42A cancellation of removal attorney (lawful permanent resident)

You built a life here — a green card, maybe a mortgage, a job, kids born in this country — and now a conviction from years ago has put all of it in front of an immigration judge. The Notice to Appear came from ICE's Enforcement and Removal Operations New York Field Office, and somewhere between the plea deal and today, someone told you that conviction could cost you the status you've held for decades. The questions you're asking are the right ones: does this count as an aggravated felony? Did the stop-time rule cut off your years of residence before you even get to argue your case? Those answers come from the actual language of your charging statute and plea record, not from guesswork.

Cancellation of removal under INA § 240A(a) lets a lawful permanent resident keep a green card despite a criminal conviction if they have held LPR status 5 years, resided continuously in the U.S. 7 years before any disqualifying event, and have no aggravated felony conviction. An immigration judge then weighs discretionary equities like family ties and rehabilitation.

The Hard Truth

Not every lawful permanent resident with a conviction gets a shot at cancellation of removal. INA § 240A(a)(3) [8 U.S.C. § 1229b(a)(3)] bars anyone convicted of an aggravated felony — no waiver, no discretion, no equities argument that overrides it. If the record of conviction shows an aggravated felony as defined in INA § 101(a)(43), the case ends at the eligibility stage, before anyone gets to talk about family ties or rehabilitation. The honest first move isn't building the equities package. It's running the categorical and modified categorical analysis (Moncrieffe v. Holder, 569 U.S. 184 (2013); Mathis v. United States, 579 U.S. 500 (2016)) against the actual charging document, plea colloquy, and judgment — because the immigration judge is going to do exactly that, and a wrong read wastes months you don't have.

What Happens If You Wait

Every month that passes without the record of conviction pulled and analyzed is a month the government's position sets further. If the Notice to Appear you were served lacked a hearing date or time, Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021), may mean the stop-time rule never actually cut off your continuous-residence clock under INA § 240A(d)(1) — but that argument has to be raised and preserved before the immigration judge, not discovered on appeal later. Missing the filing deadline the judge sets for Form EOIR-42A, or filing without the certified record of conviction and completed biometrics from the USCIS Application Support Center in Fort Lee, New Jersey, can get the application pretermitted before it ever reaches a merits hearing. A denial you don't appeal to the Board of Immigration Appeals within 30 days, per 8 C.F.R. § 1003.38(b), becomes final, and removal follows. If your conviction also triggers inadmissibility grounds, waiting can foreclose a parallel 212(h) waiver of inadmissibility argument that might otherwise stay available.

Step-by-Step Process

Step 1 — Pull the certified record of conviction (charging instrument, plea transcript, judgment and sentence) and run the categorical/modified categorical analysis against INA § 101(a)(43) to determine whether an aggravated felony bar applies. Step 2 — Calculate the stop-time date under INA § 240A(d)(1), accounting for any Pereira/Niz-Chavez defect in the Notice to Appear and any time spent outside the U.S. after the conviction. Step 3 — File Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, with the immigration judge (not USCIS) by the filing deadline set at the master calendar hearing; the application carries a $100 fee plus an $85 biometrics fee payable to USCIS, per EOIR Immigration Court Practice Manual, Chapter 3. Step 4 — Complete biometrics at the USCIS Application Support Center in Fort Lee, New Jersey, within the window EOIR specifies; missed biometrics appointments are a common reason applications get administratively closed. Step 5 — Build the equities record: family ties, tax filings, employment history, rehabilitation evidence, letters from community members, and, where relevant, documentation tied to any post-conviction motion under New York CPL § 440.10 if the underlying conviction is being challenged in state court. Step 6 — Attend the individual merits hearing before the immigration judge at 26 Federal Plaza, where both the judge and ICE trial counsel can cross-examine the respondent on the record. Per TRAC Immigration's case-backlog data (Syracuse University, updated through late 2024), the New York immigration court had more than 170,000 pending cases, and respondents commonly wait two to four years between the master calendar hearing and an individual merits hearing — plan the case timeline, including any criminal post-conviction relief, around that reality rather than around a 2024-era estimate. Step 7 — If denied, file a Notice of Appeal with the Board of Immigration Appeals within 30 days under 8 C.F.R. § 1003.38(b); a BIA denial can, in limited circumstances, lead to a petition for review in the federal circuit court covering the case.

A Real-World Example

Consider a composite respondent: an LPR for 22 years, convicted three years ago of a state drug possession offense, now served with a Notice to Appear after a visit to the ICE New York Field Office for an unrelated check-in. The first step isn't a hearing date — it's obtaining the certified disposition from the state court clerk and the plea minutes, because the statute of conviction has to be compared, element by element, against the federal controlled-substance definitions that can trigger an aggravated felony bar. In this scenario, that pull takes several weeks, since the conviction predates digital court records. While that's underway, counsel also checks whether the Notice to Appear specified a hearing date and time, since a defective NTA affects where the stop-time clock actually falls under Pereira and Niz-Chavez. Once the categorical analysis is complete, the Form EOIR-42A application gets filed with the immigration judge, biometrics get scheduled at the Fort Lee Application Support Center, and the equities file — tax returns, a letter from an employer of twelve years, a completed substance-abuse treatment program certificate — gets assembled for the individual merits hearing at 26 Federal Plaza. At the hearing, the judge questions the respondent directly about the conviction, the treatment history, and family circumstances, and ICE trial counsel cross-examines before the judge takes the matter under advisement. That is the actual sequence a respondent in this position can expect — record analysis, filing, biometrics, equities development, hearing — regardless of how any individual case is ultimately decided.

William J. Vasquez is licensed to practice law in New York and represents respondents in removal proceedings before the New York City Immigration Court at 26 Federal Plaza and on appeal to the Board of Immigration Appeals. His practice has focused for more than a decade on crimmigration analysis — determining whether a specific state or federal conviction triggers an aggravated felony bar, a crime-involving-moral-turpitude ground, or neither — and on building the equities record that an immigration judge weighs at an individual merits hearing. Unlike referral arrangements where contested merits hearings get handed to outside trial counsel, Vasquez and the attorneys working under his supervision appear personally at 26 Federal Plaza and argue BIA appeals directly. A full biography, including specific matters handled and professional background, is available on the firm's attorney profile page.

Key Terms Explained

Aggravated felony — a defined list of offenses in INA § 101(a)(43) [8 U.S.C. § 1101(a)(43)] that, if established in the record of conviction, permanently bars 240A(a) cancellation of removal with no waiver available.

Crime involving moral turpitude (CIMT) — an offense the BIA has found involves conduct considered inherently base or depraved; unlike an aggravated felony, a CIMT does not automatically bar cancellation but can trigger removability and affects the stop-time analysis.

Stop-time rule — under INA § 240A(d)(1), the date a qualifying conviction occurs (or the Notice to Appear is served, if later) stops the clock on the 7 years of continuous residence required for 240A(a) eligibility; Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021), govern whether a Notice to Appear lacking a hearing date or time can trigger this rule at all.

Categorical approach / modified categorical approach — the method courts and immigration judges use to compare the elements of a state or federal statute of conviction (not the underlying facts) against a federal definition like 'aggravated felony'; when a statute lists multiple separate offenses, the modified approach allows review of specific record-of-conviction documents. See Moncrieffe v. Holder, 569 U.S. 184 (2013); Mathis v. United States, 579 U.S. 500 (2016).

Form EOIR-42A — Application for Cancellation of Removal for Certain Permanent Residents, filed with the immigration judge handling the removal case, with biometrics completed at a USCIS Application Support Center.

Petty offense exception — under INA § 212(a)(2)(A)(ii)(II), a single CIMT does not render an LPR inadmissible if the maximum possible sentence was one year or less and the sentence actually imposed was six months or less.

EOIR / BIA — the Executive Office for Immigration Review runs the immigration courts, including the New York City Immigration Court at 26 Federal Plaza; the Board of Immigration Appeals is EOIR's appellate body for decisions by immigration judges.

Frequently Asked Questions

Q: Does my drug possession conviction automatically count as an aggravated felony for 240A(a) purposes? A: Not automatically — a first-offense simple possession conviction under many state statutes does not match the federal aggravated felony definition in INA § 101(a)(43), but statutes that include distribution, intent to sell, or certain repeat-offender enhancements can. The answer depends on the specific statute of conviction and what the record of conviction actually shows, analyzed under the categorical approach set out in Moncrieffe v. Holder, 569 U.S. 184 (2013).

Q: I have two misdemeanor convictions — can those add up to an aggravated felony? A: Generally no. Aggravated felony status is determined offense by offense against the INA § 101(a)(43) list, not by aggregating unrelated misdemeanors, though two convictions can independently trigger other grounds, such as a CIMT removability charge under INA § 237(a)(2)(A)(ii) if they didn't arise from a single scheme.

Q: I traveled abroad after my conviction — does that affect my 7 years of continuous residence? A: It can. A single absence of more than 90 days, or combined absences over 180 days, can break continuous residence under INA § 240A(d)(2), separate from the stop-time effect of the conviction itself — both the travel dates and the conviction date need to be checked against the 7-year clock.

Q: My Notice to Appear didn't list a hearing date — does that help my stop-time argument? A: It can. Under Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021), a Notice to Appear missing the time or place of the hearing may not trigger the stop-time rule, which can mean more of your residence counts toward the 7-year requirement — but this has to be raised affirmatively before the immigration judge.

Q: Can I reapply for cancellation of removal after a prior denial? A: INA § 240A(c)(6) generally bars a second grant of cancellation relief to someone previously granted it, but a prior denial on discretionary grounds (as opposed to a grant) does not automatically bar a renewed application if circumstances or the record have changed; a motion to reopen or a fresh filing may be available depending on the procedural posture.

Q: If my state conviction gets vacated, does that restore my eligibility? A: It depends on why it was vacated. Under Matter of Thomas and Thompson, 27 I&N Dec. 674 (BIA 2019), a vacatur or sentence modification based on a substantive or procedural defect in the underlying criminal case can affect aggravated felony classification and stop-time, but a vacatur granted solely for immigration purposes generally does not. A motion under New York CPL § 440.10 pursued with coordinated criminal post-conviction counsel is the usual vehicle for the former.

Clients who've gone through a 42A cancellation case with our attorneys consistently describe direct phone and email access to the attorney handling the hearing, not a paralegal relaying updates secondhand. Peer attorneys in the New York City Bar Association's Immigration & Nationality Law Committee know our team for the categorical-approach briefing filed in contested aggravated felony disputes, since that briefing often determines whether a case survives past the eligibility stage.

If you're holding a Notice to Appear and a conviction record you're not sure how to read, the next useful step is getting the record of conviction in front of someone who will run the categorical analysis before your next master calendar hearing — not after.

Call our office to schedule a consultation on your 42A cancellation of removal case. Bring the certified disposition from your criminal case and your Notice to Appear if you have them — we'll start the categorical analysis at that first meeting and tell you plainly whether an aggravated felony bar is in play before we talk about equities or scheduling your Form EOIR-42A filing.

• 212(h) Waiver of Inadmissibility for Criminal Grounds — /immigration/waivers/212h
• BIA Appeals and Petitions for Review — /immigration/appeals/bia
• Coordinating Criminal Post-Conviction Relief (NY CPL § 440.10) with Immigration Defense — /immigration/post-conviction-coordination
• Responding to a Notice to Appear (NTA) — /immigration/removal-defense/notice-to-appear
• Attorney Profile: William J. Vasquez — /attorneys/william-j-vasquez