Fact & Fiction of the “10 Year Law”: How Changes in the Law Impact Your Immigration Case
Many people are under the impression that if they have been in the United States for more than ten years, they can qualify for a green card under the “10 Year Law.” Unfortunately, this is not correct. The “Ten Year Law” is fiction; it does not exist.
The “Ten Year Law” was invented by unscrupulous immigration attorneys to describe a process by which they intentionally placed clients into deportation proceedings, then apply on their behalf for Cancellation of Removal. Being physically present in the United States for 10 years is one requirement (among others) of Cancellation of Removal. A person who is granted Cancellation of Removal by an Immigration Judge is given a green card and allowed to remain in the United States. However, the process of obtaining a green card this way is riskier and more complicated than the benign “Ten Year Law” name implies.
The process referred to as the “Ten Year Law” is a fiction.
The practice of obtaining green cards 'under' the “10 Year Law” begins when an attorney or notario files a frivolous asylum application on behalf of his client, anticipating that the application will be denied. Once an asylum application is denied, the applicant will be put into deportation proceedings. However, due to long processing times, it was several months to a year before a decision was made on the client’s application (It should be noted that recent policy changes have significantly decreased processing times for asylum applications.) However, most people did not mind long processing times because they were issued work authorization after their asylum application has been pending for six months.
Victims of dishonest immigration lawyers mistakenly believed everything was going smoothly. They were thrilled to have a work permit, believing that a green card wasn't far behind. What these attorneys or notarios did not explain is in order to be eligible for a green card, client must first begin deportation proceedings, where they risk being ejected from the U.S. It is only during deportation proceedings that they can apply for a green card under a Cancellation of Removal application, and not an application under the fictitious “10 Year Law.”
Once in deportation, longtime residents must go before an Immigration Judge who will decide whether or not they will be deported. It does not matter that the client may not have been told by his attorney that he was being placed into proceedings. It doesn’t matter that the statement contained in the application may be fake or that the client believed he was just filing a simple application under something called the “Ten Year Law.” Once in deportation proceedings, the client is at the mercy of the Immigration Judge deciding whether to approve the Cancellation of Removal application, which would allow him to remain in the United States with a green card. Without approval, the Judge will deport him.
Cancellation of Removal Requirements
There are several requirements (in addition to 10 years of physical presence) that a person must meet to be eligible for Cancellation of Removal. An applicant must be able to prove that he has had “good moral character” for a statutory period of time, that he is deserving of a favorable exercise of discretion, and also that he has certain U.S. citizen or permanent resident family members that would suffer “exceptional and extremely unusual hardship” if he were deported.
How a person proves they qualify varies from case to case. For example, the hardship a permanent resident spouse might suffer is not the same type of hardship a U.S. citizen child would suffer. It’s also important to understand who are qualifying family members for purposes of Cancellation of Removal. In addition, there are factors that affect whether a person is able to demonstrate good moral character or that he is deserving of a favorable exercise of discretion on his application.
In addition, a person will not qualify for Cancellation of Removal if he has been convicted of certain criminal offenses. A person who has been arrested for or convicted of a criminal offense should consult with an immigration attorney before filing any type of immigration application.
Finally, even if an applicant meets all of the other requirements of Cancellation of Removal, he will not be granted Cancellation of Removal if he has not been physically present in the United States for at least 10 years BEFORE being issued a Notice to Appear (“NTA”). A NTA is the document which officially puts a person into deportation. Therefore, it is not enough that a person has been in the United States for ten years. That person must have been in the United States for at least ten years before receiving a NTA in order to qualify for Cancellation of Removal.
In light of all this, it is essential that applicants for Cancellation of Removal retain an attorney who is experienced in successfully presenting these types of cases to an Immigration Judge.
Changes in What Constitutes "10 Years"
For many years, due to long back-logs in the immigration courts, NTAs were initially issued with the time and place for the deportation hearing written as “to be set.” Under previous immigration law, if a person was served this type of NTA before he completed ten years in the United States, then he would not qualify for Cancellation of Removal.
The good news is that due to recent court decisions, this is no longer the law. The new rule is that a person’s NTA must now list a specific time and place and if it does not, then the person can continue to accumulate years of physical presence for purposes of applying for Cancellation of Removal.
For example, under the previous rule, if a person entered the United States in 2000, but was issued a NTA in 2009, he would not qualify for Cancellation of Removal in 2018, even though he has been physically present in the United States for more than 10 years. This is because he did not complete 10 years in the United States before he was served with the NTA. He only had 9 years. The service of the NTA essentially “stopped the clock” on the person’s time in the United States.
Under the new law though, if the NTA does not list a specific time and place for the deportation proceedings, or lists the time and place as “to be set” then the NTA does not “stop the clock” on the person’s time in the United States; this person may now be eligible to apply for Cancellation of Removal.
This change in the law means that potentially thousands of people who were issued NTAs which did not list a specific time and place for their proceedings may now qualify for Cancellation of Removal. If you were told that you did not qualify for Cancellation of Removal in the past, you should consult with a immigration attorney to see if you may now qualify.
Understanding the Facts & Fictions of Immigration Law
Immigration law is complicated. Some immigration attorneys try to oversimplify the law by creating phrases such as the “10 Year Law,” but the lawyers at our firm will always be forthright and honest about your immigration options. We stay up to date on constantly-changing immigration law and will advise you of new immigration options which may become available to you. We also understand that every case is different. We know that what may have worked for a family member or friend may not work in your case, which is why our attorneys will take the time to assess your individual case and officer a customized immigration analysis.
We urge you to schedule a free consultation with one of our experienced attorneys. Call (800) 909-8129 or use our online form to schedule your free consultation. Se Habla Espanol.