Immigration Law, Policy & Politics : Southern California Immigration Lawyer & Attorney : Carlos Batara Law Firm : Riverside, San Diego, Los Angeles

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. 

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Careless judicial interpretation often leads to unjustified consequences.

For immigrants, it can mean deportation.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (PDF) transformed immigration law.  One change affected the relief available to undocumented immigrants when the government seeks their removal from the United States.

Before the revision, immigrants could ask for suspension of deportation.  This required them to prove extreme hardship.  After the change, they could seek cancellation of removal, which demands a showing of exceptional and extremely unusual hardship. If immigrants fail to meet the relevant standard, they are sent back to their country of origin.

The Board of Immigration Appeals issued its understanding of the differences between the two hardship standards in Matter of Monreal.  First, the Board explained that "under the plain meaning of the words of the two hardship statutes the standard for cancellation of removal was higher than the standard for suspension of deportation."  Second, the Board noted that even though the hardship standard under cancellation of removal was heightened, it was clearly set at a level less than "unconscionable."

In my view as an immigration deportation and removal defense lawyer, the BIA was wrong on the first point.  And the Board's mistake on the first part of their analysis negated their second point.

The plain meaning of the words of the two statutes does not mandate a more restrictive evaluation of hardship.  Indeed, the only hardship more severe than an extreme hardship is an unconscionable hardship. 

The Board's careless interpretation overlooked a lesson I was taught in elementary school: the difference between adjectives and adverbs.

To understand hardship in the immigration context, four adjectives are important: exceptional, unusual, extreme, and unconscionable. According to well-respected dictionaries like Webster's, Oxford, and Cambridge, a comparative list of commonly accepted meanings follow:

• Exceptional – unusual, extraordinary, irregular, peculiar, rare, strange, unnatural, anomalous, abnormal
• Unusual – uncommon, extraordinary, exceptional, rare, strange, remarkable, singular, curious, queer, odd
• Extreme – utmost, greatest, rarest, highest, outermost, endmost, uttermost, farthest, furthest, remotest, ultimate
• Unconscionable – immoral, barbarous, preposterous, uncivilized, unethical, unjust, wicked conscienceless, unscrupulous

Based on this review, a spectrum of hardship emerges.

Three significant points can be gleaned from this spectrum:

1. The terms "exceptional" and "unusual" are equivalent. Both adjectives connote a situation which is extraordinary or rare. Both describe the same degree of severity.  As synonyms, their meanings overlap each other 100%.
2. The terms "exceptional" and "unusual" apply to a hardship which is less harsh than an "extreme" hardship. The terms "exceptional" and "unusual" address a hardship which is extraordinary or rare. "Extreme" pertains to a situation which is the ultimate, rarest, or remotest.
3. The circumstances described by the term "extremely unusual" are less severe than those described by the term "extreme." An extremely unusual hardship is more severe than an unusual hardship. But it is less severe than an extreme hardship. In the phrase "extremely unusual," the word extremely is an adverb. The adjective is still unusual. By definition, there is a qualitative difference between unusual hardship (even if "extremely unusual") and extreme hardship (even if "ordinarily extreme").

Based on the words used by Congress, the BIA flunked an elementary school grammar test.

The effect of their error is not simply grammatical.  The BIA's blunder created a false barrier to relief from deportation which many worthy immigrants cannot surmount.

Immigration judges, following the BIA's mistaken precedent, order the removal of immigrants who can show extreme hardship - because extreme hardship is not deemed severe enough under the new standard. 

Due to the BIA's careless interpretation, what immigration judges want is unconscionable.

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