Cancellation of removal for non permanent residents under INA § 240A(b)(1) is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced.
To be eligible for this relief, the individual must prove the following:
1. They have been physically present in the United States continuously for 10 years immediately preceding their application for relief;
2. Have been a person of good moral character;
3. Have not been convicted of any crimes that would make him/her inadmissible or removable; and
4. Their removal would result in exceptional and extremely unusual hardship to his/her United States citizen or lawful permanent resident spouse, parent, or child. § 240A(b)(1).
Congress requires the showing of “exceptional and extremely unusual hardship” to emphasize that the alien must provide evidence of harm to his/her United States citizen or lawful permanent resident spouse, parent, or child that is substantially beyond that which would be ordinarily expected to result from an alien’s removal. The Board of Immigration said that “in deciding a cancellation of removal claim, consideration should be given to the age, health, and circumstances of the qualifying family members, including the lower standard of living or adverse country conditions in the country of return might affect those relatives.”
The Board also stated that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” They went on to provide a case example and decision that “[g]iven the unusual facts presented in [the] case, we find that the adult respondent has shown her United States citizen children will suffer exceptional and extremely unusual hardship if she is removed from the United States.” Essentially the mother in this case was eligible for relief because her deportation would have resulted in exceptional and extremely unusual hardship for her minor children.
As it is, the exceptional and extremely unusual hardship standard is difficult to meet for non permanent resident aliens seeking the relief of cancellation of removal. This burden is lessened if the non permanent residents seeking relief had been battered or suffered abuse at the hands of their U.S. citizen spouses or parents. In 1994, Congress passed the Violence Against Women Act (VAWA), which affords cancellation of removal as a defense to removal and has less rigid requirements if the applicant had been battered or abused.
To be eligible, the applicant must:
1. Have been battered or subjected to extreme cruelty in the United States by a united States citizen or lawful permanent resident spouse or parent, or is the parent in common with the abuser and the child has suffered abuse;
2. Have been physically present in the United States continuously for at least three years;
3. Has not been convicted of an aggravated felony;
4. Is not inadmissible or otherwise removable due to criminal, document or marriage fraud, or security grounds; and
5. The removal would result in extreme hardship to the applicant, the applicant’s child, or the applicant’s parent.
In order to qualify for cancellation of removal under VAWA, the abuse must rise to the level of battery or extreme cruelty. Under the Federal Code of Regulation, battery and extreme cruelty are defined as “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” 8 C.F.R, §204.2(c)(1)(vi).