Waives for Non-Permanent 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 Non-Permanent Residents in Removal Proceedings
Individuals who are not legal residents and are in removal proceedings may be eligible to apply for cancellation of removal, a discretionary application for long term residents who can demonstrate good moral character and significant hardship to a U.S. citizen or legal resident spouse, parent or child. An applicant who is approved for cancellation of removal becomes a legal permanent resident.
Who is Eligible to apply for Cancellation of Removal for Non-Permanent Residents
Any non-citizen in removal proceedings who,
- Has been physically present in the United States at least ten years;
- Is a person of “good moral character” in that he or she has not committed certain crimes or immigration offenses (note- if you are working with an attorney or an accredited representative, it is extremely important that you disclose any criminal history you may to the attorney or representative);
- Has a U.S. citizen or legal resident spouse, parent or child who will suffer “exceptional and extremely unusual” hardship if the applicant is removed. This means that the relative will suffer substantiallymore than what is expected to result from the applicant’s removal;
- Has not been convicted of certain crimes or been involved with subversive or terrorist organizations.
What is the Process for Applying for Cancellation of Removal
Applications can be made only in removal proceedings before an Immigration Judge (IJ). An adversarial hearing is conducted with the government represented by an attorney, and the IJ determines whether the applicant is eligible and merits the favorable exercise of discretion. To apply, the applicant must,
- Submit to the Immigration Court a form EOIR-42B;
- File with the Court documentation to prove each of the elements required by the statute and evidence that the application should be favorably granted. At a minimum the documentation should include,
- Evidence of at least ten years physical presence, such as rent receipts, leases, utility bills, school records of children, paystubs and other records of employment;
- Evidence of family ties, such as birth and marriage records;
- Evidence of good character, such as police clearances, church and community memberships, and letters and affidavits from church and community members;
- Evidence that family members will suffer substantialhardship, including medical reports to demonstrate physical or psychological problems, letters and affidavits from family or other witnesses to the hardship, and country reports to show conditions abroad.