Maryland Criminal & Immigration Lawyer Blog
Many of the undocumented immigrants who find themselves facing deportation may choose to avail themselves of the process known as “cancelation of removal.” A new ruling from the U.S. Supreme Court says that many of those applicants may, even if unsuccessful at the agency level, continue pursuing their case in the federal courts. Whether you’re before an immigration judge, the Board of Immigration Appeals, or a federal court, your odds of success are greatest when you have legal representation from an experienced Maryland deportation defense lawyer.
The immigrant in the Supreme Court case – S.W. — faced deportation following a 2019 arrest on drug charges. Although local prosecutors later declined to pursue the criminal case, immigration authorities went forward with the deportation action against the man.
The immigrant acknowledged that he was eligible for deportation (he had long overstayed the tourist visa he obtained in 2003,) but argued that he was entitled to a cancelation of removal.
Federal law allows immigrants to obtain a cancelation if they meet certain legal criteria that are laid out in 8 U.S.C. Section 1229b(b)(1). Those four elements are:
- Physical presence in the United States for a continuous period of not less than 10 years immediately preceding the date of the cancelation application;
- Good moral character;
- No convictions under 8 U.S.C. Sections 1182(a)(2) 1227(a)(2), or 1227(a)(3) (drug crimes, crimes of “moral turpitude,” or crimes related to failure to register/falsification of documents);
- Proof that deportation would inflict an exceptional and extremely unusual hardship to the immigrant’s spouse, parent, or child, who is a citizen of the United States or… lawfully admitted for permanent residence.
S.W.’s application asserted all of these things, as he had a U.S.-born son who had experienced profound problems during his detention and would, due to his medical and mental health conditions, endure severe hardship if the deportation went through. The immigration judge concluded that the hardship alleged wasn’t extreme enough to meet what the law demands and the Board of Immigration Appeals upheld that decision.
The immigrant took his case to the federal courts, but the trial court and the federal appeals court both concluded that the issues S.W. contested were “questions of fact” and the immigration statutes did not allow the federal courts to review those types of decisions. In a win for cancelation applicants and immigrants generally, the U.S. Supreme Court disagreed.
As a bit of background, it is important to understand the foundation of the arguments. Federal courts are what the law calls “courts of limited jurisdiction.” That means you can only pursue a case in federal court if federal law specifically recognizes your case as something a federal court can decide. This is called “subject matter jurisdiction.”
Federal immigration law says that federal courts have subject matter jurisdiction to review (and potentially reverse) the decisions of federal immigration judges and/or the Board of Immigration Appeals only if the alleged error is related to a “question of law.” (A dispute over what statute of limitations applied to a given case and whether or not the plaintiff was entitled to equitable tolling of that statute of limitations are two examples of questions of law.)
On the other side are “questions of fact.” As an example, whether a cancelation applicant’s hearing testimony was credible or unbelievable is a question of fact. The immigration statutes do not give the federal courts jurisdiction to review disputes over questions of fact.
Assessing Disputes that are Mixed Questions of Law and Fact
Most issues, however, are not 100% law or 100% fact but a mixture of both. The Supreme Court, in affirming the federal courts’ jurisdiction to hear cases like S.W.’s, declared that, even if a mixed question was predominantly factual in nature, the law-related portion of the question was – although only a minority fraction of the whole — enough to allow the courts to review the matter.
The high court’s ruling potentially reaches a broad range of cases. This outcome gives those applicants the maximum chance of securing the cancelation they need to remain in the U.S.
Given the stakes involved when you’re fighting deportation, it is highly worthwhile to have the strongest possible legal team on your side. The skilled Maryland deportation defense attorneys at Anthony A. Fatemi, LLC have the in-depth knowledge and extensive experience your case needs. Contact us today at 301-519-2801 or via our online form to set up your consultation.