If you are a foreign-born person who has been living in the U.S. without legal status for a long time, and you have been placed into removal (deportation) proceedings, you may be eligible for what’s called “Non-LPR Cancellation of Removal” and a green card. The conditions for this form of relief from deportation are as follows:
You have been living (“continuously physically present”) in the U.S. for at least ten years.
Your being removed (“deported”) from the U.S. would cause “exceptional and extremely unusual hardship” to your qualifying relative(s), who is (or are) U.S. citizens or lawful permanent residents (LPRs).
You can show that you have “good moral character.”
You have not been convicted of certain crimes or violated certain laws.
However, even if you meet all of the basic requirements, the immigration judge still has discretion to decide whether or not to approve an application for cancellation. Therefore, it is important to make clear to the immigration judge that you are honest, sincere, and really deserve to be allowed to stay in the U.S. and receive a green card.
A big part of the process of convincing the judge is providing as much evidence as possible to show that you meet the basic requirements and also “deserve” the benefits of cancellation. But if there is something about your case that you think makes you ineligible or might make the judge decide not to exercise his or her freedom in your favor, you should definitely see a lawyer. (It's a good idea to see a lawyer in any case, for help preparing a complete application and set of supporting documents.)
Nationwide, immigration judges can approve only 4,000 cancellation applications per year from non-LPRs (people without green cards). The cap is often reached very quickly. This means that even if you have an approvable cancellation application, the immigration judge will not be able to approve your application unless a "number" (in essence, a green card) is available.
To qualify for non-LPR cancellation, you must be able to show that you have been continuously physically present for the ten years immediately before the date that you apply for cancellation. (There's an exception if you have completed two years of active service in the U.S. armed forces, in which case those two years alone are enough to meet the time requirements for non-LPR cancellation.)
The date of your arrival starts the ten-year “clock.” The clock stops when you receive a Notice to Appear in immigration court, commit certain types of crimes, or have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days. There are also other ways that the clock can be stopped, such as leaving the U.S. under a “voluntary departure order.”
Testimony and written declarations from you and other people who know you can be enough to show ten years of residence. However, if you have documentary evidence of your U.S. residence, such as rent receipts, credit card statements, pay stubs, and so on, you should provide it to the court.
To qualify for cancellation under the Immigration and Nationality Act (I.N.A.) § 240A(b)(1)(D), the undocumented immigrant must have a relative who is his or her “spouse, parent, or child” and “is a citizen of the U.S. or an alien lawfully admitted for permanent residence.”
If relying on a child, you must consider the immigration law’s definition of “child,” found at I.N.A. Section 101(b). It says that a child must be unmarried and under 21 years of age, which courts have interpreted to mean applies at the time the judge decides on your case. (See, for example, the Ninth Circuit case of Mendez-Garcia v. Lynch, 10/20/2016.)
Unfortunately, that means you will need to get through the immigration court proceedings before the child turns 21. This can be problematic: Immigration courts are quite backed up, and it may take more than one hearing date to get to the end of your testimony and cross-examination by the government attorney, after which you'll have to hope that the judge issues a decision in court or soon thereafter.
Every removal (deportation) causes hardship. To qualify for non-LPR cancellation, however, the hardship to the relative must be “exceptional and extremely unusual.” The distinction between “hardship” and “exceptional and extremely unusual” is critical.
To be approved for non-LPR cancellation, it is not enough to show that a U.S. citizen or LPR relative would suffer financially, emotionally, and physically. Instead, the applicant must prove that the qualifying relative would suffer to a degree that goes above and beyond the type of suffering that would normally be expected when a close relative is deported.
For example, evidence of a minor child's severe illness and the lack of available medical care in the undocumented immigrant's home country might be enough. Evidence of a long history of living in the U.S., children who do not speak the language of the country to which you would be removed, and no support structure to rely on in your home country, might also be enough.
An immigration judge will deny an application for non-LPR cancellation if the applicant does not have “good moral character”. The judge will decide that the applicant does not have good moral character if the law specifically says that the applicant cannot have good moral character (because, for example, he or she is a “habitual drunkard”) or if the judge decides that there are other “discretionary factors” indicating that the applicant isn't a “good person.”
There are many reasons in the law for a judge to find that an applicant for non-LPR cancellation does not have good moral character. So, if you think that there are any negative facts in your case, such as criminal convictions, that might make you ineligible for non-LPR cancellation, talk to an attorney.
Another remedy, LPR cancellation, should not be confused with this one. No hardship has to be shown and there are only three basic requirements: five years as an LPR; seven years of continuous residence in the U.S.; and no aggravated felony convictions. There is also no annual limit to the number of LPRs who can receive LPR cancellation. See How to Apply for Cancellation of Removal (LPR).