What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal

Abstract

This article, part of a symposium on the future of immigration enforcement honoring Professor David Martin, considers relief from removal awarded to some long-term residents based on compelling equities in their particular cases as an essential component of rational immigration enforcement. Under the current statute, adjudication of this form of relief — known as non-LPR cancellation of removal — has ground to a halt. The article explains the unintended and perverse consequences of a statutory cap on grants of non-LPR cancellation, which when combined with the crushing backlog of cases in immigration court operates to undermine non-LPR cancellation as a form of lasting relief. Ironically, a robust system of prosecutorial discretion, which focuses enforcement resources on high priority cases, can also cut off access to non-LPR cancellation for the most deserving applicants, since an individual must be in removal proceedings to apply.

A close examination of how non-LPR cancellation currently operates reveals the serious dysfunction of our nation’s immigration court system. I argue that the statutory cap on non-LPR cancellation should be repealed. Alternatively, the Executive Office for Immigration Review (EOIR) should change the way it administers the statutory cap. In addition, with the advent of the Deferred Action of Parents of Americans and Lawful Residents (DAPA) initiative (which was placed under preliminary injunction as this article went to press), an opportunity arises to create an affirmative application process, so that individuals can apply for non-LPR cancellation outside of removal proceedings.

In an era of congressional gridlock, where expanded prosecutorial discretion via deferred action has become the de facto alternative to a legalization program, close attention must be paid to preserving access to this more durable form of relief from removal. Any serious conversation about immigration reform must consider how at present non-LPR cancellation contributes significantly to EOIR’s dysfunction, but if reformed could play a role in rationalizing immigration enforcement.

Keywords: immigration