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By Nora Milner
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A day at the Immigration Court
By Nora Milner, Esq.
MARIA paces the floor and glances at her watch for the sixth time in the last 15 minutes. She is nervous and she looks anxiously at her sister and friend, who came to give her moral support. Today, after all the waiting, after all these years in the United States, Maria will finally meet the person who holds her future, and that of her two small children, in his hands.
Maria was fidgety, but that's understandable. The title under the man's name strikes fear on every immigrant: Immigration Judge.
Today is the day that Maria has both dreaded and prayed for; today she will tell her story to a man she has never met, a man in a black robe. The man she hopes would grant her the one precious gift that she so desires: lawful permanent residency.
Maria, whose real name we are not divulging for privacy reasons, is a single mother who has supported her two daughters by herself, with no financial help from their fathers.
Even though one of her daughters is a U.S. citizen, she has not been able to get the father to help her financially. So Maria has worked three jobs, still finding time to volunteer at her daughters' school and take them to all of their sports activities. She has never taken any form of welfare and has indeed been a good person, never having any criminal problems.
The program that Maria is using for legalization is called an application for “Cancellation of Removal,” so named because she is requesting that the Immigration Judge cancel her removal from the United States . This program is the new version of what was previously called “Suspension of Deportation,” which was terminated on April 1, 1997 .
The current program of Cancellation of Removal is much stricter than its predecessor: Suspension. It is a remedy created by which certain aliens can apply via the Immigration Court to obtain permanent residency. The requirements are:
- 10 years continuous residency in the United States (no absence from the U.S. may be for over 90 days on any one departure and no more than 180 days total);
- legal relationship with a U.S. or Lawful Permanent Resident parent, child, or spouse;
- no criminal record (nothing which would cause the person to be found lacking good moral character); and
- evidence that if the alien were deported it would cause “exceptional and extremely unusual” hardship to the alien's spouse, parent or child, who is a citizen of the United States or a Lawful Permanent Resident.
Each of these four requirements has special legal requirements to qualify, however, the fourth, that is, hardship, has proven to be the most troubling to aliens who apply under this new program. The reason is that the hardship has been defined differently by courts that have looked at the level of proof required and the Immigration Court has followed both decisions from the Board of Immigration Appeals and the Circuit Courts in which they sit.
In addition, the Immigration Service has generally taken a hard line on what is necessary to prove that hardship, saying that mere economic deprivation is not enough nor is separation from family and friends here.
Thus, the hardship must rise to a level more severe than that suffered by other aliens; for example, medical, social, educational and/or psychological issues are essential to establish. For example, if a U.S. citizen or lawful permanent resident child has a severe learning problem for which she is being treated, that could prove sufficiently hard to that child if she were either left behind upon her mother's removal or taken to a third world country which does not have the type of facilities so essential for that child's continuing care.
Simply put, the hardship to be proven is not that hardship suffered by the alien, but that suffered by the child (or spouse or parent). Therefore, if the alien has been in this country for 20 years but has no legal relationship, he or she could not use this program, for the requirement of a legal relative could not be met. In addition, the alien may not show hardship to him or herself no matter how severe. This program is a narrow one in which many will apply but few will actually qualify. So it is very important to find a qualified immigration attorney who can assure that the alien has all of the requirements satisfied and will dedicate all of the time and work necessary to prove each and every fact required by the court.
And Maria? Oh yes, today was indeed her day. She satisfied all of the requirements and was granted lawful permanent residency by the Immigration Judge! She can now open the door to immigrate her alien daughter and look forward to living the true “American Dream.” She's even planning a trip to Disneyland!
Readers may get in touch with columnist Nora Milner at Milner & Markee, LLP, 16780 W. Bernardo Dr. #320, The Bluffs, San Diego, CA 92127; tel. (858) 451-6269.
