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When many immigrants are in deportation proceedings, they have the opportunity to request "cancellation of removal" if they have been in the US for more than ten years, they possess good moral character, and their deportation would cause an extreme hardship to a US citizen or permanent resident immediate relative. If cancellation of removal is approved, the alien will be awarded permanent residency. However, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the number of aliens in deportation proceedings who can receive cancellation of removal in a fiscal year is 4,000 and it has quickly become apparent that this limit is far less than the number of people eligible for the benefit.

Prior to September 1998, Immigration Judges could award a conditional grant of cancellation of removal after the cap had been reached. That basically allowed aliens to receive work authorization until new numbers are available. But last fall, the Department of Justice issued an interim regulation eliminating the conditional grant process. Under that rule, once the cap is hit, a judge must reserve the decision until new numbers are authorized.

Now the Office of the Chief Immigration Judge has issued specific rules for Immigration Judges to follow when the cap is close to being reached. When 3,800 cancellation of removal cases have been granted in a fiscal year, the Office of the Chief Immigration Judge will notify the Immigration Courts. The date of the notification will be called the "cut-off" date and as of that date, Immigration Judges must reserve their decisions. The remaining numbers will then be allocated based on a priority system that first will grant cancellations for cases that were approved before the cut-off date but were not properly entered into the system and then to cases approved after the cut-off date.

Immigration Judges do not have to reserve their decisions in cases where they are certain the applicant lacks eligibility, where the judge believes the applicant will be granted asylum or adjustment of status, or the alien is otherwise not subject to the cap.

The judge will now write his or her decision and hold the decision until the cap is lifted. The judge is forbidden from revealing how he or she has ruled. And in the mean time, the applicant must wait without employment authorization until numbers are available.

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Memphis, TN 38119
T. 800-343-4890 or 901-682-6455
F. 901-682-6394

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