Twelve and a half years ago, immigration law underwent a major shift. A broad piece of federal legislation, IIRAIRA, went into effect.

By now the dust should have settled.

However, due to the lack of guidance  by the nation’s top immigration court, many immigrants and their attorneys are still wondering what some of the changes mean.

IIRAIRA curtailed several avenues of relief available to immigrants, including those placed in immigration court proceedings. A new system, based on removal, replaced the system of deportation.

Before the shift, undocumented immigrants could request suspension of deportation from an immigration judge. After the change, they were allowed to seek cancellation of removal. Both relief forms depend on the concept of hardship.

The difference between the two hardship formulations is qualitative.

  • Under suspension of deportation, immigrants were required to prove their deportation would result in extreme hardship to themselves or to their qualifying relatives (parents, spouses, or children who are U.S. citizens or permanent residents).
  • Cancellation of removal compels immigrants to demonstrate their removal will cause exceptional and extremely unusual hardship – but only to their qualifying relatives.

Understanding the parameters of this qualitative shift is critical for immigration trial lawyers and their clients. The Board of Immigration Appeals, as the nation’s highest administrative body for interpreting and applying immigration law, is responsible for providing this guidance.

Immigrants seeking suspension of deportation were beneficiaries of a sizable body of case law, dating back over 35 years and covering a variety of family situations. In Matter of Anderson (PDF), the Board set forth a vast list of factors for judges to consider when determining whether hardship existed in a particular case.

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 years ago.

All three opinions have centered on a narrow family situation involving U.S. children being raised by a single parent.  As an immigration trial and appeals attorney for deportation defense cases, I can testify this is not the only  set of circumstances presented to immigration judges in hardship cases.

I also know  the Board’s silence cannot be attributed to lack of opportunity.  Immigration judges handle about 300,000 – 350,000 cases per year; appeals are filed in about 10% of these cases.

To say the least, the BIA’s failure to provide a list of new hardship factors, even remotely akin to Anderson, is a failure of leadership.

The net effect is two-fold.

Immigration attorneys and their clients operate in a legal limbo. They seek relief without judicial guidelines regarding what evidence should be presented.

Immigration judges, too, are placed in an untenable situation, lacking benchmarks to determine whether an immigrant merits being allowed to remain in the United States.

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