Anyone who has had a family member wrongfully deported knows that deportation usually has serious consequences not only for the person being deported but also for that person's family and friends. Deportation is a harsh remedy in most cases. And with a change in the standard for deportation, due process rights of immigrants have taken a substantial set back. Today, we will discuss how the Illegal Immigration and Immigration Responsibility Act of 1996 ("IIRAIRA") has significantly changed immigration law, with one substantial change.
Before the IIRAIRA, immigrants facing deportation could ask for a suspension of deportation. Suspension of deportation required an immigrant applicant to prove that being deported would result in extreme hardship to him or her (the person being deported). That meant that the focus of hardship was placed on the immigrant.
However, with the IIRAIRA reform, "suspension of deportation" changed to cancellation of deportation. The name change was not the only difference, though. IIRAIRA reform erased the requirement of showing merely "hardship" to the person facing deportation.
Now, a person facing deportation must show that (1) being deported will result in exceptional and extremely unusual hardship and that (2) being deported will result in exceptional and extremely unusual hardship to the deported person's spouse, parent, or child. That means the focus was taken off of the hardship that the potentially deported person would suffer and placed on the hardship that, basically, family members would suffer.
Specifically the BIA has stated: "in establishing eligibility for cancellation of removal [new standard of hardship] only hardship to qualifying relatives, not the applicant [person being deported] himself or herself, may be considered, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to the qualifying relative."
Significantly, each of the terms, spouse, child, and parent also has a specific definition in the IIRAIRA. That means, and as we have discussed on this blog, the IIRAIRA may define spouse, child, and parent in a manner completely different than what you feel or think.
Regarding the new "hardship" standard, The Board of Immigration Appeals ("BIA") clarified its understanding of the difference between showing "hardship" and showing "exceptional and extremely unusual hardship" in an appeal named Matter of Monreal.pdf. The BIA stated that the new standard for hardship (cancellation of removal) is higher than the old standard (suspension of removal). The BIA also said that although the new standard is higher (tougher) it is not unconscionable (outrageous).
Just because something in not unconscionable (outrageous) does not mean it's fair. The new standard is even more reason why you need an effective attorney on your side. Although some of the law and approaches used by lawyers regarding the old standard for "hardship" still may apply, your attorney must understand the IIRAIRA, new law, and new approaches in order to effectively argue your case.
Contact Williams Oinonen LLC today so we can provide you with effective counsel regarding your deportation issues at 404-654-0288.