“Cancellation of removal” is a defense to deportation.  If successful, the applicant is not deported, and instead receives a green card (permanent residence). This defense is only available in removal proceedings; you cannot “apply for the ten-year rule” unless you have a deportation case in front of an immigration judge.

This defense is for people who do not have any immigration status, who are losing their immigration status in proceedings, or who are permanent residents but aren’t eligible for Cancellation of Removal for Lawful Permanent Residents and or other more generous defenses for permanent residents.

To win, the applicant must prove:

  • That she lived continuously in the United States for at least 10 years before removal proceedings began.  Short departures don’t disqualify an applicant, but she must show that she did not leave for more than 90 days in a single trip, or more than 180 days total.
  • That during the 10 years leading up to her final hearing, she was a “person of good moral character.”  She must usually show that she has paid her taxes and does not have certain disqualifying criminal convictions.
  • That her deportation would cause exceptional and extremely unusual hardship to her US citizen or permanent resident parent, spouse, or minor child (or stepchild).  All deportations cause family hardship, but the strongest cases usually include very serious medical or psychiatric conditions.
  • That she has not been convicted of certain disqualifying criminal offenses at any time, even more than 10 years ago;
  • That she “merits a favorable exercise of discretion” – in other words, she must convince the judge that she deserves to stay in the US even though she doesn’t have status.

Once the application for cancellation of removal is filed with the court, the applicant can apply for a work permit, which she renews every year while she is waiting for her final hearing (trial).

At the trial (“individual hearing”), the judge will review the documents the applicant and the prosecutor have submitted. The attorney helps the applicant and witnesses speak to the judge about the case, and offers legal argument for why the applicant qualifies and deserves to win. A prosecuting attorney representing Immigration and Customs Enforcement (ICE) usually opposes the case and cross-examines each witness, trying to convince the judge that she should deny the case and deport the applicant.  If the judge denies the case, she usually orders the applicant deported.  If she approves the case, the applicant becomes a permanent resident.

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For more information on how Siskind Susser can help you with Family Immigration and Naturalization, call us at 800-343-4890 (U.S.) or 901-682-6455 (International).

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