World Journal Weekly Q & A - August 28, 2011

Q & A 1.


Q&A 1.

Reader Has Developmentally Slow Child of Three, Been Here 10 Years Plus, and Wants to Know the Chances for 10-Year Green Card.

An anonymous reader asks:

I have been here for 13 years and have a child born outside marriage who is now three years old, and has been judged as being one year behind other children in an evaluation.  The doctor says that he must go to a special school. I have not filed taxes for most years that I've been here. Is this enough so that I can get a 10 year green card based on the hardship to my child? 

Dear reader:

The law for the 10 year green card, or cancellation of removal for certain nonresident aliens, not only requires 10 years' presence in the U.S. and good moral character, but also exceptional and extremely unusual hardship to a U.S. citizen parent, spouse, or child.  The hardship standard was changed under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 from extreme hardship.  Because of the current extremely high standard of hardship required, the 10 year green card case is not generally one that we recommend people seek affirmatively as the result depends too much upon each immigration judge.  It must be noted that this relief is only available before the immigration court, not the Immigration Service.  Therefore an adverse decision usually results in an order of removal for the person to leave the U.S.  Cancellation of removal where one is affirmatively seeking the relief is more suited to an extremely strong case.  Otherwise the relief would normally be requested defensively where the individual has already had an encounter with U.S.ICE and been served with a notice to appear (NTA) in the immigration court.  Your case cannot be looked upon at this time as an extremely strong one since a child as young as yours may speed up in development and begin to catch up with the rest of his or her peers.  Therefore you may have a situation in which the diagnosis and prognosis of the child between the time of starting the case and the merits hearing may be radically different.  Also you have not included in your question whether the child's condition is able to be treated effectively in your home country.  If it can be, that fact weakens the argument of hardship.  Your not having filed taxes for many years is also a negative factor in an immigration judge's consideration.  This can mostly be remedied through the filing of back taxes, and I note that there have been many instances in which immigration judges have required the payment of back taxes prior to adjudicating this type of application.

 

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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.