If you are in removal proceedings, the government has already decided it wants you out of the United States. Cancellation of removal is one of the few defenses that can end those proceedings with you staying – and, for a person who has never had status, with a green card. It is also widely misunderstood, because “cancellation of removal” is one name shared by two very different remedies. Which one fits your situation determines everything about how the case gets prepared and fought.
This page is part of our removal defense practice. It explains both tracks – cancellation for lawful permanent residents under INA § 240A(a), and cancellation for non-permanent residents under § 240A(b)(1) – along with the discretionary decision that controls both, the annual cap, the forms and fees, and what has changed at the Board of Immigration Appeals since 2025. A third track for victims of domestic abuse, VAWA cancellation of removal under § 240A(b)(2), has its own page.
One Name, Two Very Different Fights
Cancellation for permanent residents, INA § 240A(a), is almost always a criminal-consequences case. The client has a green card and something on their record, and the question is whether they keep the life they have built. If that is your situation, start with our page on how criminal convictions affect immigration status, then come back here for how the relief itself works.
Cancellation for non-permanent residents, § 240A(b)(1), is a hardship-and-documentation case. The client has no status, has lived in the United States for at least ten years, and the question is whether removal would inflict a rare kind of hardship on a spouse, parent, or child who is a U.S. citizen or permanent resident.
Different statutes, different clients, different evidence. What the two tracks share is just as important. Both are available only in removal proceedings before an immigration judge – you cannot file for cancellation with USCIS. Both require the judge’s favorable discretion on top of the eligibility checklist. And each is available once in a lifetime: a prior grant of cancellation, suspension of deportation, or old § 212(c) relief closes the door permanently, INA § 240A(c)(6). For Montana respondents, both fights happen, by and large, before the Portland Immigration Court, which hears the Montana docket – though some recent Montana cases have been venued in Salt Lake City instead, so always confirm the assigned court on your hearing notice or through the EOIR automated system.
Cancellation is not a waiver of a ground of inadmissibility; if your problem is a specific ground rather than an order, our immigration waivers page explains which waiver matches it.
Cancellation for Green Card Holders: INA § 240A(a)
A lawful permanent resident is eligible to apply if three things are true:
- you have been a lawful permanent resident for at least 5 years;
- you have resided in the United States continuously for at least 7 years “after having been admitted in any status”; and
- you have never been convicted of an aggravated felony.
The second requirement is more generous than people assume, and the precision matters. The seven years run from your first lawful admission in any status – a student visa, an H-2A visa, admission as a refugee – not from the day you became a permanent resident. A worker admitted in 2015 who did not get a green card until 2022 already has the seven years of residence; what she needs is the five years of permanent residence. The two clocks run at the same time, not back to back.
Two doctrines cut the other way. First, permanent residence obtained by fraud does not count: in Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), the Board held that a person whose green card was procured by fraud was never “lawfully admitted for permanent residence” and cannot use § 240A(a) at all. Second – and this is the one that surprises people – the stop-time rule.
The Stop-Time Rule: How an Early Offense Strands You
Under INA § 240A(d)(1), the continuous-residence clock stops permanently at the earlier of two events: when you are served with a Notice to Appear, or when you commit an offense listed in INA § 212(a)(2) – most commonly a crime involving moral turpitude – that makes you inadmissible or removable. In Barton v. Barr, 590 U.S. 222 (2020), the Supreme Court held that an offense stops the clock even when it is not the reason the government is trying to remove you. The one respondent-favorable rule in this area comes from Niz-Chavez v. Garland, 593 U.S. 155 (2021): only a single, complete Notice to Appear – one document that includes the time and place of your hearing – triggers the notice side of the rule.
Here is the trap I flag for every permanent-resident client with a record. A theft offense committed in year four or five after admission stops the residence clock at four or five years – forever. There is no waiting it out; the years that pass afterward do not count. I regularly see people who feel thoroughly settled after fifteen or twenty years here and assume time is on their side, when the statute froze their clock at a shoplifting incident from their early twenties. That is why the first question in a § 240A(a) case is not “how bad is the offense” but “when was it committed.” The date can matter more than the crime.
Discretion Is the Third Element – and the Ground Has Shifted
Meeting the eligibility checklist only earns you the right to ask. The immigration judge then weighs everything: how long you have lived here, your family ties, your work history, whether your taxes are filed and paid, service to the community, hardship to your family if you are removed – against the seriousness and recency of your criminal record, and any other conduct that reflects poorly, whether or not it produced a conviction.
I have practiced immigration law since 1996 and founded Immigration Law of Montana, P.C. in 2001. For most of that time there was an unwritten rule in permanent-resident cancellation cases: if you met the statutory requirements and put on a reasonable showing – genuine rehabilitation, family in the courtroom, a life visibly worth preserving – the judge granted. Relief was the norm, and the hearing was about earning it.
That era is over, and the Board of Immigration Appeals has said so in print. Since mid-2025 the Board has published a steady line of precedents reversing immigration judges who granted § 240A(a) cancellation. Matter of Bain reversed a grant where the criminal history was recent and repeated and the rehabilitation showing thin. Matter of Kim held that remorse that begins in prison, after decades of fraud, deserves little weight. Matter of Germain counted criminal charges that never produced a conviction, paired with a reluctance to accept responsibility, as reasons to deny. Matter of Richards made lack of candor about your own record an independent adverse factor – one that can outweigh long residence, family ties, employment, and hardship combined. And in Matter of Mills, designated as precedent by the Acting Attorney General in May 2026, the Board took away a grant from a 60-year-old man with more than 30 years of permanent residence, close family, steady employment, and consistently filed tax returns, because his “extensive criminal history outweighed his equities.” 29 I&N Dec. 668, 668 (BIA 2026).
Read together, these decisions send one message: the Board wants immigration judges denying close cases, and it is willing to do the denying itself when they do not. Candor and demonstrated rehabilitation are now the whole ballgame. A record you disclose, explain, and answer for with evidence of change can still be overcome. A record the judge learns about from the government’s filing instead of from you is close to fatal after Richards. And conduct that never led to a conviction – dismissed charges, police reports, protective orders – is squarely on the scale under Mills and Germain.
The permanent residents I have won cancellation for over the years won it the same way every time: rehabilitation that could be documented rather than merely described, a family that rallied and showed up, and collateral problems – unfiled taxes above all – cleaned up before the hearing rather than explained away at it. Immigration court has a way of functioning as the wake-up call that finally makes those changes happen, and judges know the deterrent value of a hard-won grant. Under the current climate those same cases would be harder, not impossible. The difference is that the margin for an incomplete showing is gone.
One more thing I have learned watching these hearings from the counsel table: judges do not accept the passage of time as rehabilitation. Years of quiet living matter, but what the judge is looking for – and these hearings are, at bottom, an interview of the person – is whether you have honestly come to terms with what you did. Clients often arrive needing to believe an old offense was an innocent mistake, a paperwork problem, a misunderstanding. A judge hears that as equivocation, and equivocation loses winnable cases. The hardest work in a cancellation case is often not legal at all: it is helping a client stop softening the story and say plainly what he did and why it will not happen again. That reckoning can be the most painful moment of the case – and it is regularly the moment that wins it. The Board’s recent precedents put that judicial instinct in print, but in my experience judges were applying it long before anyone wrote it down. The full story of that shift – all nine precedents – is in our post on how the BIA ended the era of easy LPR cancellation.
Cancellation for Non-Permanent Residents: INA § 240A(b)(1)
A person who has never had permanent residence – including someone who entered without inspection and has accumulated years of unlawful presence – is eligible to apply if four things are true:
- you have been continuously physically present in the United States for at least 10 years before the stop-time rule cuts the period off (service of a complete Notice to Appear stops this clock too);
- you have been a person of good moral character during those 10 years;
- you have not been convicted of an offense under the criminal inadmissibility or deportability grounds listed in the statute; and
- your removal would result in “exceptional and extremely unusual hardship” to your spouse, parent, or child who is a U.S. citizen or lawful permanent resident.
The hardship element is where these cases are won and lost. In Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), the Board set the modern standard: the hardship to your qualifying relatives must be substantially different from, and beyond, what removal ordinarily inflicts on the family of someone forced to leave. It does not need to be unconscionable – but ordinary consequences, however painful, do not qualify. The Board’s companion cases show the line in practice: Matter of Andazola-Rivas denied cancellation to a single mother of two U.S.-citizen children in unremarkable circumstances, while Matter of Recinas granted it to a single mother of six – four of them U.S. citizens – with no family remaining in Mexico and no realistic means of support there.
Notice what that comparison implies. In cancellation practice, the ordinary logic of “a strong family” inverts: a healthy, thriving, adaptable family is a weak hardship case, while a child’s serious medical condition, a disability requiring treatment unavailable abroad, or a qualifying relative wholly dependent on your presence makes a strong one. Good is bad and bad is good. Families are routinely stunned to hear that their stability is the problem with their case. And the Board now demands proof, not description: in Matter of Pelagio Mendoza, 29 I&N Dec. 542 (BIA 2026), it held that testimony about a medical or mental-health condition is generally not enough where expert reports or medical records exist and could reasonably have been produced. If the hardship is medical, the records go in the file.
The ten years must be documented, not asserted – tax records, leases, medical and school records, pay stubs, affidavits – assembled into a timeline with no gap and no disqualifying departure (a single absence over 90 days, or absences totaling more than 180 days, breaks continuity). For mixed-status families, including an undocumented spouse married to a U.S. citizen for whom other paths are closed, non-LPR cancellation is sometimes the only realistic route to status. A grant does more than stop the removal: the judge adjusts you to lawful permanent residence. You leave proceedings with a green card. For the ten-year rule, good moral character, and hardship evidence in depth, see our full guide to non-LPR cancellation of removal.
VAWA Cancellation: The Third Track
Congress wrote a separate, more forgiving rule for people abused by the very family member their immigration status depends on. VAWA cancellation under § 240A(b)(2) requires three years of physical presence rather than ten, applies a lower “extreme hardship” standard that can run to the applicant herself, and carries protections the other tracks lack. If your case involves battery or extreme cruelty by a U.S.-citizen or permanent-resident spouse or parent, read that page – the analysis is different from start to finish.
The Annual Cap, the Forms, and the Fees
Non-LPR cancellation grants are capped: the Attorney General may grant no more than 4,000 per fiscal year under INA § 240A(e), a limit shared with the old suspension-of-deportation caseload. When the fiscal year’s numbers run out, immigration judges do not deny the surplus cases – under 8 CFR § 1240.21(c)(1), they must reserve decision until a number becomes available in a later year. In practice this means a person can effectively win their case and then wait, sometimes well over a year, for the formal grant. Permanent-resident cancellation under § 240A(a) is not subject to the cap.
The application forms are filed with the immigration court, not USCIS: Form EOIR-42A for permanent residents and Form EOIR-42B for non-permanent residents. As of August 2026, the EOIR fee schedule lists the EOIR-42A filing fee at $710 and the EOIR-42B at $1,640, plus a $30 biometrics fee per person. These figures reflect EOIR’s 2026 fee changes – the EOIR-42B fee in particular is many times what it was a year earlier – and they change on the agency’s schedule, so verify the current amount on the EOIR forms page before filing. Fee waivers remain available through the court for applicants who cannot pay. One change is already dated: on August 21, 2026 the Department published an inflation adjustment to the EOIR fees for fiscal year 2027, effective October 1, 2026. 91 Fed. Reg. 54211. The amounts above are fiscal-year-2026 amounts.
If the Judge Says No: Review After Wilkinson
For years the government argued – often successfully – that cancellation denials were discretionary decisions no federal court could review. The Supreme Court changed the landscape in Wilkinson v. Garland, 601 U.S. 209 (2024): whether an established set of facts meets the “exceptional and extremely unusual hardship” standard is a mixed question of law and fact that the courts of appeals have jurisdiction to review. The Ninth Circuit – where Montana cases land – applied Wilkinson in Gonzalez-Juarez v. Bondi, 137 F.4th 996 (9th Cir. 2025), overruling its own earlier cases that had treated hardship determinations as unreviewable. Review is deferential, but a denial is no longer the end of the road. The path runs through a timely appeal to the Board and then a petition for review – our page on appeals and motions in immigration court walks through both. Be aware the road runs both directions: as Mills and the rest of the 2025-26 line show, DHS now appeals grants, so a win before the immigration judge must be built to survive the Board’s fresh look at discretion. The same is true of the criminal waiver that often travels with cancellation; see how DHS appeals of § 212(h) grants play out.
What a Strong Cancellation Case Looks Like
After nearly three decades of practice, I can tell you the winning cancellation files share a shape. The record is disclosed by the applicant, completely, before the government raises it – candor is now a factor with teeth. Rehabilitation is documented: treatment records, sobriety time, letters from employers who know the history, restitution paid. The collateral life is in order – taxes filed, child support current – because judges read those details as the truest measure of change. Presence and residence are proven minute by minute, not estimated. And where hardship is the heart of the case, the file contains the medical records, the expert evaluations, and the country evidence, not just heartfelt testimony about them.
The honest counterpart: not every eligible person should apply. Cancellation is a one-shot remedy decided by a judge with published pressure on close calls, and a weak application spends that shot. Part of my job is telling people which side of that line their facts fall on before the case is filed, not after. If you or a family member are in proceedings – especially if detained, where timelines compress and leverage shifts, or recently arrested in Montana – the time to map eligibility, stop-time dates, and the discretionary record is at the front of the case. A strategy consultation is where we do exactly that: lay out every available route, what each requires, and what each risks, so you can choose the one that works for your family.
