"The year ended not with a bang, but with a whimper... I spent three hours on the 30th of December in immigration court (San Francisco) and watched a judge with a reputation for it, order the deportation of three separate respondents... This judge has an 87% rate of denials, and although I asked for a 10-day extension, he denied that too... He did allow me to speak up in the case, as a member of the community helping the respondent, and speak up I did, vigorously, but although he thanked me, in the end he was unwilling to grant this man any favors...
The man who was ordered to be deported, who has been in the US since 1995, was gainfully employed prior to his arrest, and has two US born children. After more than a year in prison waiting to be tried, he had finally plead guilty to a DUI misdemeanor, despite the fact that at the time of his arrest he was sleeping in a parked car… the police had to wake him up to take him out of the parked car… The police officer that had arrested him was out on disability, and in fact never showed up to speak at the trial, so technically, the public defender should have been able to file a motion to dismiss… but this was an immigrant.
His “Honor” found that he did not meet the requisite good moral character and also did not meet the requirements of “exceptional and extremely unusual hardship" for purposes of qualifying for cancellation of removal under the 1996 immigration law. The 1996 law changed removal proceedings for what was formerly known as deportation proceedings, and "cancellation of removal" became the new name for "suspension of deportation." Cancellation of removal can provide relief from deportation for those persons who can prove a number of years of continuous physical presence in the U.S., good moral character, and hardship to family members. Prior to the 1996 law, the physical presence standard was 7 years, which the new law increased to 10. The ‘hardship’ requirement went from "extreme hardship" to "exceptional and extremely unusual hardship."
The legislative history of the 1996 indicates that "exceptional and extremely unusual hardship" means that a person undergoing removal proceedings must provide evidence of hardship to his qualifying spouse, parent or child which is "substantially beyond that which would be expected to result from the alien's deportation." Even under the old law, it was very difficult to prove simple "extreme hardship," although deportation for most people is the equivalent of cruel and unusual punishment…
In 1952 Congress discussed the concept of "exceptional and extremely unusual hardship" and stated that “[T]o justify the suspension of deportation the hardship must not only be unusual but must be exceptionally and extremely unusual. The bill accordingly establishes a policy that the administrative remedy should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable.”
It is useful to look at legislative history, because the discussion while a bill is being considered, as gathered in congressional records, shows us what legislators were thinking about and what they meant to do. The discussion shown above equates exceptionally and extremely unusual hardship with unconscionable treatment.
The Board of Immigration Appeals later rejected the 1952 standard in Matter of Monreal (2001). The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) as previously indicated made it even more difficult to obtain relief from deportation, and hardship, which prior to IIRAIRA could be hardship to the alien applicant, now referred only to members of the applicant’s family, such as a spouse or children. But the new law included no definition of what would constitute “exceptional and extremely unusual hardship." Accordingly, that earlier legislative discussion continued to apply.
Judges have talked about IIRAIRA changing the parameters of the definition of “exceptional and extremely unusual hardship" but that is a fiction. There are over forty years of case law that show that the IIRAIRA hardship standard is unconscionable hardship. We continue to destroy families and creating a whole class of people who are practically orphans, widowers and widows who lose a father or mother or spouse because humanitarian leniency has almost disappeared.
We are deporting at least 1,000 people per day, and because one of the last acts of a Bush appointee before he left office was to state that the right to counsel does not apply to non-citizens, these men and women are held without legal representation unless they have thousands of dollars to pay for help. As I stated recently at an immigration town hall, almost no one wants to emigrate out of their country of birth, but our predatory and imperialist economic policies make life impossible for most people south ‘of the border.’
When I went up to the lockup to speak to the person I was helping, and to have him sign a notice of appeal, there was a woman in line with two small babies and a suitcase, weeping unabashedly, while the father of her babies was getting ready to get on that plane back to his country...
Until next time, keep protesting.
P.S. HRC has promised she will not deport any children, although she previously stated the opposite. Some of the children who have been deported have been killed upon arrival at home.
It is noteworthy to remember that we turned back a ship with Jews fleeing Hitler, and that many of them were presumably later killed when they reached Germany. In other words, our immigration system and policies have not worked, in general. "
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