If you have been placed in removal proceedings and you have resided in the US for 10 years or more, you may be eligible to apply for a green card through Cancellation of Removal for non-LPRs before an Immigration Judge.
To win your case, you must satisfy each of the following conditions:
1. You have been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the U.S. Armed Forces, were present in the U.S. during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
- You have been a person of good moral character for ten years;
- You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
- Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.
Exceptional and Extremely Unusual Hardship
To establish “exceptional and extremely unusual hardship,” you must show that your qualifying relative would suffer hardship substantially beyond that which would ordinarily result from your removal from the United States. Hardship to yourself will not be considered by the Immigration Judge. The Judge will consider your qualifying relative’s age, health, length of residence in the United States, as well as family and community ties in the U.S. and abroad. All hardship factors should be considered in the aggregate.
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The Board of Immigration Appeals (BIA) has determined that diminished educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.”
The BIA has published the following decisions to define the hardship standard in cancellation of removal for non-LPRs cases:
Special relaxed rules for cancellation of removal for non-LPRs apply to battered spouses and children.
Only 4,000 persons may be granted cancellation of removal for non-LPRs and suspension of deportation in a single fiscal year.
What To Do Before You Apply
If you are already in removal proceedings and meet the statutory qualifications for applying for cancellation of removal, it is probably a wise idea to apply. However, if you are not in removal proceedings, and cancellation of removal seems to be your only option to legalize your immigration status, think twice before applying. If you lose, you could be deported. In any case, it is best to schedule a consultation with an immigration attorney experienced in presenting such cases in Immigration Court.
For an example of a family who was granted cancellation of removal for non-LPRs by an Immigration Judge, please see Cabrera Family Wins Right to Remain in US
Cancellation of Removal for Non-LPRs Resources
- Non-LPR Cancellation of Removal: An Overview of Eligibility – ILRC (June 2018)
- Court Rules on Standard of Proof for Inadmissible LPR in Removal Proceedings
- Precedent Decisions of the BIA
- Board Precedents and Related Court Decisions Chart
- How To Avoid Deportation
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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