Suspension of Deportation: Tighter Standards for Canceling Removal

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Suspension of Deportation: Tighter Standards
for Canceling Removal
Larry M. Eig
Legislative Attorney
American Law Division
Background. Since 1940, Congress has allowed the Attorney General to grant
lawful status to certain aliens who, though not lawfully admitted, have established deep
roots here. As first enacted, the Attorney General could suspend the deportation of aliens
who could show 5 years of good moral character and prospective "serious economic
detriment" to lawfully present members of their immediate families. However, several
classes of aliens were ineligible, and Congress retained power to overturn relief by
Over time, Congress has changed the basic eligibility rules for suspension of
deportation, the classes of ineligible aliens, and the role of Congress. As enacted, the
Immigration and Nationality Act of 1952 (INA) expanded potential eligibility by allowing
relief premised on hardship to the prospective deportee and by shortening the list of
ineligible groups, but relief could only be granted if both the Attorney General and
Congress acted. The lists of ineligible groups for suspension under the INA, which still
is our primary immigration statute, subsequently were amended further. Also, the
Supreme Court has precluded congressional participation in individual suspension cases.
New name, new standards. Congress amended suspension of deportation under the
INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). Before IIRIRA, relief could be granted to an alien who had been physically
present for 7 years, who had had good moral character, and whose deportation would
result in extreme hardship to the alien or to the alien's citizen or permanent resident
spouse, child, or parent. Stricter standards -- 10 years' presence and "exceptional and
extremely unusual hardship" -- existed for aliens who were deportable on certain criminal,
fraud, or security grounds, while eased standards existed for certain abused spouses and
IIRIRA tightened standards for suspension of deportation and made it part of a new
remedy called "cancellation of removal." The new "suspension" remedy permits the
Attorney General to cancel the removal of an alien who has been physically present at least
10 years, has had good moral character, has not been convicted of a crime that makes the
alien removable, and whose removal would result in exceptional and extremely unusual

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hardship to the alien's permanent resident or citizen spouse, parent, or child. Thus,
IIRIRA (1) generally adopts the stricter 10-year presence and "exceptional and extremely
unusual hardship" standards (except for abused aliens), (2) eliminates prospective hardship
to the alien as a basis for relief, and (3) disqualifies most criminal aliens (previously,
criminal conviction was relevant only as it bore on "good moral character").
Generally, the new IIRIRA rules cover removal cases initiated on or after April 1,
1997. However, two provisions (discussed below) have clouded potential relief for certain
aliens, like the many Central Americans who came here during the civil strife of the 1980s,
whose deportation cases were initiated long ago but who have been allowed to remain and
work for extended periods while their cases are pending. The Attorney General has acted
to foreclose application of these restrictive provisions in cases started before April 1 by
vacating a decision by the Board of Immigration Appeals. Meanwhile, a bill introduced
at the Administration's request, S. 1076, would protect certain Central Americans and
others from the IIRIRA rules, as would a more limited House bill, H.R. 2302.
Numerical limits. IIRIRA imposes three separate limits of 4,000 per fiscal year on
relief. A 4,000 per year limit is placed on adjustments to permanent resident status of
aliens granted cancellation of removal. Another 4,000 per year limit is placed on combined
"cancellations and adjustments" under IIRIRA and "suspensions and adjustments" under
cases continued under prior law. A third 4,000 per year limit is placed on "suspensions
and adjustments" under prior law.
Both the subject of these limitations and their implementation have been problematic.
Some argue that the latter two limitations are, like the first, essentially limits on
adjustments only. They interpret "cancel and adjust" and "suspend and adjust" as both
comprised of two distinct acts and argue that it is permissible to "cancel" or "suspend" the
expulsion of more than 4,000 aliens in one year so long as no more than 4,000 of them are
adjusted in the same year. Such an interpretation bypasses the apparent arbitrariness of
denying relief or delaying consideration to those aliens with meritorious applications that
come before immigration judges after the yearly cancellation/suspension limit has been
reached. However, such an interpretation also raises issues as to the status of those whose
expulsion has been suspended or canceled but who have not yet been able to adjust. It
also may be seen as a vehicle for bypassing any meaningful limit on suspensions or
adjustments. If the limit on "suspension and adjustment" means only that both acts may
not occur in the same year for more than 4,000 aliens, what would prevent suspending
20,000 deportations during one year and allowing those 20,000 to adjust in the subsequent
Retroactive application of tolling provisions. IIRIRA changed the practice of
allowing time spent here after the initiation of deportation proceedings to be counted
toward the physical presence requirements. Under IIRIRA, "presence" ends when an alien
(1) commits certain criminal or terrorist acts or (2) is served with a "notice to appear," a
document established by IIRIRA for the initiation of removal proceedings. IIRIRA states
that the new termination rules cover "notices to appear" before IIRIRA's enactment. Legal
decisions have disagreed as to whether this means that the new rules apply to suspension
of deportation in cases that were initiated by "orders to show cause" under pre-IIRIRA
practice (See CRS Rept. 97-702, Suspension of Deportation: Effect of § 309(c)(5) of
IIRIRA on Pending Deportation Cases).