Cancellation Of Removal 42b

The attorneys at Serrano Law Firm PLLC have years of experience representing clients in tough of removal cases. At its core, when a person has a case in removal proceedings, Immigration and Customs Enforcement is attempting to remove the person from the United States.   Our attorneys understand the significance and impact a removal case will have on an individual and family. Retaining the right attorney early in the process is key. It is of vital importance to have an attorney that understands the law, knows the process, has the experience but equally as important, will zealously fight for you in immigration court. 

An individual maybe placed in removal proceedings because of prior criminal history or simply being in the U.S. without a legal status. Various forms of relief should be reviewed with an experienced attorney to determine the appropriate plan of action.  Every case is unique and has particular circumstances therefore a cookie-cutter approach will not suffice. Ineffective assistance of counsel or self-help should not be an option. Rather, an experienced immigration attorney should be retained expeditiously to develop a plan of action that will allow the individual to remain in the United States.

There are various forms of relief to individuals in the removal process. Listed below are some of the more common forms of relief. Obtain a detailed analysis of your case, call for a consultation at 832-356-8331.

Cancellation of Removal for a Permanent Resident

42a Cancellation Of Removal

There are two forms of this type of relief, Cancellation of Removal (COR) for Certain Permanent Residents (42A) and the second is Cancellation of Removal for Non-Permanent Residents (42B). Both of these are defensive forms are relief, meaning that individuals must be placed in removal proceedings in order to qualify to have their removal cancelled. Hence, an application for COR is filed to stop or cancel a process that has already been started in an Immigration Court. 

Once an individual is place in removal proceedings, an immigration judge has authority to issue a decision when deciding to grant or deny an application for cancellation of removal. To qualify for this form of relief, the person: 

  • Must have been a Legal Permanent Resident for a minimum of 5 years
  • Must have continuously resided in the U.S. for a minimum of 7 years after being admitted to the U.S. in any status.  Entering the U.S. illegally is not considered a status; however, the individual could obtain a legal status thereafter at which point the 7 years would begin 
  • Must not have been convicted of a crime classified as an aggravate felony 
  • Must not be inadmissible from the U.S. for security reasons. 

A person that qualifies for COR-42A must submit an application to the Immigration Court with a copy to ICE. The respondent will have to attend initial court hearings and finally a merits or individual hearing. Considering the significant backlog of cases in Immigration Courts, the merits hearing may not occur for a few years. The process can be long and stressful. During this time period the respondent retains the status of legal permanent resident.  

At the individual hearing the Immigration Judge will take into consideration both negative and positive factor in determining whether to grant or deny the application. 

Negative factors include:

  • A bad criminal record
  • Proof of bad moral character
  • Previous problems with immigration

Positive factors include: 

  • Family Ties in the United States
  • Length of time that person has lived in the United Stated
  • Hardship to the person being deported
  • Hardship to the immediate family of the person being deported
  • Service in the armed forces of the United States
  • A history of employment and proof of paid taxes
  • Ownership of businesses in the United States and other business ties
  • Service given to the community
  • Good moral character
  • Proof of rehabilitation if the person has a criminal record, and good moral character is in question

If granted, COR allows a permanent resident to keep their green card. This form of relief is complex and should not be overlooked as it can have dire consequences if not handled properly.   It is vital to consult with an immigration lawyer form the outset of removal proceedings. 

Cancellation of Removal for Non-Permanent Residents

42a Immigration

Cancellation of Removal for Certain Non-Permanent Residents permits an Immigration Judge to cancel the removal of individuals that are not permanent residents if the respondent can demonstrate the following: 

  1. Has been physically present in the U.S.  for a CONTINUOUS period of 10 years prior to the initiation of removal proceedings.  Continuous means the respondent has not been out of the U.S.  for more than 90 days at a time, or 180 days total during that 10-year period.  There is an exception for Respondents who served at least 2 years in the military, as long as that person was in the U.S. when he enlisted or was inducted, and is currently still serving, or received an honorable discharge.
  2. Good moral character for 10 years
  3. Is not inadmissible for certain criminal and security reasons
  4. Proves removal would result in EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP to a qualifying relative. A qualifying relative is a U.S. citizen or resident spouse/parent/child as defined by the Immigration and Nationality Act.

Similar to COR-42A, COR-42B is complex.  There are usually two areas that cause common problems for respondents. The first being good moral character.  In many cases, people come into ICE custody after being arrested by local authorities for a crime.  Thus, triggering the question of good moral character. Certainly, some crimes will have more of an impact on a 42-B case than others, and some criminal cases will automatically disqualify the person from applying for COR.

The second problem area is proving exceptional and extremely unusual hardship.  The hardship has to be to a qualifying relative.  Common hardships such as financial support and emotional hardship are not enough.  Hardship has to rise to the level of exceptional and extremely unusual hardship. Determining the extent of hardship is crucial and should be evaluated on a case by case basis. 


An individual who fears returning to their native country based on a fear of being persecuted may apply to obtain a lawful status. To qualify a person must demonstrate this fear is based on one or more of different reasons including race, gender, religion, nationality, sexual orientation, political opinion, membership in a social group.  Asylum can be filed either affirmatively or defensively. A person that is not in removal proceedings can file the asylum application with USCIS within one year of entering the U.S. There are exceptions to this one-year time line. If a person is in removal proceedings, the person would file the application as a defensive form of relief. A defensive application for asylum is not filed with USCIS, rather it is filed with the Immigration Court. An immigration judge has the authority to grant or deny the application on its merits.   

Withholding of Removal (Convention Against Torture)

Withholding of removal is a form of relief available to certain individuals that may not qualify for asylum. Withholding is available to individuals that did not apply within one year of entering the U.S. and do not meet an exception, or for individuals that have certain disqualifying criminal history. In addition, although a particular criminal conviction does not disqualify the individual from applying for asylum, the Immigration Judge may make such a determination. In these cases, withholding may be the only relief available. Key differences between asylum and withholding are: Withholding is more difficult to be granted. The standard of proof for a withholding case is higher. In a withholding case, an individual must show more than likely that there is a good chance the person will be persecuted on account of race, religion, political opinion, or membership in some particular social group. An immigration judge must approve the application if an Immigration Judge determines that eligibility for withholding of removal, in other words the immigration judge cannot deny the application in the exercise of discretion. Additionally, if granted withholding of removal, a person will not be returned to the country of persecution. However, if another country is willing to accept the person, then the U.S. can arrange removal to the alternate country. Also, if conditions change in the country of persecution, then the U.S. government can initiate proceedings once again in an attempt to remove the person to their native country.  Most importantly, being granted withholding of removal does not mean permanent resident status will be granted. Moreover, there are no derivative beneficiaries on withholding application. Each member of the family seeking to be granted withholding of removal must file a separate application. 

At the Serrano Law Firm, PLLC, our lawyers will do everything we can to help you during this tough time.  Our lawyers are always happy consult with you.

Battered Spouse Petition, VAWA

A battered spouse or child may be eligible to become a legal permanent resident if the person suffered abuse at the hands of a United States citizen or lawful permanent resident. An applicant under the Violence Against Women Act of 1994 (VAWA) may be in or out of status at the time they seek this relief, or if the person is in removal proceedings.

To qualify as a battered spouse, the person must show: 

The person is the spouse of a United States citizen or legal permanent resident or that the person is filing within 2 years of divorce (must show that the reason for the divorce was the battering/cruelty of the spouse)

  • The person is of good moral character
  • The person can be classified as an immediate relative
  • The person has resided with the United States citizen or legal permanent resident spouse (or ex-spouse)
  • The marriage was not a sham marriage
  • The person was battered or was the subject of cruelty caused by the United States citizen or legal permanent resident spouse (or ex-spouse)

212(C) Waiver

The 212(c) waiver is a discretionary waiver that can be granted by an Immigration Judge.  

Even though the 212(c) waiver no longer exists, it can be applied retroactively if the person’s conviction was prior to 1996.  To qualify the person must demonstrate the following:

  1. The person lived in the United Stated for at least 7 years
  2. The person was convicted of a crime after pleading guilty prior to 1996 (trials do not count)
  3. Positive factors outweigh negative factors
  4. The person was convicted of an offense for which 212(c) relief is available (no weapons cases, or prison terms of more than 5 years)

Positive factors include:

  • Long history of living in the U.S
  • Family in the U.S.
  • Family hardship
  • Prior military service 
  • Timely paying taxes 
  • Property ownership in the U.S. 
  • Community service and value to the community
  • Rehabilitation of crimes
  • Strong business ties in the U.S.

Negative factors include:

  • Criminal record
  • Immigration violations
  • Drug/alcohol issues

212(H) Waiver

A 212(h) waiver is used to overcome convictions for:

  • Crimes of Moral Turpitude (except murder and torture)
  • Commission of multiple crimes
  • Prostitution
  • One offense of possession of marijuana under 30 grams
  • Diplomats who assert immunity

This waiver cannot be used if a person has a conviction for a crime considered an aggravated felony or drug crimes other than simple possession of marijuana. 

This waiver can be based on 1 of 2 things:

  1. To meet the 15-year waiver (does not apply to prostitution) or
  2. Extreme hardship to a qualifying family member

The 15-year waiver requires that:

  • The activity at issue happened more than 15 years prior
  • The admission would not be contrary to the national welfare, security, or safety of the United States
  • Rehabilitation

The court must determine the person has had a clean criminal record for the last 15 years. To qualify for the extreme hardship waiver, the respondent must show:

  • Show exceptional and unusual hardship to a spouse, parent, or child who is a United States citizen. Hardships considered are: medical hardship, educational hardship, emotional hardship, economic hardship. The favorable and unfavorable factors weighed are the same as listed above for the 212(c) waiver.

If you are in removal proceedings and need an experienced immigration attorney in Houston, contact the attorneys at the Serrano Law Firm, PLLC for a consultation today. 

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