Many immigrants who have close family members with legal status in the United States entered illegally or overstayed their visas more than 10 years ago. It may seem puzzling why someone residing in the United States for such a long time would have difficulties gaining resident status in the U.S.
A legal defense called Cancellation of Removal and Adjustment of Status (“Cancellation”) could help many in the above situation. The problem is that the individual must be faced with deportation charges in Immigration Court. Cancellation applicants must generally show the following:
- Physical presence in the United States for a minimum of ten years;
- No convictions for specified crimes;
- Good moral character, as defined in immigration law;
- A qualifying relative, which must be a spouse, parent, or child, who is U.S. Citizen or lawful permanent resident; AND
- That their deportation would result in exceptional and extremely unusual hardship to their qualifying relative.
Popularly known in immigrant communities as the 10 year law, or “la ley de dies años,” (a misnomer given the other crucial requirements), when asserted in Court an Immigration Judge has the authority to cancel an immigrant’s removal and adjust their status to that of a lawful permanent resident. Unfortunately, short of being faced with deportation in Immigration Court, there is no simple immigration form that can be proactively filed with U.S. Citizenship and Immigration Services (“USCIS”).
As a result, there is substantial debate in the legal community in regard to the mechanisms by which an immigrant’s right to seek Cancellation should be asserted. Some overly cautious attorneys simply turn away all immigrants in this situation.
These attorneys tell immigrants to come back if they are ever faced with deportation charges, while others even—perplexingly—encourage immigrants to appear before Immigration and Customs Enforcement and request to be charged with deportation in Immigration Court.
On the other end of the spectrum, overly aggressive attorneys downplay the significant risk to immigrants and their families when they face deportation, while failing to adequately explain the high legal threshold that must be meet to win Cancellation. These attorneys, and many notaries, play loosely with federal laws requiring complete honesty to immigration authorities, while completing hundreds of asylum applications that are not based on good faith claims. In doing so, immigrants may gain a temporary right to work in the United States, but they also risk ultimately being ordered deported and barred from seeking all immigration benefits.