§ 240A (8 USC 1229b) Cancellation of removal; adjustment of status |
§ 240A (8 USC 1229b) Cancellation of removal; adjustment of status |
Cancellation of removal for certain permanent residents
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
Cancellation of removal and adjustment of status for certain nonpermanent residents
In general
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
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;
has been a person of good moral character during such period;
has not been convicted of an offense under section 212(a)(2) [8 U.S.C 1182(a)(2)] , section 237(a)(2) [8 U.S.C 1227(a)(2)] , or section 237(a)(3) of this Act [8 U.S.C 1227(a)(3)] , subject to paragraph (5); and
establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Special rule for battered spouse or child
Authority
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien demonstrates that—
I.the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or
the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen's or lawful permanent resident's bigamy;
the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);
the alien is not inadmissible under paragraph (2) or (3) of section 212(a) of this Act [8 U.S.C 1182(a)] , is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a) of this Act [8 U.S.C 1227(a)] , subject to paragraph (5), and has not been convicted of an aggravated felony; and
the removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.
Physical presence
Notwithstanding subsection (d)(2) of this section , for purposes of subparagraph (A)(ii) or for purposes of section 244 of this Act [8 U.S.C. 1254(a)(3)] (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection between the absence and the battering or extreme cruelty perpetrated against the alien. No absence or portion of an absence connected to the battering or extreme cruelty shall count toward the 90-day or 180-day limits established in subsection (d)(2) of this section . If any absence or aggregate absences exceed 180 days, the absences or portions of the absences will not be considered to break the period of continuous presence. Any such period of time excluded from the 180-day limit shall be excluded in computing the time during which the alien has been physically present for purposes of the 3-year requirement set forth in this subparagraph, subparagraph (A)(ii), and section 244(a)(3) of this Act usc="1254" (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996).
Good moral character
Notwithstanding section 101(f) of this Act [8 U.S.C 1101(f)] , an act or conviction that does not bar the Attorney General from granting relief under this paragraph by reason of subparagraph (A)(iv) shall not bar the Attorney General from finding the alien to be of good moral character under subparagraph (A)(iii) or section 244 of this Act [8 U.S.C. 1254(a)(3)] (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996), if the Attorney General finds that the act or conviction was connected to the alien's having been battered or subjected to extreme cruelty and determines that a waiver is otherwise warranted.
Credible evidence considered
In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
Recordation of date
With respect to aliens who the Attorney General adjusts to the status of an alien lawfully admitted for permanent residence under paragraph (1) or (2), the Attorney General shall record the alien's lawful admission for permanent residence as of the date of the Attorney General's cancellation of removal under paragraph (1) or (2).
Children of battered aliens and parents of battered alien children
In general
The Attorney General shall grant parole under section 212(d)(5) of this Act [8 U.S.C 1182(d)(5)] to any alien who is a—
child of an alien granted relief under section 240A(b)(2) [8 U.S.C 1228b(b)(2)] or section 244(a)(3) of this Act [8. U.S.C 1254(a)(3)] (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996); or
parent of a child alien granted relief under section 240A(b)(2) [8 U.S.C 1228b(b)(2)] or section 244(a)(3) of this Act [8. U.S.C 1254(a)(3)] (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996).
Duration of parole
The grant of parole shall extend from the time of the grant of relief under subsection (b)(2) of this section or section 244 of this Act [8 U.S.C. 1254(a)(3)] (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ) to the time the application for adjustment of status filed by aliens covered under this paragraph has been finally adjudicated. Applications for adjustment of status filed by aliens covered under this paragraph shall be treated as if the applicants were VAWA self-petitioners. Failure by the alien granted relief under subsection (b)(2) of this section or section 244(a)(3) of this Act usc="1254" (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) may result in revocation of parole.
Application of domestic violence waiver authority
The authority provided under section 237(a)(7) of this Act [8 U.S.C 1227(a)(7)] may apply under paragraphs (1)(B), (1)(C), and (2)(A)(iv) in a cancellation of removal and adjustment of status proceeding.
Relatives of trafficking victims
In general
Upon written request by a law enforcement official, the Secretary of Homeland Security may parole under section 212(d)(5) of this Act [8 U.S.C 1182(d)(5)] any alien who is a relative of an alien granted continued presence under section 7105(c)(3)(A) of title 22, if the relative—
was, on the date on which law enforcement applied for such continued presence—
is a parent or sibling of the alien who the requesting law enforcement official, in consultation with the Secretary of Homeland Security, as appropriate, determines to be in present danger of retaliation as a result of the alien's escape from the severe form of trafficking or cooperation with law enforcement, irrespective of age.
Duration of parole
In general
The Secretary may extend the parole granted under subparagraph (A) until the final adjudication of the application filed by the principal alien under section 101(a)(15)(T)(ii) of this Act [8 U.S.C 1101(a)(15)(T)(ii)] .
Other limits on duration
If an application described in clause (i) is not filed, the parole granted under subparagraph (A) may extend until the later of—
Due diligence
Failure by the principal alien to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) of subparagraph (A), or in pursuing the civil action described in clause (ii)(II) (as determined by the Secretary of Homeland Security in consultation with the Attorney General), may result in revocation of parole.
Other limitations
A relative may not be granted parole under this paragraph if—
the Secretary of Homeland Security or the Attorney General has reason to believe that the relative was knowingly complicit in the trafficking of an alien permitted to remain in the United States under section 7105(c)(3)(A) of title 22; or
the relative is an alien described in paragraph (2) or (3) of section 212(a) [8 U.S.C 1182(a)] or paragraph (2) or (4) of section 237(a) of this Act [8 U.S.C 1227(a)] .
Aliens ineligible for relief
The provisions of subsections (a) and (b)(1) of this section shall not apply to any of the following aliens:
An alien who entered the United States as a crewman subsequent to June 30, 1964.
An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of this Act [8 U.S.C 1101(a)(15)(J)] , or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e) of this Act [8 U.S.C 1182(e)] .
An alien who—
was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) of this Act [8 U.S.C 1101(a)(15)(J)] or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training,
is subject to the two-year foreign residence requirement of section 212(e) of this Act [8 U.S.C 1182(e)] , and
has not fulfilled that requirement or received a waiver thereof.
An alien who is inadmissible under section 212(a)(3) of this Act [8 U.S.C 1182(a)(3)] or deportable under section 237(a)(4) of this Act [8 U.S.C 1227(a)(4)] .
An alien who is described in section 241(b)(3)(B)(i) of this Act [8 U.S.C 1231(b)(3)(B)(i)] .
An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244 of this Act [8 U.S.C. 1254(a)] or who has been granted relief under section 212(c) of this Act [8 U.S.C 1182(c)] , as such sections were in effect before September 30, 1996.
Special rules relating to continuous residence or physical presence
Termination of continuous period
For purposes of this section , any period of continuous residence or continuous physical presence in the United States shall be deemed to end
except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section , when the alien is served a notice to appear under section 239(a) of this Act [8 U.S.C 1229(a)] , or
when the alien has committed an offense referred to in section 212(a)(2) of this Act [8 U.S.C 1182(a)(2)] that renders the alien inadmissible to the United States under section 212(a)(2) of this Act [8 U.S.C 1182(a)(2)] or removable from the United States under section 237(a)(2) [8 U.S.C 1227(a)(2)] or section 237(a)(4) of this Act [8 U.S.C 1227(a)(4)] , whichever is earliest.
Treatment of certain breaks in presence
An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
Continuity not required because of honorable service in Armed Forces and presence upon entry into service
The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) of this section shall not apply to an alien who—
Annual limitation
Aggregate limitation
Subject to paragraphs (2) and (3) , the Attorney General may not cancel the removal and adjust the status under this section , nor suspend the deportation and adjust the status under section 244 of this Act [8 U.S.C. 1254(a)] (as in effect before September 30, 1996), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment, or such suspension and adjustment, and whether such an alien had previously applied for suspension of deportation under such section 244(a) of this Act usc="1254" . The numerical limitation under this paragraph shall apply to the aggregate number of decisions in any fiscal year to cancel the removal (and adjust the status) of an alien, or suspend the deportation (and adjust the status) of an alien, under this section or such section ?(a) of this Act [8 U.S.C 1254(a)] .
Fiscal year 1997
For fiscal year 1997, paragraph (1) shall only apply to decisions to cancel the removal of an alien, or suspend the deportation of an alien, made after April 1, 1997. Notwithstanding any other provision of law, the Attorney General may cancel the removal or suspend the deportation, in addition to the normal allotment for fiscal year 1998, of a number of aliens equal to 4,000 less the number of such cancellations of removal and suspensions of deportation granted in fiscal year 1997 after April 1, 1997.
Exception for certain aliens
Paragraph (1) shall not apply to the following:
Aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by the Nicaraguan Adjustment and Central American Relief Act).
Aliens in deportation proceedings prior to April 1, 1997, who applied for suspension of deportation under section 244 of this Act [8 U.S.C. 1254(a)(3)] (as in effect before September 30, 1996).