Guidance on Denials and Reserved Grants of Cancellation of Removal or Suspension of Deportation

 

Introduction

On December 5, 2017, the Executive Office for Immigration Review (EOIR) published a new final rule which authorizes immigration judges to issue final decisions denying applications for cancellation of removal or suspension of deportation regardless of whether the annual limit for grants of cancellation and suspension have been reached. Under the previous rules, immigration judges were required to reserve all final decisions on all applications for cancellation of removal and suspension of deportation once the annual limit for grants of cancellation and suspension had been reached.

Before continuing with this article, please see our full article on the Federal Register notice on the new rules [see article] in which wee discussed the effect of the rules specifically in the following section [see section]. In this article, we will review an EOIR memorandum on the implementation of the new rule titled “Operating Policies and Procedures Memorandum 17-04: Applications for Cancellation of Removal and Suspension of Deportation that are subject to the Cap” (“OPPM 17-04”) [PDF version]. OPPM 17-04 provides guidance to immigration courts on the new rules. The following sections of our article will detail different parts of the OPPM 17-04 that are relevant to applicants for relief. We will not examine every aspect of the procedural guidance for immigration judges, but those who are interested may read the 6-page memo in its entirety (provided above).

Cancellation of Removal

Effective Date of New Procedures

First, it is important to note that the new rules only apply to prospective cases. Cases that have already been reserved are not affected by the new rules. OPPM 17-04 made clear that its guidance “is effective as to hearings that are concluded on or after January 4, 2018.

Exceptions to the Requirement to Reserve a Decision

As we explained, under the previous rules governing cancellation of removal and suspension of deportation, immigration judges were required to reserve all final decisions once the annual cap for grants of cancellation of removal and suspension of deportation — set at 4,000 per year — had been reached. Unlike the new rule, this encompassed cases where the immigration judge intended to deny the application in addition to cases where the immigration judge would grant relief. OPPM 17-04 lists the scenarios, under the new rule, when an immigration judge is not required to reserve a final decision on an application for cancellation of removal or suspension of deportation after the annual limit of grants has been reached:

  • The application is denied or pretermitted* for any reason;
  • The application pertains to a detained respondent; or
  • The relevant application is one for suspension of deportation filed by a battered spouse or parent during proceedings in which the charging document was filed prior to April 1, 1997, or is an application for cancellation of removal under section 203 of NACARA (section 240A(e)(3) of the Immigration and Nationality Act (INA)).

*Pretermitted means left un-adjudicated.

Immigration judges will be alerted when there are no available numbers for grants of cancellation of removal or suspension of deportation for the remainder of the fiscal year. To this effect, the Office of the Chief Immigration Judge (OCIJ) will issue a cut-off date for the fiscal year. Immigration judges will be required to reserve decisions granting cancellation of removal or suspension of deportation after the cut-off date and until further notice. This was also required of immigration judges before the rule change. However, immigration judges will now be permitted to issue final decisions denying cancellation or suspension applications even after the cut-off date.

Concurrent Applications for Relief

The OPPM addresses cases in which an immigration judge intends to grant an application for cancellation of removal or suspension of deportation but where the applicant has a concurrent application for a separate form of relief or protection. Specifically, the OPPM provides procedures for cases where the cut-off date has been reached and the immigration judge would be required to reserve a grant of cancellation or suspension.

First, the OPPM explains that the immigration judge must address the concurrent application in his or her reserved decision. If the immigration judge intends to reserve a grant of cancellation or suspension and also deny the concurrent application(s) for relief, he or she must indicate this in issuing the reserved decision.

Second, the OPPM explains that if the immigration judge grants an application for asylum or for adjustment of status that was filed concurrently with the application for cancellation or suspension, the immigration judge must deny the application for cancellation or suspension as a matter of discretion. This applies regardless of whether the immigration judge would have granted the application for cancellation or suspension but for the concurrent application for relief. In this case, the decision on the cancellation or suspension application need not be reserved.

Preparing Reserved Decisions

The OPPM makes clear that an immigration judge may not reschedule a case where he or she issues a reserved decision granting cancellation or suspension. The OPPM provides two ways in which an immigration judge may, instead, issue a draft decision.

First, the immigration judge may issue a “draft dictated decision.” In this case, the immigration judge must record a draft decision outside the presence of the parties within 15 workdays. Upon receiving the draft decision, the immigration judge should review and edit the decision within five workdays. The immigration judge must then register the decision with the Court Administrator (CA). When a number becomes available for a grant of cancellation or suspension, the immigration judge is required to revise the decision within 5 days and sign the decision so that it is prepared for issuance. The OPPM notes that immigration judges may be instructed to not use this procedure during the final months of a fiscal year.

Second, the immigration judge may issue a “draft written decision.” A draft written decision must be completed within 60 workdays of the hearing. Upon completing the draft written decision, the immigration judge must provide it to the CA indicating that it is ready for issuance but has not been signed. Within five days of being notified that a number for granting cancellation or suspension is available, the immigration judge should make final revisions to the decision, sign it, and return it to the CA for issuance. The 60-day period may be shortened during the final months of the fiscal year.

It is worth noting that in both cases, the draft decision will not be released to either the parties or the public.

Where Immigration Judge is Unavailable to Issue Reserved Decision

In the event that the immigration judge who drafted a reserved decision is unavailable to issue the decision when a number for the grant of cancellation or suspension becomes available, the Assistant Chief Immigration Judge will reassign the case either to himself or herself or to another immigration judge. Under 8 C.F.R. 1240.1(b), the new immigration judge is required to familiarize himself or herself with the case and indicate in the decision that he or she has done so. The new immigration judge is not bound by the preliminary decision of the original immigration judge, thus meaning that he or she can reach a different conclusion. However, the OPPM instructs reassigned immigration judges to consider “among all the facts and circumstances present, that the original Immigration Judge had an opportunity to see and hear the witness(es) testify.”

Order of Issuing Final Decisions on Reserved Decisions

The OPPM explains that reserved grants of cancellation or suspension “are placed into a queue based on the chronological order of their [Cancellation of Removal Cap Date].” Cases receive a Cap Date regardless of their disposition. Furthermore, the Cap Date does not change if one of the parties appeals.

Conclusion

The main effect of the new rules for cancellation of removal and suspension of deportation is that final decisions to deny can now be issued even after the annual cap on grants has been reached. It is worth noting that the new rules do not change any of the substantive requirements for establishing eligibility for cancellation or suspension. In general, applying for cancellation or suspension, or any other form of relief or protection, is a complicated process. Those facing removal proceedings should always seek the counsel of an experienced immigration attorney for case-specific guidance.

We would again like to remind you to see our general overview of the new cancellation and suspension rules, including the full text of the pertinent regulations [see article].