Green Card Through Cancellation of Removal (Non-LPR): Who Qualifies?

If you've lived in the U.S. for ten years, have good moral character, and meet other requirements, you might be able to defend against deportation and receive a green card.

If you are a foreign-born person who has been living in the U.S. without legal status for a very long time, and you have been placed into removal (deportation) proceedings, you might actually have an excellent defense. You might 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:

  1. You have been living ("continuously physically present") in the U.S. for at least ten years.
  2. 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).
  3. You can show that you are a person of "good moral character," and have been for at least those ten years.
  4. You have not been convicted of certain crimes or violated certain laws.

Proving That You're Eligible for Cancellation of Removal Is Your "Burden" or Responsibility

You have what's called the "burden of proof" to show that you deserve cancellation of removal. Also, it is a discretionary remedy, which means that even if you meet all of the basic requirements, the immigration judge can still decide whether or not you truly merit a grant of cancellation. Therefore, it is vital to make clear 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 immigration judge is providing as much evidence as possible to show that you meet the basic requirements and also deserve the benefits of cancellation, as described below.

But if there is something about your case that you think makes you ineligible or might make the judge decide not to grant your request, 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.

Recognize also that this "burden of proof" can get into complex legal areas. In 2021, for example, the Supreme Court held that it extends to proving whether something is a crime involving moral turpitude; and that an immigrant who had been convicted of using a false Social Security number had failed to prove this. (See Pereida v. Wilkinson.)

Meeting the Ten Years' U.S. Residence Requirement for Cancellation of Removal

To qualify for non-LPR cancellation, you must be able to show that you have been continuously physically present in the United States for ten years or more. (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 in the United States starts the ten-year "clock." This doesn't have to be your latest arrival; it can be the day you "moved" here, so long as you do not have a single absence from the U.S. of more than 90 days or multiple absences adding up to more than 180 days after that. Such absences would stop the clock, and you'd have to start over at accruing ten years.

The clock also stops when you either receive a Notice to Appear (NTA) in immigration court for removal proceedings or if you commit certain types of crimes, 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 prove 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.

Meeting the "Qualifying Relative" Requirement for Cancellation of Removal

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 a "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 extremely backed up, and it might 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.

Meeting the "Exceptional and Extremely Unusual Hardship" Requirement for Cancellation of Removal

Every removal (deportation) causes hardship to someone. To qualify for non-LPR cancellation, however, the hardship to the U.S. 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 normally 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.

Meeting the "Good Moral Character" Requirement for Cancellation of Removal

An immigration judge will deny an application for non-LPR cancellation if the applicant does not have "good moral character." In fact, ten years' worth of good moral character is required; though one bit of good news is that the clock doesn't stop when the person is placed into removal proceedings. Unlike with continuous residence, the foreign national is allowed to count backwards from the immigration judge's decision in the case; or even the Board of Immigration Appeals (B.I.A.)'s decision if the case goes to an appeal.

On the positive side of proving good moral character, you might show evidence of volunteer work, steady employment, commitment to family, and rehabilitation after any crimes. These can outweigh some (but not all) negative factors in a cancellation case.

An immigration judge must, however, decide that the applicant does not have good moral character if the law specifically says that someone who committed a particular act cannot have good moral character (for example, due to being a "habitual drunkard") or if the judge decides that other "discretionary factors" indicate that the applicant isn't a good person.

What's more, applicants are permanently barred from establishing good moral character if she they've been convicted of murder or an aggravated felony after November 29, 1990, or have taken part in persecution, genocide, torture, or severe violations of religious freedom. In other words, any of these will block a judge's grant of cancellation even if they took place more than ten years before.

If you are having trouble proving good moral character, or think that there are negative factors in your case, such as criminal convictions, which might make you ineligible for non-LPR cancellation, talk to an attorney.

Difference Between LPR Cancellation and non-LPR Cancellation

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).

If You Win Your Cancellation of Removal Case

Nationwide, immigration judges can approve only 4,000 cancellation applications per year from non-LPRs (people without green cards). The cap is often reached 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.

Eventually, however, the court should issue you an approval, along with instructions for registering for your green card. See Won a Cancellation Case: When You'll Get Your Green Card for details.

Getting Legal Help

Any time someone is in immigration court, getting an attorney's help can be critical. It's not required, but the U.S. government will have its own attorney arguing for your deportation. That puts you at a disadvantage unless you have your own attorney to help present the facts and legal arguments in support of your case.

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