1 Let’s Start With Some Facts and Statistics

President-elect Trump’s new “border czar” will be Thomas Homan, a veteran U.S. Immigration and Customs Enforcement (ICE) official who was an architect of Trump’s family separation policy in the first administration. Trump’s top immigration adviser will be Stephen Miller, who will serve as White House deputy chief of staff for policy. Neither one of these men require Senate confirmation. Both have promised on day one to launch a massive interior enforcement effort aimed at increasing tenfold the annual number of deportations. To accomplish this, they plan to use ICE officers bolstered by the National Guard, other members of the military, and state and local police. They also plan to construct vast holding facilities in Texas, as well as retrofit ones that already exist, which would function as staging centers.

According to the latest figures, approximately 11.3 million undocumented immigrants were living in the United States in 2022. See the Migration Policy Institute analysis of Census data.

Of that number, almost two-thirds, or seven million, have been residing here for 10 years or more.

Three and a half million undocumented immigrants over the age of 15 reside here with at least one U.S. citizen child under 18 years of age.

Two million are married to either a U.S. citizen or a lawful permanent resident (LPR).

Almost 1.5 million are currently residing lawfully with Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA) status. Trump has renewed plans to end those humanitarian programs and terminate the status of those who currently have them. Everyone granted DACA has been living in the United States for at least 17 years; a quarter of a million Salvadorans, Nicaraguans, and Hondurans with TPS have been residing here for at least 23 years.

As of the end of 2024, almost four million cases were pending in the immigration courts, with each judge managing an average caseload of around 4,500 cases. The average length of time to adjudicate a claim is five years. It currently takes more than two years for the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) to hire new judges, according to a Government Accountability Office report. If the Trump administration were to launch a massive deportation effort without expanding the number of immigration judges and court staff, the backlog would increase exponentially. In 2024 alone, the Department of Homeland Security (DHS) has added more than 1.3 million cases to the backlog.

Every undocumented immigrant arrested by ICE who has been physically present in the United States for a continuous period at least ten years and has a U.S. citizen or Lawful Permanent Resident (LPR) spouse, parent, or child may request a hearing in front of an immigration judge to apply for non-LPR cancellation of removal. They would need to establish the following: (a) they have been a person of good moral character for that ten-year period; (b) they have not been convicted of certain offenses; and (c) their removal would result in an exceptional and extremely unusual hardship to their U.S. citizen or LPR family member. INA § 240A(b)(1). If granted cancellation, they would become an LPR.

2. Exceptional and Extremely Unusual Hardship

The most challenging requirement is establishing exceptional and extremely unusual hardship to the qualifying relative. The noncitizen must show that his or her family member would suffer hardship substantially beyond that which would ordinarily result from the applicant’s removal. See Matter of Monreal, 23 I&N Dec. 56, 59 (BIA 2001). Factors to be considered in determining the level of hardship include the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. All hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that meets the high standard. Monreal, 23 I&N Dec. at 64.

Advocates should be creative in making arguments regarding hardship. For example, in a recent case handled by CLINIC, an immigration judge granted cancellation based on hardship to the clients’ U.S. citizen child who suffered from a severe peanut allergy. Peanut allergies were not common or well-understood in the country of origin, so the attorney successfully argued that the client would not be protected against peanut exposure at school. In addition, EPIPENs are not readily available in the home country, which would put the child at grave risk in case of accidental exposure to peanuts.

In another case also represented by CLINIC, an immigration judge granted cancellation of removal based on hardship to the client’s teenage U.S. citizen daughter. While the client’s daughter was healthy and doing well in school, the client also had an adult disabled son who required round the clock care. The adult son was not a qualifying relative because he was over the age of 21. However, the judge found that the teenage daughter would suffer exceptional and extremely unusual hardship due to her having to become the primary caregiver for her brother after the mother was removed.

3. What You Can Do

“Know your rights” campaigns have restarted in earnest to educate the noncitizen population concerning their basic Fourth Amendment rights. These include the right to remain silent, to block ICE officers from entering their residence without a search warrant from a judge, and to refuse to sign any documents without first speaking with a lawyer. They also include the right to refuse voluntary return to their home country and demand a hearing before an immigration judge. A person who does not fall into one of the following exceptions has a statutory right to seek relief before the immigration judge: been issued a removal order that has not been executed; is subject to reinstatement of removal; or is subject to expedited removal. Advocates should make sure the immigrant community understands the right to apply for non-LPR cancellation of removal if the basic 10-year residency and family relationship requirements are satisfied.

Attorneys and fully recognized DOJ-accredited representatives should review all their current clients’ biographical information and identify those who satisfy the eligibility requirements for non-LPR cancellation. Over 250,000 applications for this relief from removal are currently pending, but they represent fewer than 7 percent of the pending 3.7 million cases in the immigration court backlog. That low percentage may change as more long-term immigrants get caught up in increased enforcement efforts.

Keep in mind that Congress has set a statutory limit of 4,000 cancellation grants per year, so there is even a backlog for individuals in immigration court to receive a final grant once the immigration judge has indicated an intent to approve the application. Also keep in mind that there is no “age-out” protection for cancellation of removal — the Board of Immigration Appeals (BIA) has generally held that the qualifying child must be under 21 on the date of the final grant of cancellation. Matter of Isidro, 25 I&N Dec. 829 (BIA 2012). However, EOIR has indicated that it will entertain motions to issue a final grant of cancellation if a case is stuck in the visa backlog and the qualifying relative is at risk of aging out.

Take advantage of trainings and materials describing this important defense and develop the necessary expertise in this area of immigration law. CLINIC plans to offer a webinar on cancellation of removal in 2025 to allow practitioners to dive further into this important form of relief.