Removal for Legal Residents
Cancellation of removal is available to individuals who have been lawfully were admitted to the U.S. for at least five years, who have resided in the U.S. continuously for at least seven years, and who have not been convicted of an aggravated felony (which are defined in the statute at INA §101(a)(43)). As with applications filed under §212(c), cancellation of removal relief is heard before an IJ in an adversarial hearing with the government represented by an attorney, and the IJ determines whether the applicant is eligible and merits the favorable exercise of discretion.
Process to apply for Cancellation of Removal
- The application, form EOIR-42A, is filed with the Immigration Court.
- Documentation demonstrating the applicant is eligible and merits a favorable exercise of discretion must support the application. See, above description as discussed with §212(c).