Carlos Batara – Immigration Lawyer header image

Dark Days Of Deportation Defense: The BIA Failure To Lead

– Posted in: Immigration Law, Policy & Politics | Immigration Appeals

For immigration attorneys, April Fool’s Day has a special meaning.

On April 1, 1997, huge changes were made to immigration law.   Many of the largest adjustments took place in the area of deportation defense.

That’s over 13 years ago.

Since that time, immigration courts have provided only minimum guidance about what these changes really mean.

We live in an Age of Immigration Darkness.

Without judicial interpretation of the new rules, it is no surprise the number of immigration appeals have dramatically increased in the past decade.

Shortly after the new rules went into place, an American Bar Association study showed, 8% of Ninth Circuit appeals were immigration cases in 2002.

Just a few years later, they constituted nearly 48% of new filings.

Federal judges were not amused.  Their backlog reached all time highs. .

A Switch Of Hardship Standards

For undocumented immigrants with cases at immigration court, the biggest modification was the change from one form of deportation relief to another.

Suspension Of Deportation

Under the old law, they could ask the immigration judge for Suspension of Deportation.  This required proving their deportation would cause extreme hardship to themselves or to a qualifying relative. Under this relief, a qualifying relative was defined as 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.  Cancellation of Removal became the road to take. Now undocumented immigrants have to prove, if they are deported, it will cause exceptional and extremely unusual hardship to a qualifying relative. Whether immigrants will themselves suffer any type of hardship is not important to the court anymore.

By now the dust from these changes should have settled.

However, due to a lack of guidance by the Board of Immigration Appeals, the nation’s top immigration court, immigrants and their attorneys still wonder what some of the changes mean.

Without judicial instruction, trying to understand the fine print of cancellation of removal is similar to searching for a needle in a haystack.

In other words, deportation lawyers have been left in the dark with no flash lights to help lead them out of the muddled legal maze caused by the switch from one suspension of deportation to cancellation of removal.

In Absentia Rule-Making: 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. After all, the BIA is the highest immigration agency responsible for figuring out what these changes mean.

Theirs is not an easy job.

For Suspension of Deportation, there was a sizable body of case law, dating back over 35 years, explaining how different family situations should be evaluated by judges.  These decisions were critical to deportation defense attorneys, immigration appeals lawyers, government representatives, as well as and immigration court judges.

In sharp contrast, the BIA has only issued three opinions pertaining to hardship in the Cancellation of Removal context . . . and its most recent decision, Matter of Recinas (PDF), was published on September 19, 2002 – a period of 7 1/2 years ago.

Justice is not served by such lethargic leadership and in-absentia rule-making.

To be blunt, the Board’s failure is inexcusable, especially given its role at the top of the immigration court hierarchy.

Having slumbered for well past a decade, it’s time for the BIA to get to work.

The Apparition Of Immigrant Hardship

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.

Clearly, it is not in the best interests of justice for an immigration lawyer to have to guess what factors a trial judge will consider relevant or important.

Yet, this is the system in place today.

At best, the current standard of immigration hardship is like a ghostly apparition. All parties involved in removal cases are operating under the same legal deficiency.

Of special concern, immigration judges are forced to choose whether to deport individuals in hundreds of cases, from coast to coast, by using the spare set of principles gleaned from merely three BIA decisions.

When over 99% of the family situations are not addressed by these few appellate cases, can the immigration court system be said to truly rest on legal fairness?

Leaving trial judges free to engage in this type of decision-making is a major flaw in the immigration court process.

Immigration judges need direction from the higher courts to ensure their decisions reflect consistency from trial court to trial court.

After all, immigration trial judges do not interpret the law. They apply it.

Immigration lawyers, too, need guidance to present proper evidence on their clients’ behalf.

Otherwise, they are reduced to practicing deportation and removal defense in the dark, without the light of judicial precedence to guide their courtroom calculations.

Most importantly, immigrants facing the permanent loss of their family, home, work, and community deserve and are entitled to such guidance.

There is no good excuse for the BIA failure to define critically significant standards of relief from deportation with greater clarity.

As I wrote last year, when it comes to Cancellation of Removal cases involving undocumented immigrants, the Board of Immigration Appeals has been asleep long enough.  I had hoped my article would wake them up. Unfortunately, they still have not heard the alarm ring.

All the while the BIA continues to snooze, deserving immigrants are being deported and separated from their families, often forever.

Hardly due process in my view.

By Carlos Batara, Immigration Law, Policy, And Politics