The Multiple Negatives in Immigration Speak

By David North, January 21, 2013

Two of the characteristics of the lingo of the immigration business are its often-convoluted nature and its double-negatives.

For example, cancellation or suspension of removal is good news for the alien — it means that he will not be deported — but voluntary departure is bad news, it means that he has to leave the country (but not in custody).

But the indoor gold medal in the field of awkward, multiple-negative, complex convolutions in immigration law terminology must go to this wonderful headline in the January 7 issue of Interpreter Releases:

"How to Present a Successful Non-LPR Cancellation of Removal Application when There Is No Obvious Hardship"

Translated it means, here's how an immigration lawyer can argue successfully that his client, who is not here legally, should not be deported, even though such an act will not impose an obvious hardship on anyone. (LPR stands for lawful or legal permanent resident.)

Now, one might think that if someone were not here legally, and if no one can argue that his departure will be a hardship to someone else (say a pregnant resident U.S. citizen spouse), then probably the alien should be shown to the door. The article does not even consider that point of view.

As for the verbiage, I count four negatives in the headline. There's the non-LPR, the cancellation, the removal, and the non-hardship. Interpreter Releases (IR) is the long-established, rather stuffy, weekly trade paper of the immigration bar.

While we can tease IR for its assault on the language, the underlying problem is a more serious one. It is that skilled immigration lawyers — despite all common sense — can manipulate the law and the courts to preserve the presence of illegal aliens who obviously should be deported.

The article is a the lead item in the January 7 IR and it is signed (unusual for that publication) by H. Raymond Fasano, a New York lawyer whose biography runs 14 lines and whose article is festooned with 18 end notes. Happily for public policy the article is not available online; you must be a subscriber to this expensive publication to read it.

These two paragraphs (citations omitted) are the key to his pitch:

The hardship standard for non-LPR cancellation of removal is exceptional and extremely unusual hardship to the applicant's qualifying relative if the applicant were deported. The Board of Immigration Appeals has reasoned, "We have long held that reduced economic and educational opportunities, without more, do not rise to the level of 'exceptional and extremely unusual' hardship." I found that a successful formula in satisfying this burden is to submit evidence that compares the economy, food, sanitation, medical care, and education in the U.S. with that in the applicant's native country. I present the case based on these five factors to show that the hardship that the applicant will experience is beyond that which is normally associated with deportation. The five factors address the "without more" requirement imposed by the Board when considered in the aggregate.

The Board has applied the five factors (economy, food, sanitation, medical care, and education) in sustaining an appeal of an immigration judge's denial of a cancellation of removal application when the "respondent [i.e., the alien] testified that the school in the village only offers education until the sixth grade, and that the village does not have indoor plumbing" …

Since most illegal aliens in removal proceedings are not about to be deported to, say, Sweden, and since most of them came from low-income settings, Fasano's argument would appear to have wide potential application, and would increase the already existing difficulties in the enforcement of our own immigration laws.