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RULE ON 'RESERVING' DECISIONS IN CASES OF SUSPENSION/CANCELLATION
GENERAL RULE
The September 30, 1998 regulations governing suspension of deportation and cancellation of
removal provide that when the 4,000 numerical cap is reached in a fiscal year, the Immigration
Judge (IJ) and the Board of Immigration Appeals (BIA) will be "reserve" their decision on a
case, and complete the decision in a future fiscal year when numbers are available.
WHERE APPLICATIONS MAY BE DENIED OR PRETERMITTED
However, even where the year's numerical cap has been reached, IJ's and the BIA may deny or
pretermit an application for suspension/cancellation where the applicant does not appear to
be statutorily eligible for a grant of relief.
What follows is a partial lists of examples listed in the regulations of the types of cases
that IJ's and the BIA may deny:
- The alien is an aggravated felon.
- The alien is subject to mandatory bar to establishing good moral character (Section 101(f)).
- The alien failed to voluntarily depart the U.S. when ordered, or was found to be deportable
or removable in absentia or has failed to appear for deportation or removal at the place
and time ordered.
- The alien does not have the required physical presence for suspension/cancellation.
- For cancellation cases, the alien does not have the qualifying relative (USC or LPR parent,
spouse or child) to whom exceptional and extremely unusual hardship must be shown.
WHERE APPLICATIONS MAY NOT BE DENIED OR PRETERMITTED
The regulations also provide, however, that an application for suspension/cancellation can
not be denied or pretermitted rather than reserved in any of the following circumstances:
- Merely because of the unfavorable exercise of discretion.
- Where there is a finding of that the alien is not a person of good moral character
under a ground not specifically noted in Section 101(f).
- Where, in an application for cancellation of removal, the alien fails to demonstrate a
finding of exceptional and extremely unusually hardship to a qualifying relative.
- Where, in an application for suspension of deportation, the alien fails to demonstrate
extreme hardship to himself/herself and/or to a qualifying relative.
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