Cancellation of Removal for Non-Residents (42b) Attorney

Non-LPR cancellation of removal (42b) under INA section 240A is a form of discretionary relief from removal. To be eligible for this relief, Respondent must establish that he has been physically present in the US for a continuous period of not less than 10 years immediately preceding the application for relief; that he has had good moral character during the 10-year period prior to the entry of a decision in this case; that he has not been convicted of an offense that would make him inadmissible or deportable; and that his removal would result in exceptional and extremely unusual hardship to USC or LPR parents or children.

The BIA’s landmark case discussing hardship is Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002). In granting relief in Recinas, the BIA considered many factors including: (1) the qualifying relatives were entirely dependent upon respondent for financial and emotional support; (2) Respondent’s ability to care for the relatives if deported will be substantially hampered; (3) Strong family system in U.S. which has provided financial and emotional support without which respondent’s hardship would increase and would affect hardship of the qualifying relatives; (4) Respondent’s prospects of immigrating are unrealistic due to backlog of visa availability. The standard as described above is exceptional and extremely unusual circumstances, see Matter of Monreal, 23 I&N Dec 56 ( BIA 2001). Also in Matter of Anderson, 161 &N Dec. 596 (BIA 1978), the Honorable Board found that “relevant factors through not extreme themselves must be considered in the argument in determining whether extreme hardship exists.”

Under Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994), factors relating to the hardship standard that should be considered by the court include: the health and medical conditions of the USC relative and that Respondent’s ability to care for the relative if deported will be substantially hampered. According to Matter of Monreal, these factors should be considered in the aggregate in determining whether extreme hardship exists.


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