What changed
INA § 240A(b)(1), codified at 8 U.S.C. § 1229b(b)(1), is the cancellation statute for non-LPRs in removal proceedings. It is a four-element gate: the respondent must (A) have been physically present in the United States for a continuous period of not less than ten years immediately preceding the application, (B) have been a person of good moral character during that period, (C) not have been convicted of an offense under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3), and (D) establish that removal would result in exceptional and extremely unusual hardship to a U.S. citizen or LPR spouse, parent, or child. The procedural framework is set out in the EOIR Policy Manual.
The statute has not changed since IIRIRA’s effective date of April 1, 1997. What has changed, and continues to change, is the doctrine around each element.
On the ten-year continuous-presence clock, the stop-time rule at INA § 240A(d)(1) is governed by Niz-Chavez v. Garland, 593 U.S. 155 (2021). A defective NTA does not stop the clock; only a single charging document satisfying every element of INA § 239(a)(1) — including time and place of hearing — triggers § 240A(d)(1)(A). The commission-of-offense trigger at § 240A(d)(1)(B) remains a separate cutoff.
On hardship, the Board’s trilogy of Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), Matter of Andazola-Rivas, 23 I&N Dec. 319 (BIA 2002), and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) defines the standard. Monreal set the bar: “exceptional and extremely unusual hardship” requires hardship substantially beyond that which would ordinarily be expected to result from a relative’s removal. Andazola applied the standard restrictively, denying cancellation to a long-resident mother of two U.S.-citizen children despite financial and educational hardship. Recinas marked the floor on the other side, granting cancellation where a single mother of six U.S.-citizen children (one with serious medical issues) had no support network in Mexico.
The Supreme Court’s recent intervention in Wilkinson v. Garland, 601 U.S. 209 (2024), held that the application of the “exceptional and extremely unusual hardship” standard to settled facts is a mixed question reviewable in the courts of appeals, reopening federal-court review of hardship denials that the BIA and circuits had largely shut down after Patel v. Garland, 596 U.S. 328 (2022).
Why it matters
Three operational realities define § 240A(b) practice.
First, the ten-year clock is genuinely vulnerable to recalculation. The Niz-Chavez recalculation has surfaced new eligibility in cases that looked closed. Defense counsel should reread every old NTA in the file against the single-document rule, and reset the continuous-presence calculation accordingly.
Second, the good-moral-character (GMC) period is the ten years immediately preceding the application, which under INA § 240A(a)(1)(A) and the BIA’s reading in Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), is a rolling window that ends at the final hearing. A DUI, an old shoplifting conviction, a false statement to a federal officer — any of these can defeat GMC under INA § 101(f) even if statutory eligibility otherwise survives.
Third, hardship is the case. The qualifying-relative analysis is statutory: only a U.S. citizen or LPR spouse, parent, or child counts. Hardship to the respondent does not count, and hardship to U.S.-citizen siblings or fiancés does not count. Within that gate, the hardship case is a documentary case: medical records, school records, country-conditions evidence, expert declarations on conditions in the country of removal, evidence of educational and developmental disruption, and evidence of the qualifying relative’s specific dependence on the respondent.
After Wilkinson, federal-court review of hardship denials is meaningfully available again. That changes BIA-appeal strategy: every adverse hardship finding must be preserved with a record sufficient to support a petition for review.
Way forward
A § 240A(b)(1) workup that survives the individual hearing and a likely BIA appeal:
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Run the continuous-presence calculation: entry date through every NTA, every notice of hearing, every conviction date. Apply Niz-Chavez to any defective NTA. Cross-reference with school records, lease agreements, tax returns, and medical records to document continuous presence — testimony alone is rarely enough.
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Run the GMC analysis across the rolling ten-year window. Pull driving records, criminal history reports from every state of residence, and prior immigration filings. Disclose adverse facts to the IJ proactively — the IJ will find them in the record anyway, and credibility is the most fragile asset in the case.
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Confirm the qualifying-relative inventory: every USC or LPR spouse, parent, or child. Marriage certificates, birth certificates, naturalization certificates, green cards. If a qualifying relative is missing, evaluate whether a marriage or family-based petition can establish one before the individual hearing.
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Build the hardship case as a documentary case. Medical records for any health conditions of qualifying relatives. School records and IEPs for U.S.-citizen children. Country-conditions evidence — State Department reports, expert declarations, news coverage — on conditions in the country of removal. Evidence of the respondent’s specific role in caring for the qualifying relative. Financial records demonstrating dependence.
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File Form EOIR-42B with supporting documents per EOIR Policy Manual Part II, Chapter 3. Pay the $100 filing fee and the $85 biometrics fee, or apply for a fee waiver.
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Be aware of the 4,000-grant annual cap under INA § 240A(e)(1) and the resulting reservation-of-decision practice in some courts. The cap does not bar adjudication, but it can defer a final grant.
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Preserve every issue for appeal. After Wilkinson, hardship is reviewable in the circuits as a mixed question. Build the record at the IJ level so the BIA — and then the circuit — has something to work with.
Disclaimer
This article is general information about U.S. immigration law, not legal advice. Cancellation of removal is fact-intensive, and hardship determinations turn on the specific evidence in each case. Anyone facing removal should consult a licensed immigration attorney or a DOJ-recognized representative. Verify against the EOIR Policy Manual and the underlying BIA precedent before relying on any specific procedural rule.