This relief was previously known as â€œsuspension of deportation.â€ Section 240A(b) of the Immigration & Nationality Act empowers the Attorney General (through an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of, and adjust status (grant a green card) of a non-permanent resident found to be inadmissible or deportable from the United States if the alienâ€”
- Has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application. The 10-year period of continuous physical presence is considered to end when the alien is served with a Notice to Appear or when s/he commits certain offenses that render him/her inadmissible or removable, whichever date is earlier. Similarly, it ends if the alien departed the U.S. for any one period in excess of 90 days; or has departed the U.S. for any periods in the aggregate exceeding 180 days;
- Has been a person of good moral character during such period;
- Has not been convicted of certain deportable or excludable crimes;
- Establishes that removal would result in exceptional and extremely unusual hardship to the alienâ€™s U.S. citizen or Lawfully Permanent Resident spouse, parent, or child.
Exceptional and Extremely Unusual Hardship
In the Matter of Anderson, 16 I&N Dec. 596 (BIA 1978), the Board of Immigration Appeals identified the following hardship facts in a non-LPR seeking cancellation of removal:
- Age of the person both at the time of entry in the United States and when the cancellation of removal application is filed;
- Family ties in this country and abroad;
- Length of U.S. residence;
- Health of the qualifying relatives (U.S. citizen or Lawfully Permanent resident spouse, parent or child);
- Political and economic conditions in the home country;
- Possibility of other means of adjustment;
In the matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA May 4, 2001), the Board of Immigration Appeals offered a couple of different hypothetical fact patterns for guidance on the level of hardship required:
- A respondent who has elderly parents in the U.S. who are solely dependent upon him for support.
- A child with very serious health issues or compelling special needs in school.
Mr. Monreal-Aguinaga entered the U.S. at 14 years of age, lived in the States for 20 years, had two school age children born in the U.S. and LPR parents. The Board of Immigration Appeals denied his case.
This relief is available as a remedy to inadmissibility as well as to removability. There is an annual cap of 4,000 visas, including aliens who applied for suspension under former INA Section 244(a).
There are special rules for spouses or children who have been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen or a Lawful Permanent Resident.
This relief is not available to you if you:
- Are an alien who entered the United States as a crewmember subsequent to June 30, 1964;
- Entered as a J-1 nonimmigrant exchange visitor or acquired this status in order to receive graduate medical education or training, regardless of whether or not you are subject to the two-year foreign residence requirement of INA Â§212(e) or whether you have fulfilled the two-year requirement or
- Entered on a J visa or acquired J status and are subject to the two-year foreign residence requirement, and either have not fulfilled the foreign residence requirement or have not received a waiver of the requirement;
- Are inadmissible under INA Â§212(a)(3) (security and related grounds) or deportable under INA Â§237(a)(4) (security and related grounds);
- Have ever ordered, incited, assisted or otherwise participated in the persecution of an individual because of the individualâ€™s race, religion, nationality, membership in a particular social group or political opinion as described in INA Â§241(b)(3)(B)(i);
- Are an alien whose removal has been canceled previously under this section or whose deportation was suspended under former INA Â§244(a), or who has been granted relief under former INA Â§212(c).