Determine whether you have been in the U.S. for a long enough time
The first eligibility qualification is whether the person has been continuously present in the U.S. for the past 10 years. Special rules for calculating the physical presence time are set out in INA A?240A(d):
(1) the time period ends when the person is served a Notice to Appear;
(2) departures from the U.S. of less-than 90 days does not break the physical presence time, unless the sum of all trips is more than 180 days; and
(3) continuity is not required for a person absent from the U.S. because of service in the U.S. armed forces if the person enlisted in the U.S..
Can you show that you have had "good moral character" during the past 10 years?
"Good moral character" is defined by statute in INAA?101(f) (see also the Immigration Court Benchbook). Essentially, the statute says you don't have "good moral character" if you are:
(1) a habitual drunkard (or an addict);
(2) a prostitute (or pimp) or drug trafficker;
(3) a person who makes most of their income from illegal gambling;
(4) a person who has given false testimony to get an immigration benefit;
(5) convicted of an aggravated felony;
(6) a terrorist or torturor, or someone who has belonged to an organization condoning those acts;
(7) a person who has made a false claim to citizenship or voted illegally.
If you are not on this list, the statute says that the Immigration Judge may still find that you did not have "good moral character" for other reasons.
Have you been convicted of certain crimes?
This list may seem duplicative of the "good moral character" list, but there are some differences. The statute says that people convicted of the following crimes are ineligible for Cancellation of Removal:
(1) an offense under INA A?212(a)(2) [crimes of moral turpitude, controlled substance offenses, prostitution];
(2) an offense under INA A?237(a)(2) [crimes of moral turpitude];
(3) an offense under INA A?237(a)(3) [falsifying documents or failing to register].
There is no time limit to this conviction bar to cancellation, but there may be a waiver of this subsection for victims of domestic violence - see INA A?237(a)(7).
Can you show that removal would result in "exceptional and extremely unusual hardship" to your U.S. citizen or LPR spouse, parent, or child?
This may be the hardest criterion for most people to meet. "Exceptional and extremely unusual hardship" is defined as hardship that is substantially beyond that which would ordinarily be expected to result from your own deportation. Usually people will be able to show this hardship by a US citizen or LPR child or spouse having a serious medical condition that would be worsened by the person's removal. However, "the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief." Matter of Recinas, 23 I&N Dec. 467, 470 (2002).
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