Despite rumors for about a month that Joe Biden was going to crack down on illegal aliens, the opposite has been dropped in the press—another amnesty is in the works. This time an obscure and much abused section of immigration law, cancellation of removal (COR), sometimes referred to as withholding of removal, will be somehow used to reward illegal aliens zerg rushing the border.
COR provides a path to Lawful Permanent Residence (LPR), a green card, for an alien who is deportable, provided that a U.S. citizen or LPR spouse, child, or parent would experience “… exceptional and extremely unusual hardship …” if the alien would be deported.
This provision of law was included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that amended the Immigration and Nationality Act (INA). IIRIRA superseded a similar provision of law in an earlier version of the INA called suspension of deportation (SOD), which provided for granting LPR to aliens in deportation proceedings based on a standard of “extreme hardship” to a U.S. citizen or LPR spouse, child, or parent.
Note the change in the standard: from extreme hardship to exceptional and extremely unusual hardship. The change in the standard was imposed by Congress because the legacy Immigration and Naturalization Service (INS) was approving almost all claims, however dubious, and Congress wanted fewer illegal aliens gaming the system, so the standard for approval of an application for COR was increased.
But, as usually, the legacy INS, then the successor agency, U.S. Citizenship and Immigration Services (USCIS), after the creation of the Department of Homeland Security (DHS), continued to ignore the statutory language and standard by continuing to approve almost all applications, essentially evading the prohibitions on such adjustments also in IIRIRA, with the three year, ten year, and lifetime bars to such adjustments. Such sabotage of the law is routine for USCIS.
In fact, the new standard is basically impossible to meet provided the Immigration Judge in the Executive Office for Immigration Review (EOIR) or USCIS officer follows the law. The problem is that in our modern society, the citizen or LPR spouses, children, or parents of an illegal alien are independent of any financial contribution by an illegal alien. In general, SOD and COR were premised on the idea that there were illegal aliens working, illegally by the way, so hard that they were providing for their dependents, not just food and housing, but the medical care for someone dependent on the income from the illegal alien.
As most know, few illegal aliens earn enough money to provide for spouses, children, and/or parents. Most illegal alien families are on welfare of some sort, especially for the situations the law was designed for: spouses who could not work because of some expensive and debilitating medical condition, children with an expensive medical condition or disability that required constant medical care, or parents in similar conditions. In our modern world, such citizen or LPR spouses, children, and parents are eligible for the whole panoply of welfare: free housing, free food, and free medical care.
The most common examples of such claims are a male illegal alien with a dependent spouse who is too ill to work or a child with some extreme disease or disability. In such cases the male illegal alien is the only earner in the household. But that earning is basically on top of what welfare the U.S. citizen or LPR spouse, children, or parent is receiving. The reality is that the income from an illegal does not in any way provide for housing, food, or medical care, which would be the basis for a claim of “… exceptional and extremely unusual hardship …” If there were no welfare state available for U.S. citizen and LPR family members, then an income from a single uneducated and low-skill illegal alien would be their only income and, if deported, they would face extreme hardship. But the medically indigent are fed, housed, and provided medical care by the welfare state. In effect, the modern welfare state negates the need for COR; a low-wage income earner is essentially superfluous.
Like the Obama administration did in 2012 with the launch of the Deferred Action for Childhood Arrivals program, Biden administration officials are also examining whether there’s an action they could take for a different group of undocumented people who have long resided in the United States, according to the three people familiar with the administration’s planning. One idea that has been floated among administration officials is opening access to the cancellation of removal program for people who have lived in the U.S. for over 10 years and have citizen or resident relatives who would “suffer” if they were deported. If specific requirements are met and an immigration judge approves cancellation of removal, a migrant is able to obtain a green card.
Biden Was Planning Executive Action On The Border. Now He’s Gone Silent, by Myah Ward, Politico, March 25, 2024
There is also a glaring legal problem, though, with this proposed amnesty—it is limited to those already in removal proceedings.
I. Aliens Eligible for Cancellation of Removal: You may be eligible to have your removal cancelled under section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish in a hearing before an Immigration Judge that:
Application for Cancellation of Removal and Adjustment, Review of Status for Certain Nonpermanent Residents Form EOIR-42B, Department of Justice, February 2022
A. 1. Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) years or more, and you have been a person of good moral character as defined in section 101(f) of the INA during such period;
The important aspect of this relief available to illegal aliens is that they must already be in removal proceedings before the EOIR, which means the illegal alien must already have been arrested and served with a DHS Form I-862, Notice To Appear (NTA), the charging document in immigration proceedings. Also of import is that the illegal alien must have been in the U.S. for 10 years before the NTA was served. There are just few illegal aliens who meet this; most who might qualify have failed to appear previously, have outstanding orders of removal, or do not have the requisite 10 years of previous continuous physical presence in the United States.
This means that the Biden Regime will have to use some illegal machinations to make any significant number of illegal aliens “eligible” for this Administrative Amnesty. Just as USCIS and the EOIR have been ignoring the statutorily required “… exceptional and extremely unusual hardship …,” what else will be ignored?
The requirement for the alien to be in removal proceedings? The requirement for 10 years continuous physical presence? Or even the prohibitions on aliens with certain criminal convictions? All of the above? Given the Biden Regime’s illegal actions on immigration, the parts of the statute they ignore could only be limited by the imagination of the unindicted visa fraudster DHS Secretary Alejandro Mayorkas. And he will imagine away all the legal requirements in order to replace the White Historic American Nation.
