By Attorneys Robert L. Reeves and Steven J. Malm
Cancellation of removal represents a path to a green card for certain undocumented immigrants that have lived in the United States for long periods of time and have qualifying family ties.
In general, an applicant for cancellation of removal must demonstrate 10 years of continuous physical presence in the United States, good moral character, no disqualifying crimes, and that the applicant’s US citizen or lawful permanent resident child, spouse, or parent will suffer “exceptional and extremely unusual hardship” if the applicant is removed. What constitutes “exceptional and extremely unusual hardship” is defined on a case-by-case basis.
The biggest advantage to cancellation of removal is the opportunity to obtain a green card. The application can only be submitted in removal proceedings, however, so a denial results in a removal (aka deportation) order. Cancellation of removal is a high-risk, high-reward path to a green card.
Any trip in excess of 90 days or multiple trips totaling over 180 days, in aggregate, outside of the United States during the relevant 10 year period interrupts continuous physical presence. Good moral character overlaps somewhat with the requirement that an applicant not have any disqualifying crimes.
However, just because an alien has a criminal record does not necessarily render him ineligible for cancellation. Moreover, the absence of a criminal record does not mean that one can prove good moral character. Developing the hardship aspect of a cancellation case is where most cases rise or fall.
The facts and presentation of a case dictate whether the “exceptional and extremely unusual hardship” standard is met. The successful cancellation of removal applicant must show that a US citizen or lawful permanent resident child, spouse, or parent will suffer “exceptional and extremely unusual hardship.” The hardship analysis factors are: the qualifying relative’s age; length of residence in the United States; difficulty adjusting to life if accompanying the applicant after removal or without the applicant here in the United States; family, financial, business, and other ties to the United States; medical, psychological, and physical problems; or loss of educational opportunity or enrollment in special programs in school.
The case law states that the hardship need not be unconscionable. Cancellation has been granted to applicants facing deportation such as an undocumented single mother raising three US citizen children, the undocumented son of a US citizen father that would suffer depression if his son were deported, and an undocumented father of a gifted youth in school. A finding of “exceptional and extremely unusual hardship” truly depends on identifying factors specific to a case which go beyond ordinary hardship experienced by a person facing deportation.
An experienced and reputable attorney will be able to identify these factors and know how to best present the evidence to support the application. A cancellation of removal application is often considered as a last resort for undocumented individuals in removal proceedings. But, the reward of winning such a case is a green card.