Cancellation of Removal in South Dakota in SD… | CGMIMM
Immigration · SD
Cancellation of Removal in South Dakota
South Dakota immigrants in removal proceedings may qualify for cancellation of removal — relief that allows long-term residents (LPRs and certain non-LPRs) to avoid deportation and obtain green cards.
Published May 8, 2026
## Cancellation of removal in South Dakota
**Cancellation of removal** is one of the most important forms of relief in immigration court. It allows certain immigrants to:
- Avoid deportation
- Obtain (or retain) lawful permanent residence (green card)
Two distinct forms exist with very different requirements.
## Two types of cancellation
**1. Cancellation for Lawful Permanent Residents (LPR cancellation)** — INA § 240A(a)
**2. Cancellation for Non-Permanent Residents** — INA § 240A(b)(1)
Plus a special **VAWA Cancellation** for abuse victims — INA § 240A(b)(2).
## LPR cancellation — INA § 240A(a)
**Eligibility (all required):**
1. **Lawful permanent resident for at least 5 years** (continuously)
2. **7 years continuous residence** in U.S. after lawful admission in any status
3. **No aggravated felony** conviction
**Critical "stop-time rule":**
- Both the 5-year LPR period and 7-year residence period STOP accruing upon:
- Service of NTA (Notice to Appear), OR
- Commission of certain offenses
- This is why TIMING matters
**Discretionary factors considered:**
- Family ties in U.S.
- Length of residence
- Employment history
- Property + business ties
- Service in armed forces
- Service to community
- Rehabilitation evidence
- Hardship to self / family
**Negative factors:**
- Criminal record (especially recent)
- Immigration violations
- Fraud / misrepresentation
- Lack of rehabilitation
## Non-LPR cancellation — INA § 240A(b)(1)
**Eligibility (all required):**
1. **10 years of continuous physical presence**
2. **Good moral character** during the 10 years
3. **Not convicted of certain offenses** (CIMTs, controlled substance, certain firearms, etc.)
4. **Exceptional and extremely unusual hardship** to qualifying U.S. citizen / LPR relative (spouse, parent, child)
**"Exceptional and extremely unusual hardship"** — VERY HIGH STANDARD:
- Higher than "extreme hardship"
- Cumulative effect of multiple factors
- Children with serious medical needs
- Special-needs children dependent on U.S. services
- No realistic options in home country
- Severe educational disruption
**Examples that often qualify:**
- Child with significant medical condition requiring U.S. care
- Severely disabled qualifying relative
- Country conditions that would shock conscience
- Multiple cumulative factors creating unusual situation
**Examples that usually DON'T qualify alone:**
- Lower wages in home country
- Family separation (this is normal)
- Children adjusting to new culture / language
- Loss of property
- Less educational quality
**4,000 annual cap on non-LPR cancellation.** Backlog of approved cases waiting for visa numbers.
## VAWA cancellation — INA § 240A(b)(2)
**For battered spouses / children of U.S. citizens or LPRs:**
1. **3 years continuous physical presence**
2. **Good moral character**
3. **Not deportable for criminal grounds**
4. **Battered or subjected to extreme cruelty** by USC / LPR spouse / parent
5. **Hardship if removed** (lower standard than non-LPR)
Provides path to green card outside abusive relationship without abuser's cooperation.
## Stop-time rule details
**Crucial timing question:** When does residence "clock" stop?
**Stops upon:**
1. **Service of NTA** (Notice to Appear)
2. **Commission of certain offenses** (10-year clock for non-LPR; 7-year clock for LPR)
**Pereira v. Sessions (2018)** + **Niz-Chavez v. Garland (2021)** — Supreme Court rulings:
- NTA without time / place doesn't trigger stop-time rule
- Two NTAs (one without info, one with) doesn't satisfy single-document requirement
- May allow more clients to qualify
- Active litigation continues
## Common challenges
**Continuous physical presence:**
- Must be continuous for required period
- 90+ day single trip OR 180+ day cumulative trips break continuity
- Brief, casual, innocent trips OK
- INS / ICE encounters can break it
**Good moral character (GMC):**
- Defined by INA § 101(f)
- Statutory bars (murder, aggravated felonies, etc.)
- Discretionary considerations beyond bars
- Recent improvement insufficient
**Disqualifying offenses:**
- Aggravated felonies (LPR cancel barred)
- Crimes Involving Moral Turpitude (CIMTs)
- Controlled substance offenses
- Firearms offenses
- Immigration fraud
## Process
1. **Placed in removal proceedings** (NTA filed with court)
2. **Appear at Master Calendar Hearing** (initial)
3. **Plead to charges + indicate relief** sought
4. **File Form EOIR-42A** (LPR) or **EOIR-42B** (non-LPR)
5. **Submit biometrics**
6. **Prepare case** — declarations, country conditions, expert reports, documents
7. **Individual Hearing** (merits trial)
8. **Judge decision**
9. **Appeal options** (BIA → Federal Court of Appeals)
## Annual cap (non-LPR cancellation)
**4,000 grants per year** under INA § 240A(e):
- Approved cases get "reserve" decisions
- Final grant requires available visa number
- Backlog can be 1-3+ years after approval
- Continued employment authorization during wait
## Strategic considerations
**For LPRs:**
- Priority is often building 5/7-year clocks before NTA
- Discretionary case strong with positive equities
- Aggravated felonies are absolute bar
**For non-LPRs:**
- 10-year clock is strict
- Hardship standard is THE main hurdle
- Usually need significant evidence (medical, educational, country conditions)
- Children often the qualifying relative
**If denied:**
- Appeal to BIA
- Federal court review
- Other forms of relief (asylum, withholding, CAT, U-visa, etc.)
- Voluntary departure preserves future options
## Resources
- **EOIR (Executive Office for Immigration Review)** — runs immigration courts
- **AILA** — American Immigration Lawyers Association
- **ABA's Commission on Immigration**
- **National Immigration Justice Center**
- **CLINIC (Catholic Legal Immigration Network)**
- **ImmigrantConfidence.com / ImmigrationLawHelp.org** — find legal aid
## What you should do
If you're in removal proceedings in South Dakota: hire an experienced immigration attorney immediately. Cancellation of removal cases are won or lost on preparation. Long detention can hurt your case. Free / low-cost help may be available through South Dakota immigration legal-aid programs (Catholic Charities, Lutheran Services, local non-profits). NEVER accept voluntary departure or removal without consulting counsel — even if eligibility looks weak, you may have other options.
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*This guide is general information about U.S. federal immigration law as of early 2026 and is not legal advice. Cancellation of removal is technical + fact-specific. Talk to a licensed immigration attorney or qualified non-profit about your specific case.*
This guide is for general information only and does not constitute legal advice. Laws change and outcomes depend on your specific situation — talk to a licensed attorney before acting on anything you read here.