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What Is “Continuous Presence” for Cancellation of Removal for Non-Permanent Residents?

Last updated on Sep 9th, 2017

To beat deportation, to prevent removal from the US, noncitizens who are not permanent residents (non-LPR foreign nationals) often look to cancellation of removal, a forms of removal relief. To receive cancellation of removal, a non-LPR foreign national must show she “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.”

A non-LPR foreign national who has left the US for even a day before reaching the 10-year mark might wonder whether she has achieved ten years of “continuous presence.” However, this foreign national might actually have satisfied the continuous residence requirement. On the other hand, a non-LPR foreign national who has been present in the US for ten years without leaving and who committed a crime in the US before reaching the 10-year mark might not perceive any obstacle to satisfying the “continuous presence” requirement. However, this foreign national might not actually satisfy the requirement.

The Effect of a Notice to Appear

For purposes of cancellation of removal, a non-LPR foreign national’s period of continuous physical presence in the US is considered to have ended when the government serves him (pursuant to INA § 239(a)) with a notice to appear  in removal proceedings if that notice is the basis for the very proceedings in which the non-LPR foreign national seeks cancellation of removal. According to the BIA, the service of the notice to appear will trigger the stop-time rule even if the notice does not inform the non-LPR foreign national of the date and time of the proceedings but, instead, states “To be set” in the space provided for the date and time.

The Effect of Crime

A non-LPR foreign national’s period of continuous physical presence in the US is considered to have ended when the non-LPR foreign national has committed a criminal offense referred to in INA § 212(a)(2) that makes the non-LPR foreign national removable under INA § 237(a)(2) or 237(a)(4) or that makes the non-LPR foreign national inadmissible to the US under INA § 212(a)(2).

The Effect of Certain Departures from the US

A non-LPR foreign national’s continuous physical presence in the US continues to accrue following her departure of less 91 days for a single trip, unless and until she has been outside for—aggregating time from all trips—more than 180 days.  However, under circumstance there is an exception to the just-mentioned rule about departures: the non-LPR foreign national’s continuous presence ends if upon return to a land border port of entry, the foreign national (1) was formally excluded or subject to an order of expedited removal, (2) was offered and did accept the opportunity to withdrew his or her application for admission, or (3) was subjected to some other formal, documented process by which he or she was determined to be inadmissible to the US.

In addition, according to the BIA, a foreign national’s voluntary departure from the US that occurs under threat of the commencement of removal proceedings ends her period of continuous presence (unless an exception applies), regardless of how long she remains outside of the US.

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