Suspension of Deportation May Be Available Once Again

On November 30, 2000, the INS and the Executive Office for Immigration Review (“Immigration Court”) published a proposed rule which would permit certain individuals in deportation proceedings to apply for Suspension of Deportation, instead of its more stringent replacement, Cancellation of Removal for Non-Permanent Residents. Suspension of Deportation was eliminated in 1997 by the Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”). In addition to the elimination of Suspension of Deportation, the IIRIRA introduced, among other things, a “stop-time” rule which terminates the accumulation of any required continuous physical presence or residence upon the service of a Notice to Appear (“NTA”) in immigration proceedings, or the commission of a criminal offense that would render one inadmissible to the United States.

The proposed rule would allow attorneys to recommend and/or immigration judges to terminate removal (“deportation”) proceedings. Upon termination, the INS would “immediately” re-serve the individual with a new NTA. In so doing, the individual would then be allowed to apply for the more liberal Suspension of Deportation because the necessary physical presence period would not have been terminated by service of the NTA. This process, created to address the significant disadvantages of the stop-time rule and the exacting standards of Cancellation of Removal for Certain Non-Permanent Residence will be known as “re-papering.”

Re-papering eligibility, according to the proposed rule, requires that one be in removal proceedings at the time of their application, i.e. not initially raised by a Motion to Reopen old proceedings, and that one must be otherwise eligible for the desired relief. In order to be eligible for Suspension of Deportation, one must demonstrate that they have been physically present in the United States for a continuous period of not less than 7 years and is a person of good moral character. Many of you who have been here for the required period of time, lost the opportunity to apply for Suspension of Deportation because your Order to Show Cause (“OSC”) or NTA was served prior to the your having been here for 7 years. As described above, re-papering would overcome this otherwise insurmountable obstacle to lawful permanent residence.

Most importantly, Suspension of Deportation mandates that one must demonstrate that his or her deportation would result in extreme hardship to the alien or to his lawful permanent resident or United States citizen spouse, parent(s) or child(ren). In comparison to the remedy of Cancellation of Removal for Certain Non-Permanent Residents, an individual applying for that relief must demonstrate that deportation would result in exceptional and extremely unusual hardship to the individual’s permanent resident or citizen spouse, parent(s) or child(ren).

Cancellation of Removal specifically excludes hardship to the individual as a permissible consideration and imposes a more exacting burden upon an individual concerning the standard of hardship to be proven. Curiously, while case law and regulation is well documented as to what constitutes hardship in the Suspension context, case law and regulation is conspicuously absent with regard to what constitutes exceptional and extremely unusual hardship. To date, the Board of Immigration Appeals has not set precedent in the Cancellation of Removal context.

If the proposed rule on re-papering is adopted, individuals who are unfortunate enough to be in deportation proceedings, but who are otherwise eligible for the remedy of Suspension of Deportation, will enjoy the benefits of a well-defined statute and consequently, an articulated body of case law. As a result, the effective presentation of your matter may result in the creation of your lawful permanent residence in the United States.