Entrants to the U.S. who came here more than 10 years ago, with or without a visa, and have remained in the U.S. continuously since coming, and who have a U.S. citizen or permanent resident spouse, child or parent, who would suffer extreme hardship if the entrant were required to leave, would be eligible to apply for the remedy of Cancellation of  Removal and Adjustment of Status.

PHYSICAL PRESENCE

Proof must be adduced of 10 years of continuous presence in the U.S.  This proof may consist of leases during the 10 year period, filed tax returns, job evidence, proof of births of children, marriage or other vital statistics, bills and/or receipts for TV, electricity or telephone, witnesses who have personal knowledge and a bank account, just as examples.

GOOD MORAL CHARACTER

The absence of the commission of a crime of moral turpitude or of an aggravated felony, would indicate good moral character.  Petty offenses would not indicate a bad character but a conviction for domestic violence would.  Witnesses may testify as to the good character traits of the applicant which would be effective as well in showing the extreme hardship if the applicant were required to leave for a U.S. spouse, child or parent.

EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP

To prove a case for cancellation an applicant must demonstrate that a spouse, child or parent would suffer hardship that is substantially beyond that which would normally occur to a spouse, child or parent if their immediate relative were deported.  Such factors as the following may be introduced as proof:

1.  that the alien facing deportation has been gainfully employed and is the sole support for his wife and children;

2.  the importance of the alien’s work to his/her employer;

3.  the emotional dependence of older parents on the applicant, as well as financial dependence;

4.   the emotional inability of a child to go with his/her alien deported parent because of  close ties to the U.S. of the citizen or permanent resident child, especially children who are of school age. The Courts have held that the proof must be compelling.  As an example we have been successful in a case of a 12 year old child who suffered nightmares over the prospect of departure from the U.S., and who suffered a paralysis in her ability in succeeding in school because of the prospect of a separation from her close friends and schoolmates and her teachers, especially in light of the fact that prior to the institution of removal proceedings, the child had excelled in school and had been popular with her classmates and friends.

5.  Other important factors to be considered include:

a) family ties in the U.S. and abroad;

b) length of residence in the U.S.;

c) the health of the deportable alien and his immediate family members;

d) the political and economic conditions in the country of return;

e) the possibility of other means of adjusting status in the U.S. by the deportable alien;

f) the deportable alien and his/her immediate family members’ involvement and position in the community, and

g) the deportable alien’s immigration history.

An aged parent who is solely dependent for support, or a child with a serious health

problem, or a child with special needs in school are issues to be considered by the Immigration

Judge.   All hardship factors are to be considered in the aggregate in assessing exceptional

and extremely unusual hardship.

BATTERED SPOUSE, CHILD OR PARENT

A spouse, child or parent who has been the victim of extreme cruelty by a U.S. citizen or permanent resident may qualify for Cancellation of Removal if the applicant has been present in the U.S. for at least 3 years and the applicant has been a person of good moral character during these three years.  Proof must b e presented that the applicant would suffer extreme hardship or to his/her child or parent.

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