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Cancellation of Removal/Deportation, Second Quarter 2011

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The topic we have selected for this newsletter is “Cancellation of Removal/Deportation or what is commonly know as the 10-year law”. We hope you will find it informative and useful.

Please forward to anyone you think may find it useful. It is always our pleasure to work with you.

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The FitzGerald & Company Team

Cancellation of Removal/Deportation or what is commonly known as “the 10-year law”

Who is eligible for what is known as “the 10-year law” or Cancellation of Removal/Deportation?

There is a provision of the Immigration Law that allows certain individuals to obtain a green card from an Immigration Judge if they:

  • have lived in the U.S. for 10 continuous years, during which they have not been subject to a deportation process (a person with a deportation process after these 10 years may qualify),
  • have not been convicted of certain criminal offences (specified in the law) and have good moral character,
  • have an immediate family member (spouse, children under 21 years or parents), who is a legal permanent resident or U.S. citizen, and
  • can demonstrate that any of these family members will suffer an exceptional and extremely unusual hardship if the individual is deported.

What is considered exceptional and extremely unusual hardship?

An exceptional and extremely unusual hardship is a hardship substantially beyond that which would ordinarily result from an alien’s removal. (See Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001)

In general, a judge will consider the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal are also relevant factors, but will generally be insufficient without more direct evidence of hardship to support a finding of exceptional and extremely unusual hardship. (See Matter of Andazola-Rivas, 23 I&N Dec. 319, 323-324 (BIA 2002); Matter of Monreal, 23 I&N Dec. at 63; 23 I&N Dec. 45 (BIA 2001))

If a qualifying family member is suffering from a significant medical problem (i.e. asthma, diabetes, autism, heart conditions, etc.) an emotional or psychological issue (depression, anxiety disorder, etc.), or another difficulty such as a severe learning disability, then the individual may be able to establish exceptional and extremely unusual hardship.

What documents are necessary to present a Cancellation case?

  • Evidence of having lived in the U.S. for 10 years (taxes, medical records, leases, school records, property records, bank statements, etc.);
  • Evidence of good moral character (police reports or court records if applicable);
  • Proof that the person is supporting their family (payment for household expenses and that the family is not receiving public or government assistance except in special circumstances);
  • Evidence of the existence of a U.S. citizen or legal permanent resident qualifying immediate family member (birth certificates, marriage certificate, passports, green cards); and
  • Evidence of exceptional and extremely unusual hardship to a qualifying family member(s) (counseling/therapy records, medical records, school reports that indicate the qualifying family member would suffer an exceptional and extremely unusual hardship if the supporting member of the family is removed from the U.S.).

How long does the process take and do I receive work authorization while in the process?

The entire process generally takes 20 to 24 months depending upon the Immigration Court’s schedule.

The person is eligible for employment authorization once the application for Cancellation is filed. It generally takes the USCIS 3 months to produce the work authorization document.

What are the risks involved in this process?

The risk is that if cancellation is not granted, the applicant will be ordered to leave the United States. For this reason, it is advisable that an immigration attorney experienced with cancellation matters carefully review the merits of your case, to see if you qualify for this benefit and have a strong case, before taking this step. It is within the discretion of the judge to approve or deny the case.

In what situations can the law for cancellation of removal help U.S. legal permanent residents?

There is also a provision of the “Cancellation” law for Legal Permanent Residents. If a resident has been in the U.S. for 7 years and has had residency for 5 years and after this period of time commits a criminal offense for which he/she may be deported, then the resident may be allowed to stay in the U.S. if he/she can show he or his family would suffer exceptional and extremely unusual hardship if he/she was deported.

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