Publications

August, 2007

ILLEGAL ALIENS WITH AMERICAN FAMILY – A WAY TO OBTAIN RESIDENCE

CANCELLATION OF REMOVAL

For undocumented aliens who have resided in the United States for at least 10 years, and who have immediate family members who are in the United States, there is a remedy to help themselves called Cancellation of Removal. This remedy requires a hearing before an Immigration Judge, and proof of the following:

1. At least 10 years of continuous residence in the U.S. immediately before the application is made;
2. Good moral character;
3. Immediate relatives: this includes a U.S. citizen spouse, parent, and/or U.S. born dependent children;
4. A showing that the U.S. citizen spouse, or parent, and/or the U.S. citizen dependent children would suffer extreme unusual hardship if the applicant were deported to his/her own country.

In addition, the following tests are applied:

1. Other close family relationships;
2. Employment history;
3. Property, community, and/or business ties to the community;
4. Evidence of service to the community;
5. If the applicant has a criminal record, then proof of rehabilitation;

Negative aspects include:

1. Why the applicant may be excludable;
2. Previous violations of the Immigration Act;
3. Any criminal record;
4. Any evidence that may exist of the applicant’s bad character.

CONTINUOUS PHYSICAL PRESENCE

1. Not required if the applicant has served 24 months in the U.S. armed forces, and received an honorable discharge, and was present in the U.S. when he/she enlisted;
2. Continuous physical presence is halted at the point that the applicant receives an Order to Shown Cause of why the applicant should not be deportable. If the applicant has already acquired 10 years of residence prior to receiving this Notice then the applicant is not barred from proceeding. If the applicant committed an aggravated felony or a crime involving moral turpitude within the 10 years of residence, then the applicant may be barred from the continuous period of residence.
3. If the applicant departed for more than 90 days on a personal trip or 180 days in the aggregate or has left the U.S. even with voluntary departure if the departure was occasioned by the threat of deportation the applicant may be stopped from succeeding. A conviction for a petty offence does not bar proceedings for Cancellation.

INELIGIBLE APPLICANTS

1. Crewmen who entered after June 30, 1964 ;
2. A J exchange visitor who entered to receive graduate medical training;
3. Aliens who persecuted others or who were served with an Order to Show Cause or committed an excludable offense within the 10 years of physical presence in the U.S. prior to the 10 years having been reached.

BATTERED SPOUSE OR CHILD

Cancellation of Removal may be granted to a spouse or child ho was battered or subjected to extreme cruelty by a spouse or parent. This applicant must prove good moral character. Only 3 years is required before immediately proceeding with the application. The applicant must prove that removal would result in extreme hardship to the applicant, the applicant’s child or the applicant’s parent.

If you need help or advise, call us at 212-944-9420.

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New York Immigration Lawyers > Immigration Publications > August 2007