Deportation Defense Challenge: Understanding Cancellation Of Removal
For deportation defense attorneys, April Fool’s Day has a special meaning.
Thirteen years ago, on April 1, 1997, huge changes were made to immigration law. Large adjustments took place in the area of deportation defense.
Yet, immigration courts have provided only minimum guidance about what these changes really mean. Without judicial guidance, it is no surprise the number of immigration appeals have increased in the past decade.
Suspension Of Deportation
Under the old law, immigrants who are not lawful permanent residents, could ask the immigration judge for suspension of deportation. Suspension of deportation required immigrants to prove, if they were deported, it would cause extreme hardship to themselves or to a qualifying relative. A qualifying relative is a parent, spouse, or child who is a U.S. citizen or lawful permanent resident.
Cancellation Of Removal
When the law changed, suspension of deportation was eliminated. Now, cancellation of removal for undocumented immigrants is the road to take. Under the new rule, immigrants have to prove, if they are deported, it would cause exceptional and extremely unusual hardship to a qualifying relative. Whether the immigrant will suffer any type of hardship is not important to the court anymore.
The Role Of The Board Of Immigration Appeals
So what is the difference between extreme hardship and exceptional and extremely unusual hardship?
Good question.
Normally, the answer for this type of question is provided by the Board of Immigration Appeals (BIA).
The BIA is the highest immigration agency responsible for figuring out what these changes mean. It is not an easy job.
For suspension of deportation, there were many court decisions, over 35 years, explaining how different family situations should be evaluated by judges. These decisions were critical to Riverside deportation defense attorneys, immigration appeals lawyer, government immigration lawyers, and immigration court judges.
For cancellation of removal, the Board of Immigration Appeals has only issued three decisions.
Three decisions in 13 years.
The most recent decision, Matter of Recinas, was issued on September 19, 2002. In other words, the BIA has not provided directions for these types of cases since 7 1/2 years ago.
How The BIA’s Lack Of Clarity Harms Immigrants
I had two deportation cases at immigration court for my Riverside immigration attorney office clients this week. Neither case not fit any of the three decisions made by the BIA. It is not in the best interests of justice for an immigration lawyer to have to guess what factors a judge will consider relevant or important.
Yet, this is the system in place today. Immigration judges are required to make their decisions using these few cases. It is not legal fairness when over 99% of the family situations are not addressed by them.
Having to engage in this type of decision-making is a major flaw in the immigration court process.
Immigration judges, like all parties to legal disputes, are mere mortals. They need guidance to make fair decisions.
As a Riverside immigration lawyer, I, too, need guidance to present proper evidence.
Most importantly, clients deserve guidance.
In my view, there is no good excuse for the BIA failure to define critically standards of relief from deportation.
As I wrote last year, the Board of Immigration Appeals has been asleep long enough. I hoped to wake them up.
Unfortunately, they still have not heard the alarm ring.
And while the BIA continues to snooze, deserving immigrants are being deported and separated from their families, often forever.
Hardly due process in my view.
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