Cancellation of Removal, often referred to as the “10-year hardship” cases, can be an important pathway to permanent residency for certain qualifying applicants. The most important concept to remember is that you can only exercise this right in Removal (Deportation) proceedings and the denial of the application will result in a deportation order. These applications are based on the premise that you have lived in the US for at least 10 years and your deportation will result in extreme and unusual hardship to your parent, spouse or child under 21 who is either a US citizen or permanent resident.
Other key issues to keep in mind:
- The most successful cases often involve real or potential harm to the qualifying relative involving physical or emotional disability. Dependents with Alzheimer’s disease, dementia, autism, cancer, heart disease, or other disabilities requiring professional treatment that cannot be obtained in the home country are the most persuasive cases.
- This relief is unavailable for individuals convicted of a felony or certain misdemeanors.
- Documentation of 10-years of physical presence in the US can be difficult to obtain, particularly if you entered illegally and lived “below the radar” for most of your time here. Although many judges will accept testimony from friends, relatives, and others to your presence in the US, the most persuasive evidence includes tax records, payroll records, bank statements, utility bills, leases, motor vehicle records, medical records, marriage and birth records, and similar business records. If you have been sending money home and have Western Union type receipts or have a chain of other correspondence such as emails, this can also be useful.
- If you are claiming a medical or emotional disability to a qualifying relative, be prepared to present medical records and most likely a report from a doctor, psychiatrist or psychologist.
- You will need to show both that your relatives will be harmed by living without you in the US if you are deported and that these relatives will also be harmed if they chose to accompany you to your country in the event of your deportation. The availability of medical treatment, language or other barriers to future employment or education and political or other turmoil are all relevant.
- You will be entitled to employment authorization after the cancellation application is filed.
- There is an annual cap of 4,000 “green card” visas issued each year to approved applicants. Currently, this is creating a backlog of several years. Typically, a judge who is willing to approve a Cancellation case will have to withhold a final decision until the visa is available, allowing you to stay and work legally in the US until the green card is finally issued.
- As indicated above, you must be in Removal proceedings to apply for Cancellation of Removal.
- The overwhelming number of Cancellation approvals come out of the New York immigration courts where judges tend to be far more sympathetic than they tend to be elsewhere in the US.