Suspension Of Deportation
Modified By The New Law
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Presently, persons under deportation proceedings may achieve permanent residence through
suspension of deportation if they (1) are continuously present in the U.S. for a minimum of
seven years, (2) are persons of good moral character and (3) their deportation would result in
"extreme hardship" on themselves and their parents, spouses and children who are U.S. citizens
or permanent residents. Under the new immigration law recently signed by President Clinton,
suspension of deportation will be much more difficult to obtain. Most provisions of the new
law go into effect on April 1, 1997.
However, some sections of the new law became effective immediately upon enactment (September 30,
1996). Among the sections which became effective upon enactment is one which limits the
number of persons who may be granted permanent residence through adjustment of status to 4,000
in any fiscal year. Formerly, there was no such numerical limitation.
Continuous Presence
The new law makes the following significant changes in the continuous presence requirement:
- The period of time the person is required to be continuously present in the U.S. is
increased from seven to ten years.
- Presently, a person undergoing a deportation hearing may continue to accrue time toward
what is necessary to apply for suspension of deportation. Under the new law, the period
of continuous presence will end when the person receives a notice to appear at his deportation
hearing. It is unclear when this provision of the new law becomes effective.
- Under current law, any period of time spent outside of the U.S. which is "brief, casual
and innocent" will not break the continuity of the person's physical presence. The new law
will limit individual absences to 90 days and total absences to no more than 180 days.
Hardship
The new law also makes the following significant changes in the hardship requirement:
- The standard of hardship will be raised from "extreme" hardship to "exceptional and
extremely unusual hardship". Only time will tell how individual judges will interpret this
enhanced hardship requirement.
- Current law permits a showing of hardship to the individual undergoing deportation
proceedings. Under the new law, only hardship to qualifying relatives will be relevant.
Therefore, unless the applicant has qualifying relatives, he is ineligible for suspension
of deportation.
Cancellation of Removal
Beginning on April 1, 1997, both deportation and exclusion proceedings will be replaced by
what will be called "removal" proceedings. This is an important development because under
current law persons in exclusion proceedings have few of the rights which are accorded to
those in deportation proceedings. For example, a person in exclusion proceedings has no
right to bail, to adjustment of status, to voluntary departure, or to suspension of
deportation.
Under the new law, all persons in removal proceedings who meet the legal requirements will
be able to apply for suspension of deportation, or as it will be renamed after April 1, 1997,
"cancellation of removal".
Cancellation of removal is a discretionary form for relief. This means that even if the
applicant meets all the legal requirements, an immigration judge, at his discretion may
approve or deny the application. A person whose application is denied in the discretion of
the judge may appeal to the Board of Immigration Appeals. However, unlike present law,
the new law does not allow denials of discretionary applications to be challenged in the
Federal Courts.
Special Classes of Persons
Following the former law, the new law bars certain classes of persons from applying for
cancellation of removal while relaxing the requirements for other categories of immigrants.
For example, international medical graduates who are subject to the two-year home residency
requirement are ineligible to apply for cancellation of removal. However, persons who
enlisted in the armed forces while in the U.S. who have served a mimimum of two years of
honorable service may apply for cancellation of removal despite their lack of ten years
continuous presence.
A Few Who Will Benefit
Despite the much higher standards required to qualify for permanent residence through
cancellation of removal as opposed to suspension of deportation, for some people, the
change in law will actually be beneficial. Those who will benefit are persons
"paroled" into the U.S. and persons who depart the U.S. and return using an "advanced parole".
A parole is a legal fiction used by the INS to allow a person to come into the U.S. despite
the lack of a proper visa or where their admissibility is questioned.
Many thousands of persons apply for various types of immigration benefits each year: adjustment
of status, asylum, amnesty, temporary protected status, etc. If these persons need to travel
abroad, they are required to obtain an advanced parole from INS in order to be allowed to
return to the U.S. However, few of these people realize that in returning to the U.S. on an
advanced parole, they are forfeiting their rights to a deportation hearing, and to possible
relief from deportation. Instead, they only have a right to an exclusion hearing. Under the
new law, such persons will be entitled to removal proceedings and, if they qualify, may apply
for cancellation of removal.
Punishing Those Who Play By the Rules
To apply for suspension of deportation or cancellation of removal, a person must first be
placed under deportation or removal proceedings. Due to this requirement, thousands of persons
with meritorious applications turned themselves into the INS requesting that they be placed
under such proceedings. Now that the rules are changing, many of these persons may now be forced
to depart the U.S.
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