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Extensive new legislation to provide a new pathway to citizenship for aliens who were brought to the United States or otherwise arrived in the United States as children who do not have meaningful contact or connections with their native countries (“Dream Act beneficiaries”) might not be necessary.  Congress can make minor amendments to the present law to guarantee that the equities of these aliens will be considered in the ordinary course of business currently conducted in United States immigration courts and also the Department of Homeland Security.

Congress provided suspension of deportation for aliens who had entered the United States without inspection in section 19(c) of the Immigration Act of 1917. 

In 1952, Congress repealed virtually all of the various and scattered pre-existing immigration laws in an effort to consolidate all laws governing immigration.  In doing so it re-enacted the provision known as suspension of deportation.  See section 244(a)(1) of the Immigration and Nationality Act of 1952 (the 1952 Act). 

To qualify for suspension of deportation under section 244(a)(1) of the 1952 Act, the applicant had to prove:

1. the applicant had been continuously physically present in the United States for the last 7 years;
2. the applicant had been a person of good moral character for the same 7 year period; and
3. the applicant’s deportation would result in extreme hardship to the applicant or to the applicant’s United States citizen or lawful permanent resident spouse, parent or child.

See generally Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

In the context of an application for suspension of deportation, an applicant must demonstrate individual or cumulative factors that demonstrate “extreme hardship over and above the normal economic and social disruptions involved in deportation” to the applicant or the applicant’s qualifying relative(s) (i.e. the applicant’s United States citizen or lawful permanent resident spouse, parent or child).  Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).

On September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). This legislation substituted a relief now known as cancellation of removal for the suspension of deportation provision.  See section 240A(b)(1) of the Immigration and Nationality Act, as amended (“the  Act”).

To qualify for cancellation of removal, an applicant must prove that:

1. the applicant has been continuously physically present in the United States for at least 10 years;
2. the applicant has been a person of good moral character for 10 years;
3. the applicant has not been convicted for certain criminal offenses; and
4. the applicant's removal from the United States would result in exceptional and extremely unusual hardship to the applicant's United States citizen or lawful permanent resident spouse, parent, or child. 

To establish exceptional and extremely unusual hardship, an applicant for cancellation of removal must demonstrate that at least one of the applicant's qualifying relatives would suffer hardship that is substantially beyond the hardship which would ordinarily be expected to result from deportation.  However, it is not necessary for the applicant to establish unconscionable hardship.  See generally Matter of Monreal, 23 I&N Dec. 56 (BIA 2001).

As you can see, in 1996 Congress raised the bar for the ordinary applicant to qualify for relief by increasing the level of hardship needed to avoid removal (i.e. "exceptional and extremely unusual hardship" as opposed to "extreme hardship") and increasing the required period of physical presence (i.e. 10 years as opposed to 7 years). 

Even more important, however, is that for the purpose of assessing an applicant's eligibility for cancellation of removal, the Immigration Judge currently cannot consider personal hardship to the applicant for cancellation of removal, except to the extent that it indirectly causes hardship to one or more of the applicant’s qualifying relatives (i.e. United States citizen or lawful permanent resident spouse, parent, or child).  Only hardship to qualifying relatives is relevant to satisfy the exceptional and extremely unusual hardship standard for cancellation of removal.  

Under suspension of deportation provisions in the 1952 Act, personal hardship to the applicant for suspension of deportation can be considered.  The IIRIRA 1996 amendments cut off the opportunity for potential Dream Act beneficiaries to present their personal hardship for consideration.  This is an opportunity that had existed in United States immigration law at least since 1917. 

Congress could, by slightly amending the criteria for cancellation of removal, permit Immigration Judges to consider the personal hardship of individual applicants themselves when assessing their eligibility for cancellation of removal.  Congress could also restore the original "extreme hardship" standard for potential Dream Act beneficiaries, as it had done for battered women and children.  See section 240A(b)(2) of the Act. 

Persons granted cancellation of removal would become lawful permanent residents for whom a path to citizenship already exists as it does for all lawful permanent residents (i.e. naturalization upon meeting all of the naturalization requirements).

Therefore, it does not seem necessary to provide special treatment in a new body of law for a new class of aliens to create a new path to citizenship.  Also, a case by case approach to assessing eligibility and the exercise of discretion would better protect the interests of the United States (by ensuring that undesirable aliens are not admitted into the United States) as well as providing fundamental fairness to individual applicants.

Currently, only 4000 suspension of deportation and cancellation of removal applications in the aggregate can be granted in any fiscal year. See section 240A(e)(1) of the Act.  Congress could increase the cap which had been reached before the ends of the last two fiscal years.

Another statutory modification that would benefit potential Dream Act beneficiaries would be to designate a more current entry date for aliens to qualify for registry under section 249 of the Act.  Currently, registry provisions apply to aliens who entered the United States prior to January 1, 1972.

A registry applicant must establish that:

1. the applicant entered the United States before January 1, 1972;
2. the applicant has resided continuously in the United States since such entry;
3. the applicant is a person of good moral character; and
4. the applicant is not ineligible for United States citizenship, and is not subject to deportation under section 237(a)(4)(B) of the Act (terrorist activities).

Registry is a discretionary form of relief applicable to aliens for whom a record of admission for lawful permanent residence does not exist.  It is not necessary for a registry applicant to prove hardship, although hardship would be relevant to the exercise of discretion.

The legislative process resulting from fine tuning existing immigration law might seem painfully slow for those who seek immediate gratification, but it would not differ from other immigration processes for legitimating immigration status; and it might not be less efficient than the process that arises from new legislation.

Perhaps, dedicating more resources for a more robust and independent immigration court system and Department of Homeland Security adjudication function, and expanding jurisdiction for the latter would hasten the pace of adjudications.  For example, the former INS was given jurisdiction to adjudicate suspension of deportation applications under the Nicaraguan and Central American Relief Act. See Pub. L. No. 105-100, tit. II, 111 Stat. 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997); 8 C.F.R. § 1240.62(a).

Perhaps, a simpler and more expedient remedy for a flat tire is to repair or replace the tire, rather than buy a new car.