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Knowing the Path v. Walking the Path: Getting the Votes for Comprehensive Immigration Reform

One can easily determine by simply following the news where the weaknesses in the existing immigration-law framework exist, but addressing those weaknesses has proven far easier said than done. Less than a month into the current fiscal year and already the cap for Cancellation of Removal & Adjustment of Status for Certain Nonpermanent Residents ("Non-LPR Cancellation") has been met. The current fiscal year runs from October 1, 2013 to September 30, 2014. The United States Congress has allowed for only 4,000 of such applications to be granted nationwide per fiscal year. While many people are aware of the H-1B temporary-worker cap and how quickly it is met each fiscal year, far fewer are probably aware of the Non-LPR Cancellation cap or even of what Non-LPR Cancellation is. Eligibility for Non-LPR Cancellation typically requires that a person be residing continuously in the United States for at least ten years prior to having been placed in removal proceedings, that the person have had good moral character during that period and up until the grant of the Non-LPR Cancellation application, and that the person have a qualifying United-States-citizen or Green-Card-holding relative, such as a spouse, child, or parent, who would suffer exceptional and extremely unusual hardship were the Non-LPR Cancellation application not granted.

For many undocumented individuals who entered the United States without inspection and who do not qualify for any previously passed amnesty provision, Non-LPR Cancellation appears to be the only way to resolve their immigration matters. Moreover, such individuals are only eligible for Non-LPR Cancellation if they can prove the requisite hardship to the qualifying United-States-citizen or Green-Card-holding relative, i.e., the very people the United States Congress was trying to protect when it passed Non-LPR Cancellation. In fiscal years past when the cap was met, Immigration Courts would continue the individual-merits hearings for Non-LPR-Cancellation applicants until the beginning of the following fiscal year. However, with more pressure on Immigration Courts to resolve removal cases more quickly, immigration judges have shifted course and instead have conducted the hearings on the applications sooner but have withheld a final decision on the Non-LPR-Cancellation applications until the beginning of the following fiscal year. The result, as can be seen in the first month of the current fiscal year, is the cap being met in a matter of weeks because of issuance of approvals for applications that were heard during the last fiscal year.

I have written previously about how the political environment is ripe for both political parties in the United States Congress to try to pass, and consequently to try to take credit for, Comprehensive Immigration Reform ("CIR"). As David Brook, Andrea Mitchell, David Gregory, and E.J. Dionne reference below, it is in President Barack Obama's and the Republicans' interests both substantively and politically to push right now for CIR.

In the meanwhile, it appears for now that the federal courts, as opposed to the United States Congress, will continue to try to clarify on a large scale, rather than on an individual scale, which people are of the type the United States wants to help remain in the country and which are not. The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which hears petitions for review from decisions of the Board of Immigration Appeals regarding removal proceedings that have taken place in states such as California, Nevada, Arizona, and Washington, held yesterday that molestation of a fourteen-year-old or fifteen-year-old child by someone at least ten years older than the child categorically is a crime of violence and therefore an aggravated felony barring the perpetrator, if not a United-States citizen, from almost all forms of immigration-related relief, including Non-LPR Cancellation. The decision, Rodriguez-Castellon v. Holder, leaves no room for maneuvering by someone convicted of such an offense to avoid the dreaded aggravated-felon bar in immigration law, leaving such a person to turn to extraordinary and relatively unknown forms of immigration-related relief to resolve his/her immigration matter. It appears that the Ninth Circuit both knows the path and is walking the path. Whether the United States Congress will do the same is yet to be seen, but any more waiting only makes it less likely.