Cancellation of Removal

Cancellation of Removal Key Facts

  • Cancellation of Removal (“COR”) is a form of immigration relief available to individuals (foreign born individuals) who have been placed in removal proceedings before the United States Executive Office for Immigration Review (“EOIR”), a wing of the Department of Justice (“DOJ”).
  • An Immigration Judge (“IJ”) presiding over the Removal or Deportation case would make a decision on the Cancellation of Removal.
  • COR was designed to replace suspension of deportation, a form of relief available prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).
  • Recipients of a grant of cancellation are eligible for permanent residency in the United States.
  • Both Lawful Permanent Residents (“LPRs”) and Non-LPRs i.e. individuals who are out-of-status and/or who entered the United States border without inspection (“EWI”), qualify for a cancellation of removal. A different standard for eligibility for cancellation is applied for lawful permanent residents (“LPRs”) and non-LPRs.
  • Only 4000 applicants are eligible for Cancellation of Removal every year. This is the numerical cap on Cancellation of Removal applications. Certain applicants are exempt from this cap.

Deportation & Removal Proceedings

What is Deportation?

  • Deportation is “removal” or “expulsion” of a non-citizen from the United States.
  • Deportation is ordered by the federal government by way of a Court Order.

What is a Removal Proceeding?

  • Removal proceeding is an administrative proceeding conducted in an Immigration Court (the Executive Office for Immigration Review) by a federal Immigration Judge (“IJ”).
  • The proceedings will determine if a non-citizen is “deportable” or “removable” under United States immigration law.
  • Immigration Judges (“IJs”) are appointed by the Attorney General and are part of the Department of Justice (“DOJ”).
  • Removal proceedings are prosecuted by attorneys from the Department of Homeland Security (“DHS”).

What are the stages in a Removal Proceeding?

A Removal Proceeding is typically divided into three main stages:

  1. Notice to Appear

    Alien or “Respondent” is served with an administrative summons called a “Notice to Appear” (“NTA”). The NTA contains factual allegations from the federal government against the respondent, and puts forwards the reasons why respondent has been put into a “Removal Proceeding”.

  2. Master Hearing

    This is usually the first hearing conducted front of an Immigration Judge (“IJ”) in an immigration court. Respondent may be present with an attorney of his or her choice. This hearing primarily is for determining if there is any prima facie relief available in the removal case. However, if the respondent is not eligible for any form of relief or if the respondent refuses to request relief from removal, the immigration judge may order the respondent removed from the United States.

  3. Merit Hearing or “Individual Hearing”

    As part of the Individual Hearing, Respondent will be able to present his or her documentary evidence (which is typically required to be submitted to the court prior to the date of the merits hearing) for the court’s consideration. The respondent may also testify and/or call witnesses in support of his or her application for relief. The Department of Homeland Security (“DHS”) attorney prosecuting the case will also question the respondent and witnesses, and DHS may also call its own witnesses in some cases. At the conclusion of the indvidual hearing, the immigration judge will issue a decision.

What Type of Person Can the Immigration Authorities Deport (Remove)?

  • Undocumented immigrants, who either
    • Crossed the border and Entered Without Inspection (“EWI”); OR
    • Non-immigrants with temporary visas who stayed beyond the permitted time, and hence are now out-of-status.
  • An immigrant who has violated the terms of his or her stay. Some examples are a tourist who accepts a job, or a student who fails to pursue a full-time course of study.
  • A lawful permanent resident (“LPR”) or a green-card holder (“Permanent Resident”) can be deported if he or she commits an act which falls under the immigration law’s list of grounds of deportability.

Which Government Agencies handle Deportation and Removals?

  1. All immigration matters related to application processing– which could put an alien into removal proceedings, when the applications are unsuccessful– are handled by U.S. Citizenship and Immigration Services (“USCIS”).
  2. All immigration enforcement matters are handled by Immigration and Customs Enforcement (“ICE”).
  3. All immigration matters related to court proceedings, at which non-citizens may defend themselves against removal and establish a right to remain in the United States., are handled by the Executive Office for Immigration Review (“EOIR”).