Suspension of Deportation

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) eliminated the relief of suspension of deportation and substituted a similar remedy, cancellation of removal, at INA 240A. See IIRIRA 304, 110 Stat. 3009. Nonetheless, an alien who was placed in deportation proceedings prior to the enactment of IIRIRA (April 1, 1997) may apply for suspension of deportation as it existed under former INA 244(a)(1) (1995). IIRIRA 309(c)(1).

A deportable alien may be granted suspension of deportation if he has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of his application, proves that he has been a person of good moral character during that period, and can demonstrate that his deportation would result in extreme hardship to himself or to his U.S. citizen or lawful permanent resident spouse, parent, or child. Id. Finally, the applicant must prove that his application should be granted in the exercise of discretion. See, e.g., Matter of Pilch, 21 I&N Dec. 627, 629 (BIA 1996).

The seven-year period of continuous presence is not broken by a brief, casual and innocent departure from the United States that is not “meaningfully interruptive.” Former INA 244(b)(2). However, continuous physical presence in the United States shall be deemed to end when the alien is served with an Order to Show Cause or a Notice to Appear. INA 240A(d)(1); see also Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000). Pursuant to IIRIRA’s transitional rule with regard to suspension of deportation, this “stop-time rule” applies regardless whether the charging document was filed before, on, or after IIRIRA’s effective date. Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999). Furthermore, the “stop-time rule,” as defined in INA 240A(d)(1), which cuts off an alien’s continual physical presence upon commission of certain criminal offenses, retroactively applies to an alien if his or her deportation proceedings were pending on the date of the enactment of IIRIRA. Tablie v. Gonzales, 2006 WL 3512954 *3-4 (2d Cir. Dec. 6, 2006). The relevant criminal offenses are those referred to in INA 212(a)(2), 237(a)(2), or 237(a)(4). See INA 240A(d)(1).

A finding of good moral character is both a statutory and discretionary matter. An applicant may be unable to demonstrate that he is a person of good moral character based on his status or commission of certain acts enumerated in the Act, or the Court may find, as a matter of discretion, that for other reasons, an applicant is or was not a person of good moral character. INA 101(f).

To evaluate whether the applicant or his qualifying family member would suffer “extreme hardship,” the following factors should be considered: length of residence in the United States; family ties in the United States and abroad; the health of the alien and his family members; the economic and political situation in the country of deportation; financial status, business, or occupation; other means for adjustment of status; immigration history; whether the alien is of special assistance to the United States; and the alien’s position in his community. Matter of Anderson, 16 I&N Dec. 596, 597 (BIA 1978). “While political and economic conditions in an alien's homeland are relevant factors in determining extreme hardship under Section 244(a)(1), they do not justify a grant of relief unless other factors such as advanced age, severe illness, family ties, etc. combine with economic detriment to make deportation extremely hard on the alien or the citizen or permanent resident members of his family.” Id.

In evaluating an application for suspension of deportation, the hardship to the applicant’s

United States citizen child must be given careful consideration, as the applicant’s eligibility

for relief may be established by demonstrating that his or her deportation would result in

extreme hardship to the child. Matter of Kao & Lin, 23 I&N Dec. 45 (BIA 2001).

Finally, a discretionary determination may be based on criminal behavior that does not render the alien ineligible for relief. Matter of Seda, 17 I&N Dec. 550 (BIA 1980).