It’s one of the biggest fears of undocumented immigrants: getting a notice to appear for a removal proceeding that may end in deportation. Often this happens after an arrest for another offense and so it makes an already stressful situation even worse. Fortunately, some immigrants can avoid deportation and even get a green card in the process. Section 240A(b) of the Immigration and Nationality Act (INA) provides one of the most common ways immigrants are able to get cancellation of removal.
Under the rules, undocumented immigrants must meet the following requirements in order to cancel their removal:
- Continual presence in the US for at least 10 years.
This means the individual can’t have been outside the US at any time for more than 90 consecutive days or outside the US for 180 days in the aggregate over the last 10 years.
It also should be noted that the 10 year time frame may not be measured the way individuals think. The clock stops running:
- When the immigrant receives the notice to appear regardless of when they actually appear or when they receive the order of deportation; or
- In the case of commission of certain crimes listed in INA sections 237(a)(2) and (3), when the crime was committed regardless of when a notice to appear is served.
For example, you’ve been in the US for eight years and you are arrested for possession of a firearm. This would stop the clock right away – so you couldn’t satisfy the 10 year requirement.
- Demonstrate good moral character.
This is decided on a case-by-case basis, however, individuals who have committed any offenses listed under INA sections 212(a)(2), 237(a)(2) and 237(a)(3) are disqualified from proving good moral character. These crimes include those involving narcotics, firearms as well as other serious crimes.
You should note that paying taxes on a timely basis every year will help your case. This demonstrates continuing physical presence in the US because if you’ve been paying taxes every year, it is likely you’ve been present in the US. It also shows good moral character. However, you must have been paying every year, not a lump sum every few years. Also remember that you should be reporting actual income. It is not believable to be reporting income that is too low for you to be living on, particularly if you have family with you. You can refer to the poverty guidelines for your region, which provide information on income for your region.
- Your deportation would cause extreme and exceptional hardship to your spouse, child or parent who is a lawful permanent resident or US citizen.
What is important is the hardship caused to the spouse, child or parent, not the hardship to the undocumented immigrant. Also the hardship must be extreme and exceptional. For example, if the spouse, child, or parent is suffering from a serious and debilitating illness (i.e. cancer, cerebral palsy, or down syndrome).
If an immigrant can satisfy all three requirements, he or she can get cancellation of removal and obtain a green card. Meeting one or two of the requirements, no matter how strong your case, is not sufficient.
If you’ve been arrested or received a notice of removal, contact us for help with your case.
