Cancellation of Removal (Non-LPR)

Kelli Allen

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.

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