Cancellation of Removal (the “42B”) in New Orleans Immigration Court

By Donald J. Melancon, Attorney at Law · Last reviewed October 11, 2026

If you have lived in the United States for more than ten years without status and you are now in removal proceedings, the form of relief most people are asking about is cancellation of removal for non-permanent residents, filed on Form EOIR-42B and known in the hallway as a “42B.” If the immigration judge grants it, removal is cancelled and you become a lawful permanent resident. The statute is INA section 240A(b), codified at 8 U.S.C. § 1229b(b). This article explains the four requirements, the rule that stops your ten-year clock, how the application is filed, why a grant can sit on hold for years, and what the timeline looks like in New Orleans.

The four requirements

The statute sets out four things the applicant has to prove. All four are required; a strong showing on one does not make up for a miss on another.

• Ten years of continuous physical presence in the United States immediately before the date of the application. A single absence of more than 90 days, or absences adding up to more than 180 days, breaks the period.
• Good moral character for those ten years. The law lists conduct that bars a finding of good moral character outright, and beyond that list the judge weighs the whole record.
• No conviction for an offense under the criminal and document-fraud grounds the statute names. Convictions that seem minor in state court can fall inside those grounds, so any criminal record has to be read against the statute first.
• Exceptional and extremely unusual hardship to a spouse, parent, or child who is a U.S. citizen or lawful permanent resident. Hardship to the applicant personally does not count toward this element, only hardship to a qualifying relative.

Cancellation is also discretionary. Even when all four elements are met, the judge decides whether the case merits a grant, and the government’s attorney can argue against it.

The stop-time rule and why your NTA matters

The ten years do not run forever. Under the stop-time rule, the period of continuous presence is deemed to end when you are served with a notice to appear (NTA), or when you commit certain offenses, whichever comes first. For most people that means the clock stopped the day the NTA was served, and the question becomes whether ten full years had already accumulated by then.

Two Supreme Court decisions changed how that date is counted. In Pereira v. Sessions (2018), the Court held that a putative notice to appear that fails to designate the time or place of the hearing is not a “notice to appear” under the statute and does not trigger the stop-time rule. In Niz-Chavez v. Garland (2021), the Court held that the government cannot cure that defect by sending the missing information in a later hearing notice; the statute requires a single document. For years, many NTAs listed the hearing date and time as “to be set.” If yours did, someone who was short of ten years when the NTA was served may not be short today. How that argument plays out depends on the documents in the file and on current Fifth Circuit case law, which governs Louisiana.

What a hardship case actually needs

The hardship element is where most 42B cases are won or lost. The standard is not ordinary hardship. Every family suffers when a parent or spouse is removed, and the law treats that baseline as expected. The applicant has to show hardship that is substantially beyond what would normally result from removal. In practice the judge looks at the qualifying relatives as individuals: their ages, their health, their schooling, whether they would go with the applicant or stay behind, what life would look like for them in the country of removal, and what family and financial support would remain here.

That showing is built from documents, not adjectives. A hardship case that is ready for hearing usually includes:

• Medical, psychological, and educational records for each qualifying relative, with letters from the treating provider or school explaining what the child or spouse needs and whether it would be available abroad;
• Proof of the family’s finances: tax returns, pay records, the mortgage or lease, and who depends on whose income;
• Country-conditions evidence on the specific problems the relative would face in the country of removal, such as access to the medical care or special education the child relies on;
• Detailed, dated declarations from the applicant and the relatives, and from teachers, doctors, employers, and clergy who know the family;
• Proof of the ten years and of good moral character: tax filings, leases, utility bills, school and church records, employment records, and a clean police clearance.

Ten years of presence is usually easy to prove in a general way and hard to prove month by month. Gaps in the paper trail should be identified early so they can be filled with declarations or records that still exist.

Filing the EOIR-42B: fee, biometrics, and deadlines

The application is Form EOIR-42B, filed with the New Orleans Immigration Court (One Canal Place, 365 Canal Street, Suite 500) once the judge has set a deadline for it, which usually happens at a master calendar hearing. Under the regulations, a judge may set time limits for filing applications, and an application not filed by that date can be deemed waived, so the call-up date is a hard deadline.

The filing fee is paid in advance, electronically through the EOIR Payment Portal, and the receipt is filed with the application. As of October 1, 2026, EOIR lists the EOIR-42B fee at $1,690, plus a $30 biometrics fee paid to DHS; those amounts are adjusted periodically, so confirm them before paying. Fee waivers exist but are discretionary and not available for every fee. After filing, the applicant must follow DHS instructions to complete biometrics (fingerprints and a background check) at a USCIS Application Support Center. Under the regulations, failing to complete biometrics without good cause constitutes abandonment of the application, so the appointment notice is not something to set aside.

The 4,000 annual cap and “reserved decisions”

Federal law limits cancellation of removal grants to 4,000 per fiscal year nationwide. The regulations provide that once grants are no longer available in a fiscal year, decisions to grant relief must be reserved and are issued when numbers become available in a later year, in the order the cases became ready. Denials are not capped; only grants wait.

What this means for an applicant in New Orleans is that the judge may hear the whole case, find every element proven, and then reserve the decision because the year’s numbers are gone. EOIR’s own public notice warns that the cap may result in an application not being approved for several years. During that time the case remains pending, the applicant remains in proceedings, and the final order and green card come only when the number is assigned. A reserved decision is not a denial, but it is also not a grant, and it is worth asking about work authorization while the application is pending.

If the judge denies the application

A denial can be appealed to the Board of Immigration Appeals by filing a Notice of Appeal (Form EOIR-26), with its own filing fee, which EOIR lists at $1,060 as of October 1, 2026. The deadline is short. EOIR’s current guidance states that the appeal deadline for immigration court decisions is 30 days, after a 2026 rule that would have cut it to 10 days was set aside by a federal court. The Notice of Appeal has to be received by the Board, not just mailed, by the deadline. Because the appeal rules have been in flux, confirm the deadline the day the decision is issued rather than relying on an older notice.

Realistic timelines in New Orleans

A 42B case runs through the same stages as any removal case: the NTA, one or more master calendar hearings, the filing of the application, biometrics, and an individual (merits) hearing where the applicant and witnesses testify. In the New Orleans court, individual hearings for non-detained respondents are commonly set a year or more after the application is filed, and settings two years out are not unusual. Add the possibility of a reserved decision under the cap, and a successful 42B can take several years from NTA to green card. Detained cases move far faster, often within months, which leaves much less time to gather the hardship evidence.

That time is useful if the hardship record is built and updated as children grow and circumstances change. For what happens at the first hearings, see What Happens at an Immigration Master Calendar Hearing in New Orleans?, and for how remote appearances work in this court, see Can I Get an Internet-Based (Remote) Immigration Hearing?

For purposes of compliance with the Louisiana Rules of Professional Conduct, the attorney responsible for this content is Donald J. Melancon (105 Field Street, Belle Chasse, Louisiana 70037).