New CLINIC Practice Advisory: Non-LPR Cancellation of Removal Under INA § 240A(b) for DACA Recipients

New CLINIC Practice Advisory: Non-LPR Cancellation of Removal Under INA § 240A(b) for DACA Recipients


Non-Lawful Permanent Resident Under INA § 240A(b) for DACA Recipients

Non-LPR cancellation is a form of discretionary relief from removal that provides a path to lawful permanent residency to certain non-citizens placed in removal proceedings on or after April 1, 1997. Non-LPR cancellation is meant to benefit undocumented immigrants who have deep roots in the United States. Due to the long U.S. residence of DACA recipients, many of them may qualify to apply for non-LPR cancellation of removal ONLY if they are placed into removal proceedings. 


Non-LPR cancellation allows non-citizens to obtain lawful permanent residence if they have established the following before an immigration judge. 

• Physical presence in the United States for a continuous period of no less than ten years;

• Good moral character during the ten-year period prior to the entry of a final administrative decision in the case;

• No conviction of an offense that would make the applicant inadmissible or deportable under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3);

• Exceptional and extremely unusual hardship 

• Merit of a favorable exercise of discretion.

An applicant for non-LPR cancellation is required to provide all the requisite facts to show eligibility. The immigration judge will consider any “credible evidence relevant to the application.” The immigration judge has discretion to determine what evidence is credible and the weight to give the evidence.


An individual is ineligible for non-LPR cancellation if any of the following apply: 

• He or she entered the United States as a crewman after June 30, 1964 

• He or she was admitted as an exchange alien (via a J visa) or acquired such status in order to receive graduate medical education or training 

• He or she was admitted or acquired exchange alien status for purposes other than graduate medical education or training, but was subject to the two-year foreign residence requirement and failed to fulfill that requirement (or have it waived) 

• He or she is inadmissible or deportable under security and related grounds 

• He or she ordered, incited, assisted, or otherwise participated in the persecution of others, or 

• He or she previously was granted cancellation of removal, suspension of deportation, or an INA § 212(c) waiver.

A visa waiver program entrant is not an enumerated category under INA § 240A(c). However, at least two U.S. courts of appeal found visa waiver program entrants ineligible for former suspension of deportation because the nonimmigrant agrees to waive the right to contest a removal order, other than asking for asylum.

For more detailed information about, non-LPR Cancellation of Removal Under INA § 240A(b) for DACA Recipients, please see the attached document below.