People often ask whether they are eligible to receive their green card
if they have been in the United States for over 10 years. Unfortunately,
the answer to that is "no"; 10 years of physical presence, in
and of itself, is not a basis for applying for lawful permanent residence.
There is one situation, however, when 10 years of presence may help.
Cancellation of removal is a ground of relief available only to individuals
in immigration removal proceedings in immigration court. In other words,
there is no affirmative way to apply for cancellation prior to being instructed
to appear before an immigration judge. If cancellation is granted, instead
of being removed from the United States, the individual receives lawful
permanent resident status. There are no derivative beneficiaries of cancellation
of removal, so only you, not any family members, will receive a green
card. Once you become a lawful permanent resident, however, you can then
petition for other qualifying family members.
The good news is that cancellation is available even to individuals who
entered the United States illegally, and the residence need not be in
legal status. Residence for 10 years, however, is not enough as there
are other requirements. First, your 10 years of residence must be continuous.
If you leave the United States for anything more than a very brief period
of time, the continuity is broken. For example, if you enter the United
States in 2000, leave in 2010 for 1 year and then reenter in 2011, you
do not have 10 years of continuous physical presence. Additionally, once
you are issued a notice to appear in immigration court, your accumulation
of physical presence ends. No matter how long your removal proceedings
last, for purposes of cancellation of removal, your continuous physical
presence ends on the date the notice to appear is issued.
The second requirement for cancellation of removal is that the applicant
has not been convicted of certain criminal offenses. There are many disqualifying
offenses including: controlled substance offenses, aggravated felonies,
and crimes involving moral turpitude. Each of these categories encompasses
numerous offenses, which should be discussed with an immigration attorney
prior to applying for cancellation of removal.
Next, you must show that you possess good moral character. This can be
shown by: lack of criminal record, payment of income taxes, positive employment
history, support of your family, etc. Good moral character must be shown
for the 10 years prior to the application for cancellation.
The final requirement for cancellation, and often the most difficult to
meet, is that your removal would result in exceptional and extremely unusual
hardship to your U.S. citizen or LPR parent, child, or spouse. Note that
if you do not have one of these qualifying relatives, you are not eligible
to even apply for cancellation. If you meet the first three requirements
and do have such a relative, then you are statutorily eligible to apply
for cancellation, but must then prove the hardship that would be caused
by your removal. Remember, it is not the hardship to you, the person in
removal proceedings that must be shown; it is the hardship to the qualifying
relative. There is no exact formula for determining what constitutes exceptional
and extremely unusual hardship, so discuss your specific situation with
an immigration attorney.
Cancellation of removal is discretionary. This means that even if you prove
all of the above requirements, the judge is not required to grant cancellation,
so it is important, throughout the proceedings, to show why your case
deserves a positive exercise of discretion.