Archive | December, 2012

A New Birth of Freedom

31 Dec

tumblr_mexn1iSUbM1r5j9hco1_1280After several hours of greeting visitors to the White House, on January 1, 1863, Abraham Lincoln went upstairs to his study and made history with his pen.  He signed the Emancipation Proclamation into effect, declaring all slaves living in states rebelling against the U.S. “shall be then, thenceforward, and forever free.”  This document, which lacks any of the soaring rhetoric of the Gettysburg Address or the Second Inaugural, was written in the style of a terse military order.  After all, Lincoln believed that the Constitution rendered him powerless to do anything about slavery as it existed in the states.

At first glance, the Proclamation seemed to do very little.  It purported to free the slaves in territories of the Confederacy in rebellion against the U.S.  Well, the U.S. had very limited power there, anyway, so it is hard to see how the Proclamation could be enforced.  Moreover, it did nothing to effect slavery in the border states that were still part of the Union.  Maryland, Kentucky, and Missouri were slave states and still part of the Union.  The Emancipation Proclamation did nothing to free those slaves.  In addition, the Civil War was not going particularly well for the Union.  The lopsided carnage at Fredericksburg and the stalemate in the West cast a gloomy pall over new year’s 1863.  Lastly, a number of Union soldiers were not too willing to fight to end slavery- they were fighting for Union, not the black man.  They found a prominent leader in the Army of the Potomac’s departed commander, General George B. McClellan.

In addition, there is a school of thought that argues that the slaves essentially liberated themselves.  From the beginning of the Civil War, slaves fled to the Union lines.  This presented a problem to Union commanders.  Under the Fugitive Slave Law, U.S. officials were obligated to return runaway slaves to their masters.  However, when presented with the case of three slaves, Frank Baker, James Townsend and Sheppard Mallory, who had rowed a boat into the Union’s Fort Monroe, General Benjamin Butler, declared them “contraband of war,”- that is, they were being used in support of Confederate armies- and refused to return them.  Although Lincoln had reversed Union generals who attempted to declare slaves free in territories under their control, Lincoln did not disturb Butler’s decision and “contraband camps” sprang up behind Union lines full of slaves who fled their masters.  These slaves went to work as teamsters, cooks and other laborers in support of the Union Army and eventually comprised a good portion of the 200,000+ African-Americans who fought for the Union.  The presence of these contraband camps demanded a solution.

The Emancipation Proclamation transformed the Union Army into an army of liberation.  As it advanced through the South, the Union Army liberated slaves from their masters.  In 1863, large swaths of Confederate territory fell to Union armies, freeing thousands of slaves.  The slave-based economy fell with it.  But until the war was won, the Proclamation meant nothing.  If the Union could not subdue the South, slavery would have continued to flourish in North America. But Lincoln recognized the profound shift of the war for Union that had raged from 1861 to 1863 and the one that would rage for another two years.  Lincoln himself in 1862 stated “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”  But by November 1863, at the Pennsylvania town of Gettysburg, Lincoln uttered the words to define the struggle: “It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

One hundred fifty years ago, the Emancipation Proclamation, more than any other single act, began the slow, bloody process of that new birth of freedom.

What does this have to do with immigrants or immigration law?  Well, I am sure I could labor for a connection, but the messy, hard process of liberation is worthy of a couple of hundred words in any blog, publication, or other media.

Happy new year everyone.

New Memo on Detainers- Will it be Followed?

28 Dec



A persistent and fair criticism of the current administration is that while it has made grand pronouncements of focusing its enforcement efforts on violent criminals and threats to the national security, programs like 287(g) and Secure Communities have scooped far more benign immigrants in their overboard nets.  While the administration has put forward numerous memoranda and made extensive public statements about focusing limited resources on the dangerous and the recidivist immigration violators, the reality has been that, as a result of Secure Communities, immigrants without status and without serious criminal issues encountered by the police either due to a minor offense, while reporting a crime, or while the police look for another individual have been swept into the immigration dragnet, detained and deported.  According to ICE, the government deported over 400,000 people last year and most of them were not “the worst of the worst.”

This practice is due to the combination of two practices.  The first is Secure Communities.  This is the cooperative program between local law enforcement and ICE that checks arrestees (not convicts) against ICE databases.  As a result many individuals stopped for minor offenses, such as driving without a license, are arrested when ICE can not confirm their lawful status.  Ordinarily, individuals stopped under such circumstances are not arrested.  Once arrested, the second practice kicks in when ICE places a detainer on the individual.  A detainer is a request made by ICE to the local police department to hold an individual for 48 hours beyond when they are due to be released so that ICE may assume custody.  Because people arrested for minor offenses are held for brief periods of time in local jails, a detainer placed by ICE has the effect of keeping them detained by the local police department far longer than they would have been without the detainer.  This is one reason that many police departments have resisted and rejected participation in Secure Communities.  When ICE assumes custody, they initiate removal proceedings against the individual, not due to the arrest, but because of the lack of status.  If the individual can not demonstrate that she is likely to obtain some form of relief from removal, ICE will often detain without bond during removal proceedings.  Thus, through the operation of Secure Communities and detainers, many non-criminal immigrants without status have been identified, detained and deported.  This sad procession has undermined the administration’s claims to be focusing on the worst of the worst.

Into this unhappy scenario comes a new memo from ICE Director John Morton issuing new guidelines for the use of detainers.  The director has been a prolific memo writer.  He has issued guidance about ICE’s enforcement priorities and attempted to force a recalcitrant bureaucracy to use its limited resources more wisely.  He has written memos regarding the increased use of prosecutorial discretion to make intelligent decisions about when not to bring removal proceedings, when to terminate removal proceedings and when to exercise discretion not to remove a removable individual.  These memos and his approach to ICE’s responsibilities have resulted in the ICE bureaucracy’s open rebellion against him.  And the continued presence of “Obama, why are you deporting my mama” articles and signs among immigrant youth show that ICE agents continue to resist the administration’s stated approach to enforcement.  So, here comes another memo.  If followed, the memo should have a significant positive impact as it will reduce the number of low enforcement priority immigrants who come into contact with ICE and are, therefore, not placed into removal proceedings.

The detainer memo instructs ICE to be more judicious in the issuance of detainers.  According to the director, ICE should issue detainers against individuals only where: (1) they have reason to believe that the individual is deportable from the U.S. and (2) one of the following factors is present:

  • the individual has a prior felony conviction or has been charged with a felony
  • the individual has three or more prior misdemeanor offenses
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense which relates to: violence, threats, assault, sexual abuse or exploitation, DUI, leaving the scene of an accident, firearms offenses, controlled substance distribution offenses
  • the individual has been convicted of illegal reentry
  • the individual has illegally re-entered the country after removal
  • the individual has outstanding order of removal
  • the individual has been found to have knowingly committed immigration fraud
  • the individual otherwise poses a significant risk to national security, border security or public safety.

Under these guidelines, detainers should be issued much less frequently than they have been over the past few years.  Individuals stopped for driving without a license, arrested for simple marijuana possession, disorderly conduct, underage drinking, petit theft, or other minor offenses should not come to the attention of ICE.  By keeping the immigration detention facilities and the immigration courts free from these low priority individuals, ICE remains free to concentrate on those who present serious public safety and national security risks.  In addition, it has the potential to stop or slow the removal of parents, children, brothers and sisters who are good members of their community except for a momentary and unfortunate interaction with law enforcement.  Properly implemented, the new detainer policy has the potential to drastically reduce the removals of low priority immigrants that have sullied the pro immigrant credentials of this administration.

However, as before, there is a battle going on between the stated desires of the political leadership of ICE and the ICE bureaucracy.  The ICE bureaucracy has proven itself extraordinarily adept at undermining its political leadership and has been in open revolt against the administration for the better part of four years.  Like every other memo and political effort announced by this administration, the challenge will remain in whether they can force an unwilling bureaucracy to yield to the wishes of its civilian leadership.  Lincoln had to fire McClellan, Truman had to fire McArthur and Obama fired McChrystal.  We are not sure who in ICE needs to be fired, but, one way or another, this power struggle will need to be resolved.

Fighting for Togetherness

22 Dec

It isn’t only the holiday that is celebrated, the sweets that are eaten, the gifts that are given, or the resolutions that are made that defines this time of year; it is also family.  Regardless of your religion, your nation of origin, or your profession, our common purpose this time of year is togetherness.  Yet there are so many, no matter how strong their resolve, who are unable to realize that seemingly simple goal.  Instead, countless families are kept apart by an immigration system that is bursting with backlogs, unreasonably punitive, and often marred by bureaucratic incompetence.

Whether waiting in the endless line for a visa to become available, waiting for a ten year bar to re-entry to be lifted, or simply waiting for an immigration agency to notice their file and process their application, thousands and thousands of families remain separated this holiday season.  Perhaps even more troubling, countless other families face the threat of imminent separation due to their inability to regularize their status while present in the United States, even if married to a U.S. citizen and a parent to U.S. citizen children.

For a country that lauds “family values,” with politicians endlessly citing family priorities and an immigration system ostensibly built on a foundation of “family unity,” we have to do better, we must do better.  We must comprehensively reform our system so that it unites families, rather than keeping them and often tearing them apart.  A seemingly daunting task, fighting for togetherness is simpler than it seems.  Our system needs more family-based immigrant visa numbers.  Family members of U.S. citizens need a vehicle for regularizing their status while present in the U.S.  We need to practice forgiveness for past mistakes – rather than perpetual punishment – for those with U.S. citizen family members.

Until we accomplish family togetherness, we at Benach Ragland will continue fighting for families – families like our clients from Bangladesh, who were separated for over five years because of a misunderstanding at a consular interview and a mistake that the consul repeatedly refused to correct.  A naturalized U.S. citizen husband petitioned for his wife and young son to bring them to the United States, excited to build a life together in the country that he now called home.  Yet, the consulate refused to issue the wife her visa, alleging that she had made a misrepresentation.  This alleged misrepresentation was neither material to the application nor was it a misrepresentation at all – what she had said to the consul was true. However, the consul refused to correct the error.

The family came to us and we prepared and filed an application for a waiver of inadmissibility on her behalf, demonstrating that if she was kept apart from her U.S. citizen husband, he would continue to suffer from depression and anxiety.  He would continue living in near-poverty while trying to support two households in two different countries on the salary of a fast-food restaurant manager.  When our client’s waiver finally was granted, our perseverance and resolve were given the ultimate reward: his family is spending these holidays together in their adopted nation, their home.

We will keep fighting for families like our Ethiopian asylee-now-U.S.-citizen, who was separated from his Canadian wife and three children for over eight years because his wife was refused re-admission to the United States after a short trip abroad.  After suffering persecution in Ethiopia and fleeing in fear for his life, our client was granted asylum and safety in the U.S., where he met the woman of his dreams, a Canadian citizen, who had immigrated to Canada as a refugee from Ethiopia.  They started a family together in the United States and began building a bright future for their U.S. citizen children.  Yet, when our client traveled to Canada for a short trip, she was refused re-admission due to a prior act of fraud she had committed.  While she regretted that act before, her regret deepened when she realized that it would lead to an eight-year separation and the near collapse of her family unit.  The difficulty of obtaining a waiver for a Canadian citizen, showing extreme hardship and an inability for the family to relocate to Canada, may have turned some advocates away.

Not Benach Ragland. We saw the pain that this young family was suffering due to their separation and wanted to fight on their behalf.  We prepared and filed an application for a waiver of inadmissibility, showing the government that without his wife and children with him in the U.S., our U.S. citizen client would continue to suffer.  As a refugee who had to flee his home in fear for his life and who had finally been freed from “statelessness” by a grant of U.S. citizenship, to attempt to resettle in Canada would be psychologically and emotionally devastating.  Yet, without his family in the U.S., he also faced extreme psychological and financial hardship, trying to bond with his very young children and build upon his marriage from afar, while supporting two households on the salary of a parking garage attendant.  After over eight years of holidays apart, this family gets to spend this one together.

As we reflect on 2012 and hope for 2013, we remember these families, as well as all of those families who remain separated, longing to achieve their “togetherness” in 2013.  We at Benach Ragland hope that 2013 brings common sense immigration reform, buttressed by the pillar of family unity.  Until then, our resolution is to continue advocating for families and never, never stop fighting for togetherness.

Howdy, Trey Gowdy!

20 Dec



Congressman Trey Gowdy (R-SC) was named the Chairman of the House Subcommittee on Immigration and Border Security, a committee that will presumably have a lead role in developing any new immigration law in the coming Congress.   Incoming House Judiciary Committee Chairman Bob Goodlatte (R-VA) announced today that Rep Gowdy would be chair in the new Congress and stated “Rep. Gowdy will play a leading role on immigration reform which is a top priority of the House Judiciary Committee in the new Congress.”

Congressman Gowdy will take over for Congressman Elton Gallegly, who ran the Subcommittee in the last Congress.  Gallegly received an A- from the restrictionist NumbersUSA for support of anti-immigrant measures over the last three years, as did Gowdy.  Goodlatte, the Judiciary Chair, received an A+!  Congratulations, Bobby, now we know why you get the big chair!  Anyway, who is Mr. Gowdy and what does he have to say about immigration?  Unfortunately, it does not look good.

Let’s discuss the good stuff.  Trey Gowdy is married to a former Ms. Spartanburg and a second place runner-up to Ms. South Carolina.

Now, for the less pleasant stuff.  Trey Gowdy was elected in the Tea Party election of 2010.  A former prosecutor, Congressman Gowdy has no particular expertise in immigration law or policy.  Rep. Gowdy signed onto the “Prohibiting Backdoor Amnesty Act,” a rearguard action by immigration opponents to stop the President from implementing DACA.  The Congressman has been vocal in spreading the lie that the Obama administration has been lax in enforcing the nation’s immigration laws and aggressive in denouncing the Justice Department’s lawsuits against Arizona and other states that have enacted punitive anti-immigrant legislation.

If there is any good news, it is that many prominent anti-immigrant voices believe that the Speaker intends to bypass the Committee and Subcommittee in writing immigration legislation.  Mark Krikorian, of the reasonable-sounding-but-not-very-reasonable Center for Immigration Studies wrote in the National Review that conservatives have little confidence in Speaker Boehner to hold true to anti-immigrant principles, but are hopeful that the Speaker’s power will be diminished after the fiscal cliff negotiations: “But whoever writes the bill, it would seem that the bigger the crap sandwich Republican members have to swallow as the result of any fiscal-cliff deal, the less flexibility Boehner will likely have to force them to go along with his amnesty plans.”

Crap sandwiches, Ms. Spartanburg and Mr. Good Latte!  Merry Christmas from Washington DC.

PS- Nice tie.

Mr. President, Let de Osorio Stand!

19 Dec

As ideas for immigration reform take shape, there is one thing that the administration could do without lifting a finger that would help thousands of immigrants.  This benefit would actually require the government to refrain from doing something.  If the government decides not to appeal the decision of the U.S. Court of Appeals  for the 9th Circuit in Cuellar de Osorio v. Mayorkas, the Court’s decision would stand and thousands of young immigrants would be able to apply to adjust their status after waiting years for that opportunity.

As we discussed before, in September 2012, the U.S. Court of Appeals for the 9th Circuit held that the Board of Immigration Appeals had misinterpreted the Child Status Protection Act (CSPA) in a way that excluded thousands of young immigrants from eligibility for immediate residence.  The issue arose in cases where a child was included as a derivative of an immigrant petition filed on behalf of their parent.  Due to backlogs, that child often aged-out of eligibility by turning 21 before the parent received her green card.  In that case, many parents, subsequent to receiving their residence, filed I-130 immigrant petitions on behalf of their children.  However, those children were sent to the back of the line of the unmarried sons and daughters of permanent residents, despite having already waited for years with their parents.  The CSPA attempted to remedy this by allowing these derivative children to recapture their old priority dates when their parents or an employer later sponsored them.  In Matter of Wang, the Board unnecessarily limited the class of derivative beneficiaries who could recapture their priority dates, basically undermining the congressional fix in the CSPA.  Now the 9th Circuit has joined the 5th Circuit in rejecting Matter of Wang and the government must decide how it will react to these rulings.

So far, their reaction is not encouraging.  The government filed and the 9th Circuit granted an unopposed motion to stay the mandate, which holds up the effectiveness of the de Osorio ruling.  The mandate has been stayed until December 26, 2012.  At the same time, the government filed a request to extend its time to file a Petition for a Writ of Certiorari to the Supreme Court, which is a request that the Supreme Court hear the case.  Their petition to the Supreme Court would also be due on December 26, 2012.  However, yesterday, the government filed another request to stay the mandate until January 25, 2013 to give the government more time to consider whether to file a cert. petition to the Supreme Court.  We expect that the court will grant this motion as well.  So, by January 25, 2013, we will know whether the case is over or whether it will go on.

The administration does not need to seek review.  It is hard to see what the compelling government interest is in demanding that these aged-out beneficiaries continue to wait.  An analysis of the backlogs revealed that certain Mexican nationals might need to wait over 100 years for a visa under the Matter of Wang interpretation.  By deciding to let the de Osorio decision stand, the government will demonstrate that it is firmly on the side of keeping families together, rational  immigration policy and that it is abandoning its practice of fighting to win for winning’s sake, regardless of the social costs.  As the administration begins the process of reviewing our immigration laws, it must look closely at the litigation positions it takes and ask whether those positions are consistent with humane and compassionate immigration policy.  Appealing de Osorio is not and the administration should leave the decision alone.

Many of the same factors that drive support for DREAMers can equally be said about those who would benefit from de Osorio.  de Osorio beneficiaries applied for residence, but due to processing delays and backlogs, did nothing more than grow up.  They did what they were supposed to do.  Their families have now received residence and they have been left behind.  Despite Congressional intent to help these beneficiaries, an interpretation by the BIA left them out in the cold.   The Obama administration now has a chance to fix this and give effect to the original intent of Congress to help these immigrants and to help keep families together.

The government has just over a month to decide whether to appeal de Osorio to the Supreme Court.  What it chooses to do will say a lot about the truth behind the rhetoric.


13 Dec


It is very true that the immigration laws need a wholesale revision.  Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming.  But another change is needed and this change may the hardest of all.  It is a change of attitude within the agencies.  We have written in this space on multiple occasions about the hostility that elements within ICE have for their political leadership and the “culture of no” within CIS has been well-documented.  However, less reported is the blase indifference that many civil servants within the agency take toward the people affected by the way they go about their jobs.

Here is where I am supposed to say that the majority of the people who work for the immigration agencies are hard-working, well-intentioned people laboring under tremendous workloads and inadequate resources.  I am supposed to say that those who are indifferent to the human lives in the case before them are far outnumbered by the valiant majority who struggle against the bureaucratic odds to make a difference.  Sorry, but I can not say that.  I have to say that indifference is the default and care and compassion and vigor are the exception.  Such virtues do exist within the immigration agencies, but they are rarely on display.  Initiative and “going the extra mile” are snuffed out like weeds in those Round-Up commercials.  The overwhelming majority simply have little concern for the people affected by the way they do their jobs.  Immigration reform will be incomplete unless it addresses this problem as the power of clerks and administrative staff to harm the interests of immigrants remains immense.

Let’s focus on the Executive Office for Immigration Review (EOIR), the Immigration Court system.  Here are just a couple of things that have happened to us in the past few months that show how bureaucrats affect people’s lives by the way they do their jobs:

  • Client was detained by ICE.  ICE said that he was subject to mandatory detention.  We wanted to argue to the Judge that he was not.  We filed a request for a bond hearing, which is a matter of right, on October 24.  The case was not scheduled until November 27, five weeks after we filed.  This meant that our client had to sit in jail for an additional five weeks after we asked for his release before a judge could consider his claim that he should not be detained.  Five weeks is a long time to sit in jail when the law says you do not have to sit in jail.  The decision on when to give him a hearing was made by the Immigration Judge’s legal assistant.  No doubt she was reacting to limits on how many cases a judge can hear on any given day, but the harm of the judge hearing one more case against an individual spending several weeks in jail ought to be considered.
  • Client was detained by ICE.  When ICE detains an individual that they are placing into removal proceedings, ICE must issue a Notice to Appear (NTA) charging the individual with removability.  ICE must file the NTA with the Immigration Court and the Court must schedule the hearing.  We requested bond.  Although the rules require the Court to schedule a bond hearing for any detained individual regardless of whether an NTA has been filed, the Court’s backlog in recording the filing of NTAs causes the staff to fail to schedule a bond hearing.  A hearing was finally scheduled 30 days after the client is taken into custody and the Judge orders release.
  • Client was scheduled for hearing on her application for cancellation of removal for 10/31/2012.  That hearing was set in December 2011.  Hurricane Sandy closed the Immigration Court that day and for several days afterwards.  Expecting that the court would reschedule the case once it reopened, we wished to inform the court that we did not need much time for a hearing.  In December 2011, the Court scheduled the case for three to four hours of time.  However, since then, we negotiated with ICE counsel and agreed that all issues in the case could be resolved in a hearing of an hour or less.  On November 15, 2012, we filed a motion letting the court know that we did not need much time, so that the Court could squeeze us in wherever it had time.  We made several calls to and left messages with the court’s clerical staff, none of which were returned.  We finally spoke with the legal assistant to the judge around December 1, who stated that she had not seen the motion and she would have to look for it, but that she was not going to stop what she was doing to do so.  If she found it and the Judge ruled on it, she would give us a courtesy call.  On December 4, 2012, we got the call- hearing on December 11!  However, on December 5, the rumors started flying- the cap on grants of cancellation of removal had been met and no cancellation grants could be made until October 1, 2013.  As these were just rumors, we went ahead with the hearing, traveling to another city to be there on December 11.  At the hearing the Judge informed us that, since there were no cancellation numbers, she could not and would not hold a hearing and we could come back in October 2013.  So many small acts of initiative could have made a difference here: (1) the clerk could have addressed the motion in a timely manner and we could have gotten on the calendar before  numbers ran out; (2) when numbers ran out, the court could have called and rescheduled knowing that we would have to travel to attend the hearing at substantial cost to the client.
  • They never call back.  Never.

These are problems that are not going to be addressed by legislation.  They require a wholesale change in attitude and a lesson in courtesy. This is not simply a problem of
“poor customer service.” I hate the idea of customer service in a government agency. I think they owe us MORE than a business owes its customers. We are citizens, we are a polity and they are our government. They derive their authority from us. A business derives its income from us, which it can choose to accept or not. Citizen vis-a-vis government is entitled to more respect and deference than a Slurpee-buying sap at a Seven-Eleven.  Homer_and_Apu

These problems require an understanding that immigration detention is a serious deprivation of liberty that must be limited in duration and for the most serious matters.  A culture must grow within the Immigration Court that anything that unnecessarily prolongs detention is to be avoided and that resources will be provided to ensure that immigrants have access to prompt hearings.  Employees of the court system must be trained to recognize that they should do all they can to ensure that detained individuals have access to process.  A person is charged with murder is put in front of a magistrate judge within 24 hours who sets bail (or not).  A person charged with overstaying a visa is often detained for weeks before he gets review of his detention.  How does that system make sense?

This post was mostly cathartic.  Future posts will explore some of the legal underpinnings of the immigration detention regime.  For example, a U.S. Supreme Court decision many years ago said that removal proceedings are civil and not criminal and many criminal procedural protections are, therefore, unavailable in removal proceedings.  Given the militarization of the border and the use of detention during removal proceedings, we wonder how much of that flawed doctrine still can stand.

What?? I’ve Got Another Cap to Worry About? Cancellation Numbers Dry Up.

7 Dec

The rumors flew wildly on Wednesday.  The cap has been reached!  No, not that cap.  The H-1B cap of 65,000 visas for FY 2013, which began on October 1, 2012, was reached in June 2012.  No new H-1B visas would be available until October 2013, the beginning of FY 2014.  But anyway, this is not about the H-1B cap.  Turns out there is another cap.  There is a cap on the number of people who can be granted cancellation of removal in any given fiscal year.  That cap is 4,000 people.  Per year.  Nationwide.  Immigration Judges have the authority to cancel the removal of 4,000 nonresidents who meet the criteria for cancellation of removal.  Apparently that cap was reached on Wednesday, December 5.  Last year, it was not reached until February.    In order to qualify for cancellation of removal, an individual must:

  • have continuously resided in the U.S. for at least ten years
  • possess good moral character
  • demonstrate that her removal would cause “exceptional and extremely unusually hardship” to a U.S. citizen or permanent resident spouse, parent or child.

It’s a pretty steep burden.  Many immigration judges have interpreted the exceptional and extremely unusual hardship standard to require a very overwhelming and unconscionable level of hardship.  Cancellation cases require reams of documentation and hours of witness preparation and testimony.  The government usually fights cancellation cases and a win is a big accomplishment.  Yet, cancellation is often the only form of relief available to many individuals in removal proceedings.  Take, for example, an individual who entered the U.S. without inspection from Mexico in 1998, who married another Mexican national and had two children while in the U.S.  During his time in the U.S., he has worked and paid taxes and has no criminal record.  If that individual wound up in removal proceedings, he could apply for cancellation of removal and argue that his removal would cause exceptional and extremely unusual hardship to his U.S. citizen children.  His life, his contributions to our society and the needs of his children would be the subject of a real inquiry by an immigration judge.  Due to the numbers of people in removal proceedings, the backlogs in the immigration courts, and the practice of ICE in fighting cancellation cases tooth and nail, this individual can expect to have his cancellation application heard in several years.

Now, it seems, an applicant also has to win the calendar lottery.  Cancellation numbers become available on October 1, and, if the rumors are true, and I have little doubt that they are, they were gone by December 5. This means that no one can be granted cancellation of removal again until October 2013.  This is not to say that people who have hearings between now and October will be denied.  It simply means that they can not get decisions.  It means months of uncertainty and instability for them and their families.  It means greater backlogs in  the immigration courts as cases can not be completed.  For example, I expected to have a client granted cancellation of removal next Tuesday.  What she will get is a wink and nudge that she will get cancellation in October.  Until then, young lady, please make do and do your best to complete your education.

Some may argue that the number of cancellation grants allowed in any year indicates the number of individuals Congress believed should be able to demonstrate the level of hardship necessary to be granted cancellation of removal and that judges are being too lenient and generous in giving out cancellation. That may be true.  The Congress that created cancellation and imposed the cap, the 1996 Contract with America Congress, was not known for its generosity towards immigrants.  But Congress legislates in the abstract.  Judges deal with the real and the person sitting in their courtroom and their children and their dreams and their accomplishments and must make decisions that affect people’s lives.  The Immigration Judges of the country are sending a loud and clear message to Congress- the cancellation limit should be eliminated and, if not, raised substantially.