Criminal Defense Lawyers

IIRIRA – the Illegal Immigration Reform and Immigrant Responsibility Act

The Law That Started in 1996 – And Why Congress Thought It Was Simple

Back in 1996 Congress passed something called IIRIRA – the Illegal Immigration Reform and Immigrant Responsibility Act. Before this law, immigration judges had way more power to stop deportations. They could consider all kinds of factors, family ties, how long you been here, whether you owned a business or property. It was called suspension of deportation and if you’d been here seven years and showed regular hardship – not extreme hardship – you had a real shot. Congress decided this was too generous. So they created withholding of removal under 8 USC 1229b(b)(1) with much tougher standards.

The new law says you need to prove “exceptional and extremely unusual hardship” to a qualifying relative who’s a US citizen or permanent resident. Not just hardship. Not even extreme hardship like in other immigration contexts. Exceptional AND extremely unusual hardship. The Board of Immigration Appeals has said this means hardship that’s “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family in the United States.” Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001). That’s a mouthful but what it really means – the hardship has to be way worse than just missing your family or them losing financial support.

Immigration judges deny about 85% of these cases nationwide according to TRAC data from Syracuse University. Some deny 95% or more. The Second Circuit and Ninth Circuit have slightly better odds but we’re still talking about winning maybe 20-25% of cases in the best jurisdictions. Congress wanted it tough and they got what they wanted. Theyy wrote this law to be almost impossible to meet because they thought too many people were avoiding deportation under the old system.

Your Ten Years Start Counting From a Specific Date – Not When You Think

Here’s where people mess up all the time – they think if they entered the US ten years ago they automatically qualify. Wrong. The statute requires ten years of “continuous physical presence” and that clock stops ticking the moment DHS serves you with a Notice to Appear. INA Section 240A(d)(1) calls this the stop-time rule and it catches everyone. You could’ve been here fifteen years but if you got arrested and put in removal proceedings five years ago – you only have five years that count.

Even worse, the continuous physical presence requirement means any trips outside the US can break your time. Leave for more than 90 days at once or 180 days total? Your clock resets to zero when you come back. The EOIR practice manual explains this but people still get confused because they think short trips don’t matter. A week here, two weeks there – it adds up and the courts love catching people who can’t document every single entry and exit. The physical presence requirement is different from continuous residence which applies to other forms of relief. Physical presence just means you were here – doesn’t matter if you had status or not. But continuous residence for something like adjustment of status requires maintaining lawful status. People mix these up constantly and file the wrong applications. Then they waste years in immigration court only to find out they never qualified in the first place. The whole system is designed to trip you up on technicalities, and this particular technicality probably disqualifies more people than any other single requirement because nobody keeps records of every time they crossed the border fifteen years ago.

Good Moral Character Means More Than Just No Arrests

The statute says you need to show good moral character for the entire ten year period. Most people think this just means no crimes but it’s way more complicated. INA Section 101(f) lists specific bars to good moral character – any aggravated felony kills your case automatically. But also stuff like: failing to file tax returns, not paying child support, lying to immigration officials ever, working without authorization (though circuits split on this one), even adultery in some cases though that’s rarely enforced anymore.

Tax returns trip up so many people. You worked under the table for five years? Better hope you filed returns anyway and paid taxes on that income. The IRS doesn’t care how you made the money – they just want their cut. But immigration officials absolutely care and will deny your case for failure to file. Some hearing officers might give you time to file late returns but others won’t. And if you used someone else’s social security number to work – that could be considered false claim to US citizenship which is basically immigration death penalty, no relief available ever.

Child support is another killer. Maybe you had kids with someone, relationship went bad, now you owe $20,000 in back support. Even if you’re paying now – those years you didn’t pay count against good moral character. DUI convictions are discretionary negative factors meaning the court can deny based on them but doesn’t have to. Two DUIs though? You’re probably done.

Domestic violence arrests even without conviction will sink most cases because decisionmakers see it as going to credibility and character.

The Hardship Has to Be to Someone Else – Not You

This is the hardest part for people to understand – your suffering doesn’t count. You could be dying of cancer, homeless, whatever – if you don’t have a qualifying relative who would suffer exceptional hardship, you lose. Qualifying relatives are only: spouse who’s a citizen or permanent resident, parents who are citizens or permanent residents, or children who are citizens or permanent residents. Your US citizen brother? Doesn’t count. Your girlfriend of 10 years who’s a citizen? Doesn’t count unless you’re legally married.

The hardship analysis focuses on what happens to your qualifying relative if you’re deported – not what happens to you. Say your US citizen kid has autism and needs special services only available here. That’s good. But if your ex has custody and the kid would stay with them – where’s the hardship? Courts want to see that your qualifying relative would either have to leave the US with you (and suffer there) or stay here without you (and suffer here). Best cases involve medical conditions that can’t be treated in your home country, or situations where the qualifying relative literally cannot function without you as caregiver. Financial hardship alone rarely works unless it’s extreme – like your qualifying relative would become homeless or unable to afford life-saving medical treatment. Normal financial difficulties from losing a breadwinner don’t meet the standard. Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020) says the hardship must be “substantially beyond that which would ordinarily be expected to result from the alien’s deportation.” Hearing officers seen thousands of families separated – yours has to be truly exceptional. They’ve heard every sob story, every claim of hardship, every tearful testimony about breaking up families. What makes yours different? What makes yours meet that “exceptional and extremely unusual” standard when 85% of cases just like yours get denied? You better have an answer that goes beyond “my kids will miss me” because every deported parent leaves kids behind.

Immigration Judges Have Seen Every Story – But Some Still Win

Looking at the data from TRAC’s immigration court records, certain fact patterns win more than others. US citizen children with severe disabilities requiring specialized care win about 40% of the time. Parents who are sole caregivers for elderly US citizen parents with dementia or similar conditions – maybe 35% success rate.

Everything else is under 20% and dropping every year as case law gets stricter.

Documentary evidence makes or breaks these cases. Medical records obviously but also: school IEPs showing special services, letters from doctors explaining why treatment isn’t available abroad, country condition evidence showing lack of adequate healthcare, proof you’re the only caregiver. One strong expert witness beats fifty character letters. Psychologists who can testify about attachment disorders, country experts who can explain why your kid’s medical condition can’t be treated back home – these move decisionmakers. But getting those experts costs money. A good psychological evaluation runs $2,000-5,000. Country condition expert might charge $300-500 per hour. Most people facing deportation don’t have that kind of money so they go in with whatever documents they can scrape together and hope for the best. Hope isn’t a legal strategy.

But officials also gotten good at spotting manufactured hardship. Kid suddenly diagnosed with ADHD right before the hearing? Suspicious. Parent who never saw doctors suddenly has ten medical conditions? Red flag. The conditions need to be documented over time, showing a clear pattern of treatment and dependence. Best cases have years of medical history before removal proceedings even started. Timing matters as much as the actual hardship.

The Application Process Takes Years – Here’s What Happens Month by Month

Once you file EOIR-42B application for cancellation of removal, you’re looking at minimum two years before individual hearing – sometimes five years or more in backed up courts like Los Angeles or New York. First comes master calendar hearing where you admit or deny the charges, concede removability usually, and state you’re seeking cancellation.

Supporting documents deadline is crucial and courts rarely give extensions. Miss it and some will deem your case abandoned. You need everything by that date: birth certificates proving relationship to qualifying relatives (with certified translations), tax returns for all ten years, any criminal history documents, medical records, country conditions evidence, expert reports if you have them. The government attorney gets copies of everything and they will verify every single document so don’t even think about submitting fakes. They’ve seen every forged document, every photoshopped medical record, every fake tax return. They know what to look for and when they catch you – which they will – you’ve just added fraud to your list of problems. Now you’ve got no good moral character and no credibility.

Individual hearing is where you testify, present witnesses, get cross-examined by government attorney.

These hearings supposed to last 3-4 hours but often get continued multiple times. Maybe interpreter doesn’t show up, maybe emergency comes up, maybe government attorney not prepared. Each continuance adds 6-12 months. When hearing finally happens – you better be ready because there’s no do-overs. Your testimony needs to match your written statement exactly. Any inconsistency gets hammered on cross-examination. You said you left the country for two weeks in 2018 but your passport shows three weeks? Now everything you say is suspect. You claimed you were primary caregiver but your wife’s work schedule shows she was home more than you? Credibility gone.

Appeals and Motions When Things Go Wrong

If denied – now what? You have 30 days to appeal to Board of Immigration Appeals. Filing fee is $110 but you can request fee waiver if indigent. BIA reverses immigration decisions in less than 10% of cases so don’t get hopes up. They review for legal errors, not factual determinations. Court found you not credible? BIA won’t overturn unless clearly erroneous. Best shot is if wrong legal standard applied or relevant evidence ignored completely.

BIA denies? Next stop is federal circuit court of appeals – whichever circuit covers where your immigration hearing happened. Different circuits have different standards – Ninth Circuit bit more liberal, Fifth Circuit extremely strict. You need lawyer for this realistically because federal court has complex procedural rules. Jurisdiction stripped for criminal grounds of removability so if your case involves crimes, might not even be able to appeal. Federal courts can’t review discretionary determinations, only legal errors. They won’t reweigh evidence or second-guess credibility findings.

Motion to reopen based on changed circumstances is another option. Country conditions got significantly worse? New medical diagnosis for qualifying relative? You can file motion to reopen but need to show evidence was unavailable at time of hearing. Marriage to US citizen after hearing doesn’t count – should’ve done that before. These motions succeed maybe 15% of time and courts view them skeptically as delay tactics. Plus you’re usually stuck with same decisionmaker who already denied you once. What makes you think they’ll change their mind? You need something dramatic – like your country just had a military coup or your kid just got diagnosed with cancer. Regular changes in circumstances won’t cut it.

Bottom line on withholding applications – they’re brutal. Success rate keeps dropping every year as adjudicators get stricter and BIA issues more negative precedent decisions. You absolutely need experienced lawyer who’s done these cases before. Not someone who usually does employment-based visas and thinks they can figure it out. Criminal defense attorneys who claim they do immigration – run away. You need someone who lives and breathes removal defense, knows the decisionmakers, knows which arguments work in your circuit. Most people don’t qualify when you really examine the requirements. Ten years physical presence gets broken by trips home they forgot about. Good moral character gets torpedoed by old tax issues or arrests. Hardship isn’t exceptional enough because officials seen worse. But for the few who truly meet all requirements and can document everything properly – it remains one of the only forms of relief available to long-term undocumented residents facing deportation. The bar is high because Congress wanted it that way. Your job is proving you’re the rare exception who deserves this extraordinary relief.

Call Spodek Law Group at 888-997-5177 for a consultation about your withholding case.