Even if someone is in the United States illegally, if they have been here long enough, in some situations, an immigration judge may allow the person to stay and obtain a green card.

The law says that an individual in removal proceedings (deportation) may apply for cancellation of removal if he can establish 10 years of continuous physical presence in the United States, good moral character, and demonstrate that his removal would result in exceptional and extremely unusual hardship to his qualifying relative. The “qualifying relative” must be a citizen or lawful permanent resident of the United States and could be his parent, spouse, or child under 21 years of age.

Cancellation of Removal for Non-Permanent Residents – Example

Take for example a person who walks across the Mexican border. If the person is not caught by Immigration for ten years, and either marries a US citizen or has US born children, no serious crimes, and can show the required level of hardship, may in the discretion of the immigration judge remain in the US.

Let’s take each of these one by one:

1) The ten years must be “continuous”. What happens in the event the person is in the United States for several years and then returns home, only to return illegally at a later date?. If he was not out of the country for more than 90 days, or 180 days in the aggregate, then the ten year period will not have been broken.

2)  and 3) Being married or having children meets the technical requirement of having a qualified relative. However, remember the real key is showing that removal of the United States would result in exceptional and extremely unusual hardship to the qualifying relative. This is a high standard to meet, and although it does not mean that the hardship has to reach a level of being unconscionable, it is more than the type of hardship which would normally occur when someone is deported from the United States.

4) Finally, there is the good moral character standard which must be met. Some would argue that a person who broke the laws of this country by entering without inspection should not be deemed to be a person of good moral character. However, the law is not written with this in mind. Generally, if no serious crimes have been committed, and a person has ties to the community such as membership in religious, fraternal or community organizations, and submits good moral character letters, then the Immigration Judge will normally find good moral character.

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