Cancellation of Removal Attorney

Cancellation of removal is one of the few forms of relief that lets an immigration judge stop a deportation case outright and, for many applicants, grant lawful permanent resident status at the same time. It is available only to people who are already in removal proceedings, it can be granted only once in a lifetime, and it turns on precise statutory dates and evidence that must be assembled well before your hearing. For people appearing before the New York immigration courts, the difference between a grant and a denial is almost always preparation.

Our firm represents lawful permanent residents and undocumented individuals in cancellation cases before the immigration courts in New York. This page explains who qualifies, how the stop-time rule works, what the hardship standard actually requires, and what the process looks like from the filing of the application through the individual hearing. If you have received a Notice to Appear, read this page, then read our overview of removal proceedings defense in New York, and call us before your first master calendar hearing.

What Cancellation of Removal Is

Cancellation of removal is governed by section 240A of the Immigration and Nationality Act, codified at 8 U.S.C. § 1229b. The statute creates two distinct forms of relief:

• LPR cancellation, INA § 240A(a): for lawful permanent residents who have been placed in removal proceedings, usually because of a criminal conviction. A grant lets the green card holder keep permanent resident status.
• Non-LPR cancellation, INA § 240A(b)(1): for people without permanent resident status who have lived in the United States for at least ten years. A grant results in a green card.

A third variant, special rule cancellation under INA § 240A(b)(2), protects certain abused spouses and children under the Violence Against Women Act. Each form has its own elements, and confusing them is a common and costly mistake. All three share one feature: the immigration judge decides the case, and even an applicant who satisfies every statutory element must still persuade the judge to grant relief as a matter of discretion.

Cancellation for Lawful Permanent Residents: INA § 240A(a)

A green card holder in removal proceedings may apply for cancellation if he or she meets three requirements:

1. Five years as an LPR: the applicant has been lawfully admitted for permanent residence for at least five years.
2. Seven years of continuous residence: the applicant has resided in the United States continuously for seven years after having been admitted in any status. Time in student, work, or visitor status counts toward the seven years so long as it preceded a lawful admission and residence continued.
3. No aggravated felony: the applicant has not been convicted of an aggravated felony as defined in INA § 101(a)(43).

A worked example

Consider a client admitted to the United States on an F-1 student visa in August 2014 who adjusted to permanent resident status in June 2019 and was convicted of a non-aggravated-felony offense in 2023, prompting DHS to issue a Notice to Appear in January 2024. The five-year LPR requirement is not met until June 2024, but that is not fatal by itself: the clock for LPR status is measured at the time of the application and hearing, and merits hearings in New York are rarely scheduled that quickly. The seven-year continuous residence requirement runs from the August 2014 admission, so it was satisfied in August 2021, unless the stop-time rule discussed below cut it off earlier. Whether it did depends on the date the offense was committed, not the date of conviction. This is why we review the criminal court file and the immigration file side by side in every LPR cancellation case.

Conditional permanent residents can also end up in proceedings when a Form I-751 petition is denied, and LPR cancellation is sometimes available to them. If you are in that situation, our page on removal of conditions in New York explains how the I-751 process interacts with immigration court.

Cancellation for Non-Permanent Residents: INA § 240A(b)(1)

Non-LPR cancellation is the primary defense for many long-term undocumented residents of New York. The statute sets four requirements:

1. Ten years of continuous physical presence: the applicant has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of the application, subject to the stop-time rule.
2. Good moral character: the applicant has been a person of good moral character during that ten-year period, measured under INA § 101(f).
3. No disqualifying convictions: the applicant has not been convicted of an offense under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3). This bar sweeps in many misdemeanors, including certain crimes involving moral turpitude and most controlled substance offenses.
4. Exceptional and extremely unusual hardship: removal would result in exceptional and extremely unusual hardship to the applicant's spouse, parent, or child who is a U.S. citizen or lawful permanent resident.

The hardship standard is the battlefield

Hardship to the applicant does not count. The suffering must fall on a qualifying relative, and it must rise well above the hardship that ordinarily accompanies a family member's deportation. The Board of Immigration Appeals set the framework in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), Matter of Andazola, 23 I&N Dec. 319 (BIA 2002), and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). The judge weighs the qualifying relatives' ages, health, education, and circumstances in the aggregate. Cases that succeed typically involve a U.S. citizen child with a serious medical condition, a documented disability with an Individualized Education Program in a New York public school, or a permanent resident parent who depends on the applicant for daily care. Cases built only on general economic loss or diminished educational opportunity usually fail under Monreal and Andazola.

The Stop-Time Rule: Why Exact Dates Decide Cases

Under INA § 240A(d)(1), the period of continuous residence or continuous physical presence stops accruing on the earlier of two events:

• service of a Notice to Appear that complies with INA § 239(a); or
• commission of an offense referred to in INA § 212(a)(2) that renders the person inadmissible or removable.

Time does not restart. If your clock stops at nine years and eleven months, non-LPR cancellation is unavailable no matter how long the case remains pending afterward.

Two Supreme Court decisions changed how the rule is applied. In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Court held that a Notice to Appear that omits the time and place of the hearing does not trigger the stop-time rule. In Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Court held that the government cannot cure the defect by later sending a hearing notice; the stop-time rule requires a single, complete document. For years, DHS routinely issued Notices to Appear listing the hearing date as "to be determined." Many clients who were once told they fell short of ten years in fact qualify.

A worked example

A client entered the United States in March 2013. DHS served a Notice to Appear in June 2021 that stated the hearing time as "TBD," and the New York immigration court mailed a separate hearing notice in September 2021. Counting to the June 2021 NTA, the client has only eight years and three months of presence. But under Niz-Chavez, that defective NTA never stopped the clock. The client's presence continued to accrue and passed the ten-year mark in March 2023, making him statutorily eligible to apply. We examine the charging document in every case for exactly this defect.

Breaks in Physical Presence: The 90/180-Day Rule

INA § 240A(d)(2) adds a second trap for non-LPR applicants. Continuous physical presence is broken if the applicant departed the United States for any single period exceeding 90 days, or for periods totaling more than 180 days in the aggregate. A three-month trip abroad in year six can destroy an otherwise strong case. Shorter trips do not break presence, but they must be disclosed on the application, and undisclosed travel discovered at the hearing damages credibility. We reconstruct travel history from passports, airline records, and border crossing data before we file anything.

Special Rule Cancellation Under VAWA: INA § 240A(b)(2)

An applicant who has been battered or subjected to extreme cruelty by a U.S. citizen or LPR spouse or parent may qualify under a more forgiving standard: three years of continuous physical presence instead of ten, good moral character, and hardship to the applicant, the applicant's child, or the applicant's parent, judged under an "extreme hardship" standard rather than the higher "exceptional and extremely unusual" test. Certain waivers of the criminal bars are also available. These cases require sensitive evidence gathering, including police reports, orders of protection issued by New York courts, medical records, and affidavits, and they are often filed under confidentiality protections.

The Annual Cap and What It Means for Your Case

Under INA § 240A(e)(1), no more than 4,000 grants of non-LPR cancellation and suspension of deportation may be issued nationwide in a fiscal year. When the cap is reached, judges who intend to grant relief must reserve their decisions, and applicants wait, sometimes for years, for a grant number to become available. LPR cancellation under § 240A(a) is not subject to the cap. We prepare clients for this possibility so a reserved decision is understood for what it usually is: a judge who has decided to grant and is waiting for authorization.

How the Process Works in New York Immigration Court

Cancellation is a defensive application. There is no way to file it with USCIS in the first instance; you must be in proceedings under INA § 240 before an immigration judge. In New York, most cases are heard at the courts in lower Manhattan and, for detained respondents, at the detention docket. The sequence generally runs as follows:

1. Master calendar hearing: the judge takes pleadings on the Notice to Appear. How you plead to the factual allegations can affect eligibility, so this stage should not be handled casually or without counsel.
2. Filing the application: LPR cancellation is filed on Form EOIR-42A; non-LPR cancellation on Form EOIR-42B. Each carries a $305 filing fee paid to DHS, plus the biometrics fee, and proof of payment must be filed with the court. Fee waivers are available on Form EOIR-26A for applicants who cannot pay.
3. Biometrics: the applicant completes fingerprinting through USCIS. A hearing can be continued or an application deemed abandoned if biometrics are not completed, so we calendar this immediately.
4. The call-up deadline: under the Immigration Court Practice Manual, filings in non-detained cases are generally due at least 30 days before the individual hearing, and many New York judges set their own earlier deadlines in written orders. Evidence filed late can be excluded. We treat the judge's call-up date as the true deadline and work backward from it.
5. The individual hearing: a trial on the merits. The applicant testifies, qualifying relatives and other witnesses testify, and the DHS trial attorney cross-examines. Hearings typically run two to four hours and are sometimes continued across multiple dates.

Discretion: The Judge's Final Weighing

Meeting the statutory elements gets you to the starting line. The judge then weighs positive and negative factors under the framework of Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998), and Matter of Marin, 16 I&N Dec. 581 (BIA 1978): length of residence, family ties in the United States, employment history and tax compliance, community service, evidence of rehabilitation, and the seriousness and recency of any criminal conduct. For New York clients we routinely present state tax transcripts, union records, letters from employers and clergy, certificates of disposition from the New York criminal courts, and proof of completed programs. A client with a conviction who has years of documented rehabilitation can win; a client with no convictions but unfiled taxes and inconsistent testimony can lose.

Limits on Relief: One Grant, and the Statutory Bars

INA § 240A(c) lists categories of people who cannot receive cancellation at all, including certain crewmen, exchange visitors subject to the two-year foreign residence requirement, persecutors, and, under § 240A(c)(6), anyone who has previously been granted cancellation of removal, suspension of deportation, or relief under former INA § 212(c). Because the relief is one-time only, the decision to pursue it, and the timing, deserve careful thought. Where cancellation is unavailable or weak, other defenses such as adjustment of status, asylum and withholding, or waivers may fit better. Our deportation and removal defense page describes the full range of options, and we offer consultations in Russian through our Russian-speaking removal defense practice.

What We Do in a Cancellation Case

• Eligibility audit: we obtain your complete immigration file through FOIA, pull certificates of disposition for any arrest, and chart your continuous residence or presence against the stop-time rule, including a Pereira and Niz-Chavez review of the charging document.
• Hardship development: we work with treating physicians, school psychologists, and, where warranted, forensic evaluators to document the qualifying relatives' medical, educational, and psychological circumstances.
• Trial preparation: we prepare a paginated, indexed evidence submission filed by the call-up date, draft a pre-hearing brief on any contested legal issue, and prepare you and your witnesses for direct and cross-examination.
• Appeals: if the judge denies relief, we evaluate an appeal to the Board of Immigration Appeals, which must be filed within 30 days of the decision, and preserve issues for further review.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].