Inside the release of Cancellation of Removal Numbers - A “Lawyer’s Christmas”
“My favorite time of the year professionally is the release of cancellation of removal numbers…”
Here is a picture of me from this month, on the day that we received approvals for cases completed between September 2019 and January 2020. As you can see from the smile on my face, it’s my "lawyer's Christmas." When I call each client to share that their case has been granted, it takes a minute or two for them to process that the day they have waited and struggled to reach has finally arrived. Overjoyed and in disbelief, their reactions range from happiness and celebration in the house to quiet tears. I give them space and time to process this information, and then the conversation turns to reflection - how hard it was to get to that day, how many years we worked toward that goal, and ultimately, profound gratitude. Gratitude for a law that allows cancellation of removal, and for the Judge's judicial mercy and discretion to apply it to them. At the end of my call, I remind them to go out for dinner or gather as a family to appreciate and celebrate this moment, and to take a picture to keep for future memory. Great moments like this are few and far between.
Cancellation of removal, often misleadingly referenced as the "10-year law," requires a showing of the highest-burden of hardship under immigration law. To win, the Immigration Judge must decide that the applicant has a child, spouse, or parent with special or medical needs, or a totality of circumstances that would cause their child, parent, or spouse to suffer "exceptional and extremely unusual" hardship by their deportation to a foreign country. Only the Immigration Judge has jurisdiction to decide this form of relief, and it is severely limited.
I describe this "exceptional and extremely unusual" standard in this way - every applicant must have a U.S. citizen or resident child, spouse, or parent and have been in the U.S. for more than 10 years. That’s basic. But to win, the hardship of your removal must be exceptional and extremely unusual when compared to what other families would suffer in their deportation. So, what would another family with three children who have been here for 15 years suffer? Your hardship factors must be greater than theirs. The immigration law accepts that people are deported if they are undocumented. Families will need to relocate. Economic suffering, loss of opportunity, or crime in the home country is not enough – if you are a hardworking family with healthy children and a spouse, the Judge may find that the hardship is not exceptional and extremely unusual enough.
Statistics matter and inform that this is a hard application to win. Between 2017 and 2019, EOIR Immigration Judges reviewed a total of 60,588 applications for cancellation of removal (20,196 per year), and only 4,000 cases can be granted per year. Now, consider that there are more than 600 Immigration Judges in 68 courts throughout the country. If we apply strict math, a cap would limit the judges to 6-7 cancellation cases per month. Judges are not limited by the cap; they can and do approve many more than the cap each year, but that cap does loom and reminds the Judges that the sense of Congress was to limit this relief and reserve it only for the few cases that meet the stringent standard of hardship.
If you are applying for cancellation of removal, please keep these two suggestions in mind: 1) Judges expect the hardship to be unquestionably high, and 2) they expect the case to be well-presented and documented. You simply cannot win on words alone. Most of our cancellation of removal cases are won on paper, through the presentation of documents and country conditions, so it is crucial to find an attorney who will work with diligence and care to lay out the factors and evidence that support the decision you seek from the Judge and U.S. government.
Written by: Mary De Castro Foden
Juris Doctor, University of Connecticut. Admitted to the bars of Connecticut and New York, U.S. District Court of Connecticut, Second Circuit Court of Appeals, and the Supreme Court of the United States.