The changes to the Immigration Laws brought about by the Illegal Immigration reform and Immigrant Responsibility Act (“IIRAIRA”) are still creating new developments in Immigration Court, some three years after the laws were passed. This “ripple effect” is due not only to the sweeping changes brought about under IIRAIRA, but because the Executive Office for Immigration Review (“EOIR”) promulgated all of the implementing regulations at once. Now, more than ever, the immigrant finding himself in removal proceedings must be sure that his attorney has kept up to date on the new rules and court procedures.
IIRAIRA first eliminated the distinction between “exclusion proceedings” and “deportation proceedings,” creating one uniform type of hearing called a “Removal Proceeding.” While this change was designed to promote uniformity of rules in proceedings, there are many important disparities in the types of relief available, depending on how a person ends up in proceedings. Terms such as “Arriving Alien” and “Stowaway” have taken on new meanings which seriously limit a person’s entitlement to basic due process rights. Critical limitations on rights are now subtly hidden in terminology, creating traps for the unwary or unstudied.
Aside from altering the fundamental structure of hearings to determine whether an individual has the right to remain in the United States, Congress created new rules making most forms of relief vastly more difficult to obtain. Historically, people have been able to obtain relief in Immigration Court based on the length of time they could establish “continuous physical presence” in the United States. INS has interpreted the new rules very narrowly, which created legal fictions such as the “stop-time” which will not allow persons to stack up any period of “physical presence” after receiving a Notice to Appear or committing a deportable criminal offense.
Another traditional construct in establishing eligibility for relief is “extreme hardship,” or a showing that deportation would take away an individual’s reason for living or sever close family ties. The new standard is “exceptional and extremely unusual” hardship, which is nothing more than too many adjectives for the same idea: “extreme hardship.” Immigration Judges, however, groping with the notion that Congress intended for some people to be deported even if their family members would suffer extreme hardship, require stronger showings of emotional, financial, and even physical hardship in order to grant cases.
Of course, the old 212(i) waiver of grounds of inadmissibility based on misrepresentation is no longer an automatic grant for a person who has a legal immediate relative in the United States. The waiver, which comes into play when someone who entered the U.S. initially by some misrepresentation subsequently seeks adjustment of status, is only available if the adjustment of status applicant can establish “extreme hardship” to his lawful permanent resident or citizen spouse or parent. What used to be short and relatively simple hearings have taken on the complexion of the full-blown “suspension of deportation” hearing of old.
In this web of new terminology, legal fictions, and seemingly impossible standards, the best defense is knowledge of the new rules and even an understanding of how Immigration Judges are interpreting them. Attorneys prone to the use of bald-faced assertions and argument without analysis will severely diminish their clients’ chances for success in the courtroom, assuming they even show up in court. With the stiff penalties that result from an order of deportation, or even the shortened period of time allowed for “voluntary departure,” research and preparation before entering the courtroom on day one are paramount.