While there are a number of Green Card eligibility categories—family-based, employment-based, special immigrants, refugees, asylees, and victims of abuse, human trafficking, or qualifying crimes, to name the major ones—having a sick child in the United States doesn’t automatically qualify a parent for a Green Card.
The only scenario where having a sick child could lead to a Green Card would be if the parent is subject to removal proceedings (deportation), and successfully petitions for a Cancellation of Removal during those proceedings based on extreme hardship to the sick child.
That said, Cancellation of Removal is only an option if removal proceedings have already begun. If you are an undocumented immigrant and you aren’t on the radar of ICE officials, it’s generally inadvisable to alert immigration officials to your illegal status in order to launch removal proceedings in the hopes that you might get lucky and qualify for a Green Card before you’re deported.
This is highly risky and often unsuccessful without the assistance of an experienced immigration attorney. As such, you should only consider Cancellation of Removal options if you are already facing deportation through active removal proceedings.
Qualifications for Cancellation of Removal
Foreign nationals and citizens who have been placed into removal proceedings by ICE may be eligible for Non-LPR Cancellation of Removal and a Green Card under the following conditions:
- Removing the immigrant from the United States would cause “exceptional and extremely unusual hardship” to a qualifying relative who is a US citizen or lawful permanent resident (Green Card holder)
- The immigrant exhibits good moral character
- The immigrant has been continuously physically present in the United States for at least 10 years
- The immigrant has not been convicted of certain crimes or violated certain laws that would make them ineligible for a Cancellation of Removal
Following is an overview of the four requirements for Non-LPR Cancellation of Removal, along with a discussion of how you can prove your qualifications for each requirement.
Proving Extreme Hardship
First of all, you’ll need to have a qualifying family member who is a US citizen or lawful permanent resident. In most cases, this includes a spouse, parent, or child. If the family member is a child, the child must be unmarried and under age 21 at the time of your case.
Once you have identified a qualifying family member, the next step is to prove that this family member will experience “exceptional and extremely unusual hardship” if you are deported. Generally speaking, it’s not enough to show that the family member would suffer physically, emotionally, or financially—you’ll need to prove that the family member in question would suffer to a degree far beyond the level that would normally be expected when an immediate family member is deported.
In the case of a parent who has a sick child, you may have a strong case if you can prove that your child’s illness is severe (chronic, critical, or terminal) and there is a lack of suitable medical care for the child in your home country. You may be able to strengthen your case if you can demonstrate that the child can’t speak the native language in your home country, or that there isn’t a financial support structure that you and the child can rely on in your home country (e.g. you wouldn’t be able to afford medical treatment).
Demonstrating Good Moral Character
There are a number of factors that can be used to demonstrate good moral character. Active participation with your children’s school, church, social groups, and community service organizations are a great place to start. It also helps if you have a clean criminal record, and character recommendations from members of the community.
On the other hand, there are plenty of factors that can go against your case for good moral character. Any criminal charge, arrest, or conviction will be difficult to get around, as would a poor reputation as a drunkard or drug user.
Maintaining a Physical Presence in the US for 10 Years
This requirement may sound easy to prove, but in practice it can be rather difficult. The 10-year clock starts the date that you arrived in the United States and ends the date that you received a Notice to Appear in immigration court or committed a qualifying crime. The clock also stops if you have a single absence of more than 90 days, or multiple absences that add up to more than 180 days spent outside of the United States. If you were previously subject to a removal order and chose to leave the United States voluntarily, this stops the clock, too.
To prove the residency requirement, you may submit testimony and written declarations from yourself, friends, family, and employers. Documentary evidence such as rent receipts, mortgage payments, pay stubs, and credit card statements are even more convincing evidence, so you should include these with your petition whenever possible.
There is one notable exception to the 10-year residency rule, and that is for members of the US armed forces. If you have completed two years of active-duty service, your military service is sufficient to meet the time requirement for Cancellation of Removal.
There are 14 types of crimes that can render an immigrant ineligible for Cancellation of Removal under INA Sections 212(a)(2) and 237(a)(3). These include:
- Aggravated felonies
- Certain offenses involving firearms
- Crimes against children
- Crimes involving stalking, domestic violence, or violating a protection order
- Crimes of moral turpitude (arson, assault with vicious intent, bribery, counterfeiting, forgery, fraud, gross indecency, kidnapping, mayhem, stealing, tax evasion, or transporting stolen property)
- Crimes relating to a controlled substance
- Crimes with a potential sentence of one year or longer
- Document fraud, failure to register for documents, or falsification of documents
- Espionage or treason (with a potential sentence of 5+ years)
- Failure to register as a sex offender (if applicable)
- Falsely claiming citizenship
- High speed flight from an immigration checkpoint
- Violation of the Military Selective Service Act or Trading with the Enemy Act
The Importance of Hiring an Experienced Immigration Attorney
Even if you meet these four requirements for relief from deportation, the final decision on whether to grant a Cancellation of Removal is based on the immigration judge’s discretion. Unfortunately, it’s not unusual to see an immigrant who qualifies for relief be denied their request for Cancellation of Removal. Furthermore, Congress currently sets the annual limit for approved Cancellation of Removal cases at just 4,000, and that limit is reached fairly quickly each year.
Given these extremely challenging barriers, it’s crucial to work with an immigration attorney, especially one who has experience petitioning for Non-LPR Cancellation of Removal. A good attorney can strengthen your case with convincing evidence, plead for the judge’s sympathy, and help you successfully navigate the confusing immigration court system.
Receive Help With Deportation Defense in Arizona
As an Arizona-based law firm, JacksonWhite offers deportation defense and a wide array of other immigration services to Arizona families. When it comes to your future working with an immigration attorney is your best chance at success, especially if you have a sick child in extreme hardship that requires immediate health care or health care only offered in the US.
Call our Immigration team at (480) 626-2388 to discuss your case today.
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