Employment Law: Government Shutdown Means Legal Status Delayed
On October 1, 2013, hundreds of families across the United States were impacted by the federal government shutdown. Two of my undocumented clients were affected, when they appeared for their long-awaited decision in Hartford Immigration Court only to find a note on a locked door that read: "Immigration Court Closed Due To Government Shutdown!!!!!"
For the Garza family, the expected decision was the final step in a process that began 18 months ago and would have ended 20 years of undocumented "illegal" status in the United States. For Mr. Haddad, the decision would determine whether he and his family would be forced to return to their country, where they would face the spillover from the Syrian conflict, or whether he would be allowed to continue living and working in the United States with the professional degree that he had earned from a United States university. (I've changed the names of my clients to protect their identity.)
The elevator heading to the sixth floor of the federal building in Hartford held two families eager to receive life changing news from their assigned Hartford immigration judge. They arrived 30 minutes early for the 8:30 a.m. hearing. Mr. Garza, dressed in a navy blazer that was normally reserved for weddings, pushed his severely disabled wheelchair-bound, United States citizen daughter while Mrs. Garza held their hearing notices. Mr. Haddad came alone but knew that his wife optimistically awaited the Court's decision at home.
The Garzas and Mr. Haddad are respondents in removal proceedings. When the Department of Homeland Security seeks to remove a non-citizen from the United States, the individual is placed into removal proceedings, which was previously referred to as deportation proceedings. Neither of my clients have legal status in the United States but the Department of Justice, through the Executive Office of Immigration Review, is given authority to close a respondent's removal proceedings and approve an application for Cancellation of Removal, pursuant to 8 U.S.C. §1229(b), § 240A(b)(1). An approval results in legal permanent residency. That is exactly what the Garzas and Mr. Haddad hoped would happen on October 1, 2013.
Cancellation of Removal for non-lawful permanent residents is a form of relief from removal for aliens currently in the United States illegally. Cancellation of removal allows respondents to stay in the United States and avoid separation from their families if they meet certain requirements and warrant a favorable exercise of discretion. To be eligible for cancellation of removal under 8 U.S.C. §1229(b), § 240A(b)(1) of the Immigration and Nationality Act, a respondent must establish that he (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense under section § 212(a)(2), 237(a)(2), or 237(a)(3) of the Act; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the respondent's United States citizen spouse, parent, or child.
The standard for "exceptional and extremely unusual hardship" is difficult to meet. My clients, however, presented substantial evidence to the court that their United States citizen children would suffer severe depreciation of their quality of life if their parents were removed from the United States. Specifically, Mr. Haddad's minor son, diagnosed with autism, would be subject to institutionalization and deprived of proper treatment, which would result in a permanent diagnosis of autism. The Garzas' greatest fear was that if removed from the United States, their daughter, who suffers from an incurable genetic disease and requires constant medical attention, would most likely die.
Both families had been anxiously waiting for October 1, 2013, not just because that was the court hearing but because that was the date that the permanent residency numbers were released and became available. Only 4,000 grants of Cancellation of Removal for non-legal permanent residents may be issued per fiscal year as mandated by the Immigration and Nationality Act. Immigration judges must reserve their decision on potentially approvable cases until an approval is numerically available, pursuant to 8 C.F.R. §1240.21(c)(1).
For my clients, that was October 1, 2013. The "cap" for non-Legal Permanent Resident Cancellation of Removal and Suspension approvals was reached on December 5, 2012 for the last fiscal year. With the new fiscal year beginning October 1, 2013, the families were relieved and excited to be positioned first to receive their permanent residency if their application for Cancellation of Removal was approved.
As we rode up in the elevator, I did my best to prepare my clients for the potential impact of the government shutdown. The morning news had not given clear instructions of whether Immigration Court would be operating that day. The sign posted on the locked doors was clear: Closed. The Garza and Haddad families had cautiously approached October 1, 2013 with reserved optimism, and as we re-read the sign, we tried to understand and glean answers to our questions. They turned to me, but I could not answer their questions. When would their cases be rescheduled? Would their cases be given priority over cases with regard to the "cap"? What would happen if they are rescheduled and the "cap" had been met? How long the court would be closed? How much longer would they wait? I had no answers.