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Carlos Batara - Immigration Attorney

Practicing Deportation Defense In The Dark: The BIA Failure To Guide

– Posted in: Immigration Appeals

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

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

That’s over 22 years ago.

(Note: this post has been updated in June 2019). 

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

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

As a recently released American Bar Association study has shown, 8% of Ninth Circuit appeals were immigration cases in 2002.

Today, they constitute nearly 48% of new filings.

A Switch Of Hardship Standards

For instance, consider the change of the hardship terminology which governs removal proceedings for undocumented immigrants.

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 immigrants will themselves suffer any type of hardship is not important to the court anymore.

Given the BIA’s lack of guidance, trying to understand the fine print of cancellation of removal is similar to searching for a needle in a haystack.

Deportation lawyers, in other words, have been left in the dark with no flash lights to help guide them out of the muddled legal maze caused by the switch from 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 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.

However, in terms of hardship, the BIA has adopted an approach of in-absentia rule-making.

For cancellation of removal, the Board of Immigration Appeals has only issued three decisions.

Three decisions in 21 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 17 years ago.

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

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.

In short, the standard of immigration hardship is like a ghostly apparition.

Attorneys for immigrants are not alone in their confusion.

All parties involved in removal cases are operating under the same legal deficiency. This includes the immigrant, the immigration lawyer, the government attorney, and the judge.

Immigration judges have been 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 instruction 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.

In my view, there is no good excuse for the  BIA failure to define critically significant standards of relief from deportation.

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 , Immigration Law, Policy, And Politics