In this time of increasing difficulty for many immigrants in the United States, it is important for my readers to be aware of how recent changes to the Immigration Laws may affect their cases. The “Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRAIRA”) made sweeping changes to the Immigration and Nationality Act. One critical change is the repeal of the “Suspension of Deportation Law,” and the addition of the “Cancellation of Removal Law.”
I believe that this is the most significant change in the new Act. It may affect many people already in deportation proceedings, and also those who will soon find themselves in Immigration Court after the INS denies their asylum, LULAC, or CSS applications. An immigrant who believes his case may be subject to rules changes needs to protect himself. The best way to do so is to seek the assistance of an attorney who appears in court on a regular basis. Only an attorney who is in court regularly can competently inform you of the possible courses a case may take under the varied interpretations of the new law offered by different Immigration Judges.
Pursuant to prior law, Suspension of Deportation was available to any alien who
(1) had seven years continuous physical presence in the United States;
(2) demonstrated that he was a person of good moral character for the same period, and
(3) could establish that his deportation would result in an extreme hardship to the alien himself and/or a parent, spouse or child who had the status of a lawful permanent resident of United States Citizen. Congress repealed this section in IIRAIRA, and replaced it with the “Cancellation of removal” provision.
Cancellation of Removal is available for persons who
(1) have TEN years of continuous physical presence in the United States;
(2) demonstrate that they have been persons of good moral character for that same period; and
(3) can establish that his deportation would result in an “EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP” to a spouse, parent or child who has the status of a lawful permanent resident or U.S. citizen.
The most stark change is that the basic requirement is now ten years, as opposed to the previous requirement of seven. The new law states that any departures in excess of three months will automatically break the person’s chain of continuous residence.
A more subtle, but much more damaging change is in the new hardship requirement. Not only has the standard for hardship been raised, but Congress has eliminated the ability to consider the hardship of the alien under proceedings. In other words, any hardship that the alien himself would suffer due to his removal from the United States would no longer be a qualifying factor.
The standard which will be used has not been fully developed, as yet no case law exists under the new act. One can only surmise that the “exceptional and extremely unusual” language will require a very well-documented claim of hardship, and not simply testimony from the alien’s family that they will “be sad” if he is deported. Since the alien’s hardship is no longer a factor, an alien must have a parent, spouse or child who is a permanent resident or citizen to qualify for cancellation of removal. The duty of a competent attorney is to shape this new law, and instruct the Judges as to what Congress meant by “exceptional and extremely unusual.”
Although the new provision is not effective until April 1, 1997, the rules affecting one’s eligibility have been implemented already. Under the old law, the seven years could be accumulated up to and including the date of the trial. The new law states that a person must accrue the entire seven or ten year time period before a “Notice to Appear ” in proceedings is served on the immigrant.
This accrual/tolling provision is the subject of considerable controversy. Some Judges are interpreting this “tolling law” to be effective now. These judges are ruling aliens ineligible for suspension if they were served with an Order to Show Cause (“OSC”) in deportation proceedings prior to the seventh anniversary of their arrival in the United States. I believe that this position is incorrect, and it shall be the subject of a future article.
The bottom line is that the “suspension” case, as we knew it, no longer exists. Immigration law has become extremely complicated. The law is intricate to the point where an attorney must conduct a detailed analysis to determine what rules apply and whether a person qualifies under those rules. Attorneys can no longer get away with the “don’t worry about it” answer to a client’s question about his case. If that is the answer you get when you ask a question, you should be worried.