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For immigrants facing removal from the United States, clear court rules and regulations should be mandatory.

In the absence of judicial clarity, immigrants’ fortunes are akin to flipping a coin in the air.

Being deported can mean permanent separation from loved ones – spouses, children, parents, brothers and sisters.  In most instances, it also leads to a loss of one’s friends, community, and employment.

With all this at stake, the Board of Immigration Appeals (BIA) failure to provide guidance on several legal issues over the past 13 years is inexcusable.

Thirteen years ago, a major change took place in immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) went into effect.

Thirteen years later,  the dust should have settled.

Yet, the lack of guidance by the BIA, the nation’s top immigration court, causes many immigration attorneys to wonder what some of the major changes mean.

IIRAIRA And Changes To Immigration Law

In particular, IIRAIRA terminated certain forms of relief open to  immigrants placed in immigration court deportation proceedings.

A new system, based on the concept of removal, replaced the old system of deportation.

Prior to the transformation, undocumented immigrants facing deportation could seek suspension of deportation.  After the shift, they could ask for a new form of immigration relief, cancellation of removal.

Although both forms of relief revolve around the requirement of hardship, major differences exist between the two standards.

  • 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.

For a deportation defense attorney, understanding the boundaries of this qualitative shift is critical.  The Board of Immigration Appeals is responsible for providing this guidance.

A Short Overview of The BIA’s Failure To Provide Guidance

Immigrants who had sought 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, to date, the BIA has only issued three opinions pertaining to hardship regarding cancellation of removal.  The BIA’s most recent decision, Matter of Recinas (PDF), was published 7 1/2 years ago, on September 19, 2002.

The three published BIA decisions center on a narrow family situation.  Each case pertained to U.S. citizen children raised by a single immigrant parent.  As an deportation defense trial and immigration appeals lawyer, I can testify this is not the only  family situation presented in deportation and removal cases.

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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.

The ABA Takes A Stand

The American Bar Association (ABA) recently chimed in on the problems with the immigration appellate system.  According to the ABA, “Since the Board is not required to issue decisions responding to all arguments by the parties, they can be as short as two or three sentences, even when the issues would appear to merit a longer discussion.”

Adds the ABA, “The lack of detailed, reasoned decisions denies both the noncitizen and a reviewing court a sufficient explanation of the Board’s decision.”

In other words, the effect of the BIA’s failure 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 to demonstrate the requisite hardship.

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

As I’ve noted before, the BIA has slumbered long enough.  It’s time to get to work.

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