The form of immigration relief known as cancellation of removal most often is available to foreign nationals who are legal permanent residents in the U.S., or green card holders. However, a maximum of 4,000 foreign nationals who do not have a green card can get a green card through cancellation of removal each year. The cap may be reached well before the end of the year, so you should find out whether this is an option for you before putting significant effort into making this argument. Also, the immigration judge has the discretion to determine whether you should receive cancellation of removal and get a green card. Just meeting the threshold requirements is not enough without also showing that you are deserving. An immigration lawyer can help you compile the necessary documents and build your case.

There are four main requirements to establish your eligibility for cancellation of removal if you are not a green card holder. You must show that you have lived in the U.S. for the last 10 years, you have good moral character, and your departure from the U.S. would cause an exceptional and extremely unusual hardship to a spouse, parent, or child who is a U.S. citizen or a green card holder. (A child is defined as someone who is unmarried and under 21 at the time that the judge reaches a decision in your case.) Finally, you must not have certain types of criminal convictions or violations on your record. The requirements are different for foreign nationals who hold a green card, and you can read more here about those requirements.

Residency Requirement

You must have been continuously present in the U.S. for at least 10 years between the date of your arrival and the date on which you seek cancellation of removal. A period of continuous presence will stop if you receive a Notice to Appear in immigration proceedings, if you leave the U.S. for more than 90 days, or if you take multiple trips outside the U.S. that last for a total of more than 180 days. It also will stop if you commit certain crimes or if you leave the U.S. under a voluntary departure order, among other situations. If you spent two years on active service in the U.S. military, you will not need to meet the 10-year continuous presence requirement.

You can use witness testimony and declarations to prove your continuous presence in the U.S. Sometimes tangible evidence like pay stubs or rental documents can help meet this requirement as well.

Hardship Requirement

You should be aware that you will need to show more than the general sadness of your family members at your departure. The hardship needs to be exceptional and extremely unusual, and immigration judges take this language seriously. You might be able to meet this requirement if you can show that your U.S. citizen children do not speak the language in your home country, you have no family members or friends there who can support you, or one of your children has a serious medical condition for which they need to receive treatment in the U.S.

Good Moral Character Requirement

Immigration law lists certain characteristics that automatically prevent a foreign national from having good moral character, such as alcoholism or substance abuse. However, the judge also has the discretion to find that a foreign national lacks good moral character based on factors not listed by the law. You can discuss any possible red flags with your lawyer and devise a strategy to work around them.

Last updated April 2019