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Guide to EOIR-42B and Cancellation of Removal

Updated on April 11, 2024

At a Glance

  • Cancellation of Removal is a legal process available to lawful permanent residents facing deportation proceedings in the United States.
  • By applying with Form EOIR-42B, individuals can request the cancellation of their removal if they meet certain criteria, such as having been a lawful permanent resident for at least 5 years and continuously residing in the U.S. for at least 7 years.
  • Positive factors, like family ties and community service, can strengthen the case, while negative factors, such as criminal records, may work against it.
  • Eligibility depends on meeting specific requirements outlined in Option 1 or Option 2. Seeking assistance from an immigration attorney is advisable to navigate the process effectively.

Being a lawful permanent resident of the United States is fantastic. You have some sense of security, and you have very similar rights to U.S. citizens. But as a lawful permanent resident, you can still face deportation proceedings

If you are a lawful permanent resident of the United States and removal proceedings have been instituted against you, it isn’t necessarily the end of the road. You can still have the removal proceedings canceled by applying for the Cancellation of Removal with a Form EOIR-42B.

This article explores what Cancellation of Removal is and looks at whether you could possibly be eligible to file a Form EOIR-42B.

What is Cancellation of Removal? 

As a lawful permanent resident of the United States, you have very similar rights as a U.S. citizen. There is one crucial difference, though. As a green card holder, you can still be deported.

If you are a green card holder and find yourself in deportation proceedings, there may still be hope. You can still apply to an Immigration Judge for Cancellation of Removal for Permanent Residents. If your Cancellation of Removal Application is granted, the removal proceedings against you will basically be canceled. You can apply for Cancellation of Removal by using a Form EOIR-42B.

To qualify for Cancellation of Removal, you must:

  • have been a lawful permanent resident of the United States for at least 5 years
  • have lived (“resided”) continuously in the U.S. for at least 7 years after entering the U.S. in any status (before the institution of removal proceedings)
  • Not have been convicted of an aggravated felony, and
  • Not be inadmissible to the U.S. on security grounds.

When you apply to the Immigration Judge for Cancellation of Removal, you have to convince the Judge the positive factors (vouching for you to stay) outweigh the negative factors (which brought on the deportation proceedings).

Positive and Negative Factors of Cancellation of Removal

Here are some of the positive and negative factors an Immigration Judge will look at when deciding whether to approve your application for Cancellation of Removal with EOIR-42B. 

Positive Factors

Any of the following positive factors will count in your favor for Cancellation of Removal:

  • You have family ties in the U.S.
  • You have a history of long time residency in the U.S.
  • If you are deported, it will cause hardship to you or your immediate family
  • You have served in the U.S. Armed Forces
  • You have a long, positive employment history
  • You own property in the U.S., or you have significant business ties.
  • You have a record of service to your community 
  • You have undergone rehabilitation (if you have a criminal record), or 
  • Proof of a good moral character.

Negative Factors

Any of the following negative factors will weigh against your positive factors in a Form EOIR-42B application:

  • The nature and circumstances of exclusion grounds
  • You have other immigration law violations
  • You have a criminal record, especially if it is serious or any convictions are recent
  • Any other evidence of a bad character.

Who is Eligible for EOIR-42B?

When you apply with an EOIR-42B, you will have to show the Immigration Judge you are eligible for Cancellation of Removal

You may be eligible for Cancellation of Removal if you fall under Option 1 or Option 2 below. 

Option 1

You meet all of the following criteria:

  • Before removal proceedings were started, you were continuously present in the United States for 10 years or more 
  • You have been a person of good moral character
  • You haven’t been convicted of one of the specified offenses under the Immigration and Nationality Act (INA), and
  • Removal would cause exceptional hardship to your United States citizen or lawful permanent resident spouse, parent, or child.

Option 2

Any of the following apply to your situation:

  • You or your child have been battered or subjected to extreme cruelty in the United States by your United States citizen or lawful permanent resident spouse or parent.
  • Before removal proceedings were started, you were continuously present in the United States for 3 years or more and have been a person of good moral character.
  • You are not inadmissible to the United States under INA, and you haven’t been convicted of an aggravated felony as defined in INA.
  • Your child is a United States citizen or lawful permanent resident, and your removal would cause extreme hardship to your child.
  • You are a child, and your removal would result in extreme hardship to you or your parent.
  • You deserve a favorable exercise of discretion on your EOIR-42B application.

Keep in mind, if you have served on active duty in the U.S. Armed Forces for at least 24 months, you do not have to meet the continuous physical presence requirements. But you must have been in the United States when you entered the Armed Forces. If you aren’t in the Armed Forces anymore, you must have been separated under honorable conditions.

Who is Not Eligible for EOIR-42B?

You won’t be eligible for Cancellation of Removal with an EOIR-42B in the following circumstances:

  • You have been convicted of an aggravated felony
  • You entered the United States as a crewman after June 30, 1964
  • You are an exchange visitor in J status who received medical training in the U.S.
  • You have previously ordered, incited, assisted, or otherwise participated in the persecution of an individual because of their race, religion, nationality, membership in a particular social group, or political opinion
  • You have previously been granted cancellation of removal, suspension of deportation or a waiver under INA, or 
  • You committed certain criminal offenses.

You will also not be eligible for EOIR-42B if you got your green card through fraud. 

How to Apply for Cancellation of Removal

If you believe you meet the requirements to apply for Cancellation of Removal, you can complete a Form EOIR-42B. Make sure you complete the Form EOIR-42B fully and accurately. Remember, you will have to pay the Form EOIR-42B filing fee and biometric fees.

Once you’ve filled out the Form EOIR-42B, you have to serve a copy on Assistant Chief Counsel for the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), and file the application with the appropriate immigration court.

If you face deportation proceedings, it would be a good idea to approach an immigration attorney for assistance with your Form EOIR-42B. You will have to carefully assemble your evidence to prove your case before a judge. In such cases, it’s best to have an experienced expert by your side. 

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Conclusion

Although deportation proceedings can be scary, there might still be hope for your American dream. Take a look at whether you are eligible to apply for Cancellation of Removal with a Form EOIR-42B. If you are, don’t wait for a second longer. Consult with a specialized immigration attorney and save your American dream. 

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Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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