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.