OBTAINING RESIDENCY BASED ON “CANCELLATION OF REMOVAL”
Obtaining Residency Based on “Cancellation of Removal”
It is well-known that certain immigrants who have lived in the U.S. for at least ten years and have a Legal Permanent Resident or U.S.
citizen spouse, children or parent may be able to obtain their green card. However, there is a lot of misunderstanding about this
important remedy, called “Cancellation of Removal.” Here are some key points:
1. You can only apply for this relief in Immigration Court. Unlike some simpler green card applications, where you can apply before U.S.
Citizenship and Immigration Services directly, this remedy is only available before a Judge. Therefore, a person has to be in removal
(or deportation) proceedings to apply. If someone is not already in removal proceedings, he can place himself in removal proceedings, but
this is only recommended when the case is very strong, because the alternative is a deportation order.
2. The law requires “exceptional and extreme hardship” to family. The standard to win these types of cases is usually higher than people
think. You have to show that your removal from the United States would cause hardship to your family that is much more extreme than to
an average immigrant family. The hardship could be financial, medical, or emotional. For example, if you are a single parent of
four children, or the parent of a disabled or very sick child, it may be worth the risk to place yourself in removal proceedings to apply
for this relief.
3. The ten-year presence rule. There are some people who have been in the U.S. for more than ten years who will be barred from this remedy.
For example, if you received a Notice to Appear to immigration court before you accumulated ten years in the U.S., your time will stop
accruing and will not be able to attain ten years of physical presence required under the law.
If you had court proceedings or were ordered removed in the past, this may bar you depending on the circumstances. Also
remember: even if you were in the U.S. for ten years, it will be your burden to prove that through documents (not just statements from
people) such as medical records, bank statements, receipts, etc.
4. If you were ever arrested… you must consult with an experienced lawyer who will be able to tell you how your arrests will affect your
case. You should always be honest with your lawyer, because it is not possible to win this case without having your fingerprints checked by
the FBI. You should never underestimate any arrest because the immigration law can be very unforgiving. Two convictions for petty theft, for example, could bar you from getting your green card.
5. If you entered illegally, you still qualify. Whether you entered the United States without documentation, or with a visa, you remain
eligible to apply for this remedy. This is great news because so many other remedies are not available to illegal entrants. The bottom line is that if you have been in the United States for ten years or more, and have a U.S. citizen or Legal Permanent Resident spouse, child, or parent, you may be eligible and should consult with an experienced immigration lawyer to thoroughly assess your legal situation. While these are some basic guidelines, you should not make the assessment on your own.
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