As a former member of the Board of Immigration Appeals, who decided cases over a seven year period between 1995 and 2002, I was troubled by the contention in reporter Eric Connor's October 13 article (to which ILW.COM provided a link), that the Tolani family deportation can or will "break the mold."
As I explained to Mr. Connor, in 1996, Congress narrowed the category of eligible individuals and heightened the standard to be met by undocumented persons seeking to legalize their status on the basis of the hardship of deportation or removal. Simultaneously, it eliminated federal court jurisdiction to review the discretionary decisions that agency personnel would make under that standard. As a result, every day, hundreds of hardworking one and two parent families with equally compelling stories and equally well-meaning, gifted children who have grown up in the U.S., face the uncertainty of removal, the loss of exceptional educational and business opportunities, and wrenching family separation. Little about this family's circumstances seems that different or likely to come as a surprise to adjudicators.
I do not mean to sound harsh, as I am quite sympathetic to these families. My views on this subject can be found in the dissenting opinions I filed or joined during my tenure on the Board in the cases of Matter of Monreal, 23 I&N Dec. 56 (BIA 2002) and Matter of Andazola, 22 I&N Dec. 136 (BIA 2002). The Tolani family, like many others, is unfortunately bearing the brunt of unnecessarily restrictive immigration laws introduced in the mid-nineties by a republican House of Representatives, led by Congressman Lamar Smith (R-TX), who has long been an opponent of immigration. Willing to paint all noncitizens with a broad brush, Smith is currently quoted on his own website as saying that "Illegal aliens in the US are law-breakers. They violate our immigration laws to enter and remain here, and use fraudulent documents to collect government benefits."
The particular section of the statute in issue, referred to as "cancellation of removal," provides that a qualifying, undocumented noncitizen may acquire a legal status only if he or she can establish that his/her deportation and removal will result in extremely and exceptionally unusual hardship to a designated U.S. citizen or lawful resident family member. The "usual" hardships of deportation are routinely discounted by adjudicators, because presumably, no matter how harsh, most everyone who is deported experiences them.
To my knowledge, Sens. Thurmond and Hollings, whom Connnor's article indicates have worked so hard to help this family, voted for passage of this onerous provision. Perhaps when it doesn't hit close to home legislators can ignore the consequences of their actions, and when it comes too close, well then, time for a private bill, a little ex parte contact with the adjudicating agency, some good press, and everyone wins. When it has a human face, the inhumanity of this law is quite clear. Making individual exceptions to bad law is neither democratic or fair, it is the bad law that must be changed.
Far from being a "discovery" by Senators Thurmond or Hollings, Matter of Recinas is a published case, which the Attorney General's regulations require immigration judges to read and follow. The grant of cancellation in Recinas is but an exception - it serves to demonstrate that the restrictive standards of the statute are not utterly impossible to satisfy. Maybe concentrated political pressure will do the trick in the Tolani case as well, but it won't change the pattern or break any mold.
What's needed is legislative and executive branch recognition that families with long-standing ties to the US and US citizen children should be incorporated into US society lawfully, rather than summarily ejected under a standard that belittles family separation and minimizes the trauma of forced relocation. What's needed is meaningful discretion restored to impartial judges who should be given the time and training necessary to pay close attention to individual human situations and to make independent decisions informed by the expert opinions of educators, counselors, psychologists, medical professionals and community representatives.
What will "break the mold" is a new mind set that views members of our community without documents as neighbors, presumes that they have good reason to remain here for our benefit as well as theirs, and a new law that corresponds by facilitating rather than frustrating their legal incorporation into US society.
Lory Diana Rosenberg
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