As Undocumented Person, How Can I Apply for a Ten-Year Green Card?

A common topic of interest among undocumented immigrants (sometimes called illegal aliens) is the possibility that, after ten years spent living in the United States, they can apply for a so-called "ten-year green card." The legal term for this is "cancellation of removal." (See Immigration and Nationality Act (I.N.A.) § 240A(b)(1)(D).)

This prospect for legalizing one's immigration status is less straightforward than it sounds, however. Let's unpack some of the myths around the so-called ten-year green card and look at how, realistically, someone who is legally eligible might actually apply for this remedy.

So-Called Ten-Year Green Card Available Only in Removal (Deportation) Proceedings

The first thing to realize is that, unlike some immigration benefits that one can apply to the U.S. government for upon meeting the eligibility requirements, cancellation of removal is meant only as a defense to deportation. So, literally speaking, you would need to have either been arrested by Immigration and Customs Enforcement (ICE) or otherwise placed into removal proceedings before an immigration court judge.

There is no method for simply submitting an application for the cancellation of removal remedy outside of a courtroom setting (the details and risks of which are discussed below). Despite the risks, this possibility has led some undocumented persons to extreme actions in order to get into immigration court, as also discussed later in this article. It also leads to scams by fake attorneys who charge immigrants large sums of money for nothing.

Eligibility Requirements for Ten-Year Green Card

Setting aside for now the issue of how to get into deportation proceedings, let's look at what you would need to show if you got before a judge. The requirements for cancellation of removal include that you:

• have lived in the U.S. (been "continuously physically present" here) for at least ten years
• have U.S. citizens or lawful permanent resident (LPR) family in the U.S., such as a parent, spouse, and/or child (under 21 and unmarried) who would experience "exceptional and extremely unusual hardship" if you were deported from the U.S. (the more family members, the better)
• are a person of "good moral character," and
• have not been convicted of certain crimes or violated certain laws.

In other words, proving ten years' presence is just the beginning. The harder part for most applicants is proving the degree of suffering that would be caused to close family members who have U.S. citizenship or a green card if they were removed from the United States. What's more, you'll need to convince the immigration judge that you are a good person who deserves this relief in general.

Family separation by itself is not considered to meet the required level of hardship, since it's presumably a problem for every applicant. You will need a more unique set of circumstances, such as a family member with medical or psychological problems that would be worsened by your departure.

See Green Card Through Cancellation of Removal (Non-LPR): Who Qualifies? for further discussion and details.

Methods of Getting Into Immigration Court Removal Proceedings

Getting into immigration court proceedings the trickiest part. After having spent a decade avoiding arrest by U.S. immigration authorities, you now would need to seek it out. This turns out to be harder than some people expect. U.S. immigration officials are overworked. Even when someone calls the tip line to report an undocumented person, follow-up is not guaranteed.

Another common way people land in removal proceedings (usually without wanting to) is by filing an application for some other immigration benefit.

For instance, someone who marries a U.S. citizen and then files to adjust status but fails to convince U.S. Citizenship and Immigration Services (USCIS) that the marriage is not a fraud would likely be ordered to report for removal proceedings. Similarly, people who apply for asylum and fails to convince USCIS that they fear persecution based on one of the five recognized grounds would be referred to immigration court.

That has led some undocumented persons who've been in the U.S. for ten years to deliberately submit some such application, knowing that it will ultimately fail. In fact, unscrupulous immigration practitioners or notaries sometimes suggest this (and charge good money to prepare the application).

There's a huge problem with this strategy, though. The immigration judge might figure out what you did. This is the same judge whom you will need to convince that you are a moral, law-abiding person. Your submission of an application that's frivolous at best and fraudulent at worst could completely undermine that. In fact, the law says that someone who submits a frivolous asylum application becomes permanently eligible for any other immigration benefit.

Risks of Getting Into Removal Proceedings

Somewhat obviously, the point of removal proceedings is, from the U.S. government's view, to attempt to deport the immigrant. If you manage to place yourself into such proceedings and then lose your case, you might be able to appeal to the Board of Immigration Appeals, and then to federal court (with the help of a lawyer, which will be expensive), but eventually you could be ordered deported and given a date to show up for transport out of the United States.

What's more, many immigration judges see their role as that of enforcer. You can't choose your judge, and you might be assigned one who is entirely unsympathetic to your situation. The judge is allowed to deny your case for discretionary reasons, meaning because the judge simply didn't feel emotionally moved enough to grant it.

Getting Legal Help

Talk to an experienced attorney for a full analysis of your case's potential to win, any reasonable strategies that might help you apply for cancellation of removal, and an assessment of the risks if you lose your case and are ordered deported from the United States. And if you are arrested and placed into immigration court proceedings, getting an attorney's help will be crucial.