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Immigration Law

For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All

Yilun Cheng, Borderless Magazine, Jan. 13, 2021

"In the spring of 2015, Jesus Santos walked into the Immigration and Customs Enforcement office in Oakbrook Terrace to turn himself in to authorities. It was a risky move for an undocumented immigrant. But the 46-year-old father of three, who has lived in America since he was 15, had few other options. Applying for asylum would be nearly impossible: Although his hometown of Guerrero, Mexico, is plagued by street gangs and armed guerrilla groups, he cannot prove that he would face danger if he goes back. Santos could theoretically wait for his oldest child — a U.S. citizen —to turn 21, and then apply for a green card as an immediate relative, but he would have to first return to Mexico and wait there for at least 10 years. By placing himself in deportation proceedings, Santos could apply to adjust his status and possibly attain a green card through a benefit known as cancellation of removal. “I know this was a big risk, but I just don’t want to live in the shadows anymore,” said Santos, who lives with his wife and children in Riverside, a suburban village outside Chicago. “I used to be nervous all the time. If everything goes well, I’d like to push a reset button and start all over again.” But Santos’ long journey to legal residence was only beginning. Applying for cancellation of removal ­­–– a type of deportation relief that adjusts an immigrant’s status from “deportable” to “lawfully admitted for permanent residence” –– has never been swift or easy. Its legal provisions are so obscure and its eligibility requirements so demanding that only 6.5 percent of the more than one million immigrants who entered into deportation proceedings in the past four years applied for the benefit, according to data from Syracuse University’s Transactional Access Records Clearinghouse (TRAC). ... According to Alberto Benítez, the director of the Immigration Clinic at George Washington University Law School, winning a suspension case for his clients before 1996 was challenging enough. But the new language, he said, was deliberately written to further restrict the number of qualified applicants. “Congress specifically did it this way to make the process as unpleasant, as harmful and as drastic as possible,” Benítez said. ... Unlike Santos’ attorney, many lawyers are reluctant to recommend their clients to enter deportation proceedings just to apply for cancellation. Colorado-based immigration attorney Daniel Kowalski said he has never taken on a case like Santos’ during his 35 years representing clients in the immigration system. Not knowing which judge or government prosecutor the applicant is going to get, he said, is too big a risk. “The reason why more lawyers don’t do it is because they don’t want to gamble on getting a bad judge,” said Kowalski, who also serves as editor-in-chief of Bender’s Immigration Bulletin. “And the standard is so high that even if they won, the government could still appeal, and then they’d be tied up in the appeal for years.” ... At the end of the one-and-a-half-hour hearing, the judge said that he was leaning toward a favorable ruling, but that Santos would have to wait 18 to 24 months before receiving a formal decision. Such a statement usually means that the judge has unofficially approved the application, according to Santos’ lawyer Omar Abuzir. That night, Santos ordered hamburgers for his children. After five excruciating years of waiting, he felt that his family deserved this moment of relief."