Written by attorney Brian David Lerner

Deportation Hearings with the Order to Show Cause issued prior to 1996 and Suspension of Deportation

For persons in former deportation proceedings suspension of deportation is still available. There was and is no suspension in pre-IIRIRA exclusion cases. There are a few statutory prerequisites: the alien must have been physically present in the United States for a continuous period of seven to ten years, depending on the ground of deportability; the applicant must have been a person of good moral character during the requisite period of physical presence and it must be shown that deportation would cause extreme hardship to the respondent or to the respondent's spouse, parent and/or child, if such relative is a United States citizen or lawful permanent resident. In ten-year cases, the hardship must be "exceptional and extremely unusual." This burden is much less than the current Cancellation of Removal hardshipts. INS regulations state that the hardship must be "beyond that typically associated with deportation." The regulations set forth 14 non-exclusive factors bearing on the question of extreme hardship. Additional factors are listed with respect to cases based on abuse. A person is ineligible for suspension of deportation if he or she has overstayed a period of voluntary departure, even if while waiting for a decision. One class of suspension applicants does not need seven to ten years of residency to qualify. An applicant who has been battered or subject to extreme cruelty in the United States by a U.S. citizen or lawful permanent resident spouse (or parent of a child) need only be physically present in the U.S. for a continuous period of not less than three years prior to the date of the application, if during all of such time the applicant was and is a person of good moral character and if extreme hardship would result. The foregoing does not apply to one deportable because of marriage fraud. The statute requires consideration of any credible evidence. In addition, even if statutory eligibility is shown, the decision as to whether to grant suspension of deportation is discretionary with the immigration judge. The prior requirement of certain Congressional action was found to be unconstitutional. If suspension is granted, respondent is granted adjustment to permanent status. Suspension is not available to a respondent who entered the United States as a crewman subsequent to June 30, 1964, to a person who entered or obtained exchange visitor status to receive graduate medical education or training, to any other exchange visitor subject to the two year foreign residence requirement who has neither fulfilled nor obtained a waiver of the requirement or is deportable for having assisted in Nazi persecution or engaged in genocide. Also excludable are alien terrorists. With respect to continuous physical presence, in a seven year case, physical presence must have existed as of the time of suspension of deportation. In a ten-year case, it must have been accumulated following the commission of the act that constitutes the ground of deportability. If more than one ground of deportability is alleged, the ten years only begins to run from the last event that gave rise to a ground of deportability.

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