Cancellation of Removal Gave Us a Chance

by Laura Lopez Ledesma

Why I decided to go to law school

I came to law school so that I can serve as a licensed immigration attorney in my community of Northern California because there is a great need for licensed practitioners. Getting licensed is my overarching reason for law school. The underlining reason I would like to serve as an attorney is because of immigration “consultants” working in my community. The consultants may or may not have had the means to attend law school, yet they are practicing law to the detriment of migrants. Reasons people seek legal services from consultants include the higher cost of private-attorney fees, the limited availability of private or nonprofit attorneys in the community, and the word-of-mouth referrals based on successful cases and in the absence of the voices of those whose cases ended in removal. A person unlawfully practicing law directly impacted my family. My parents hired a person who turned out not to be an attorney and who charged them for doing absolutely no work. Had my parents’ application been filed earlier, I may now have lawful status. Although and because I am undocumented, I am in law school to become an attorney and help the migrant community.

My migration story, according to my mother

I migrated from Mexico with my mother in 1989, when I was a year and nine months old. I purposefully say that I came with her because I would like to believe that if she had come to this country without me, I would have made the voyage like many of the unaccompanied minors have done to date to reunite with family. We migrated for a better life. My reasons for coming to the U.S. were socioeconomic; a reason which is so seldom empathized.

My father was an alcoholic who spent his earnings from the Guanajuato Electricity Commission at the local bars. My mother worked selling clothes at the local market. She did her best to make it work, but the relationship was unhealthy. We had two choices: either we stayed and struggled with my father who did not want to stop drinking, or we took a chance in the U.S. In either case, my mother would be raising me as a single mother. We decided to migrate.

My paternal grandparents, Juan and Elodia, rode the bus with my mother and me to the border. The journey was about four days long. The hardest part of our journey across Mexico was standing on the edge of a cliff while the bus’s flat tire was changed. Our journey’s hardship does not compare to the hardship many migrants now face. When we reached the border, we were taken to a home where we then got in the back of truck that took us to the beach near the San Ysidro, California port of entry.

We were at the beach having a picnic until the call came out, “Ya.” The call, “Now,” meant that the border patrol agents where changing shifts and there would be a void at the port. The call meant that we were all to get back onto the trucks and ride across the line. We headed from San Ysidro to Los Angeles. From Los Angeles, we rode north to Napa, wine country. Napa Valley has been my home ever since. My father decided to join us after seeing that my mother was set on providing me with a better life, even if it meant separating from him.

The ease that we had in migrating is the reason why my mother and I never returned to Mexico while undocumented. She tells me she thought we were lucky and did not want to risk bringing on bad luck by doing the migration again.

In the hopes of fixing our status, my parents saved up to hire an attorney. They had consultations with people who held themselves out to be attorneys and others who actually were attorneys until they found the one who could help. My parents’ last attorney found that the only legal remedy they could seek was asylum. However, the claim was not strong and it was denied, so my parents were placed in removal proceedings.

I remember being in fifth grade when my parents took me to an appointment with the attorney. I knew we were in the office to apply to fix our papers, our immigration status. What I did not know then, is that my parents’ application was part of a removal defense. I was not included in the application because I was not in deportation and even if I were, I was not eligible for any remedy.

The only remedy that my parents could use to defend against their deportation is known as Cancellation of Removal for nonpermanent residents. There are two types of Cancellation of Removal, one for persons who are LPRs (green-card holders) and another for non-LPRs. The requirements for non-LPR Cancellation of Removal, in a simplified way, are (1) having been in the country for at least 10 years, (2) have a good moral character, and (3) have a qualifying relative who would suffer exceptional and extremely unusual hardship if the non-LPR were removed.[i]

Like my parents, I met the 10-year requirement and had a good moral character. But unlike them, I did not have a qualifying relative; they had my sister, but I had no one. The attorney fought their removal case for almost six years until 2004 when the immigration judge granted them LPR status. As residents, my parents were finally able to travel to Mexico, and my father was able to petition for me to become an LPR.

The judge’s Cancellation of Removal grant gave my family the first real chance to make a better life for us and to stay in the U.S. I was seventeen years-old then. When I turned twenty-one years-old, I aged out of the quickest process that was available for me to get LPR status. I turn thirty years-old this year, and I am still waiting, but I have not let this limbo-status stop me.

While waiting for my legal status, I graduated from the University of California Santa Cruz, co-founded undocumented student support groups in Santa Cruz and Napa, organized for access to higher education and immigration reform, and engaged in civil disobedience in an effort to pass the Development, Relief, and Education for Alien Minors (DREAM) Act. The DREAM Act was a federal, bipartisan legislation first introduced in 2001.[ii] Persons who entered the U.S. before turning sixteen years-old, completed high school (or an equivalent degree), and who completed two years of a higher education or of military service would have been allowed onto a pathway to LPR status. Despite hard work and sacrifice, the DREAM Act has failed.

While organizing for the DREAM Act, I earned a living as a server in my parents’ restaurant and as an independent contractor. My parents had opened a restaurant a few months before the immigration judge granted them status. I took on different roles, including serving at the restaurant and catered jobs, designing and updating the website, and editing and printing menus, to-go menus, and business cards. I would manage the restaurant during the only week of the year that my parents travel to Mexico. I deemed the restaurant as my college scholarship and my livelihood upon graduation. I also worked as an independent contractor supporting the work of organizations that fought for the rights of undocumented people: rights to higher education and affordable housing.

In 2012, organizers succeeded in getting the then-Secretary of Homeland Security, Janet Napolitano, to sign the Deferred Action for Childhood Arrivals (DACA) policy memorandum.[iii] DACA requirements are similar to many DREAM Act requirements including having entered the U.S. before turning 16 years old and having graduated from a U.S. high school (or being enrolled in high school or an equivalent program). Beneficiaries are assigned a Social Security Number that may be used to work as long as there is a current Employment Authorization Card. Once I received DACA, I was authorized to work in jobs as an employee rather than as an independent contractor. One important difference is that DACA is a temporary reprieve and does not provide legal or permanent status. Without DACA, I would not have been able to work with Citizenship Legal Services (CLS), a collaborative to help eligible Permanent Residents become U.S. citizens. During my year at CLS, I helped develop the outreach plan and methods for supporting LPRs through the naturalization process. I also volunteered as a Naturalization instructor.

Another benefit that DACA recipients may be eligible for is to travel abroad with Advance Parole, through an Application for Travel Document. Persons can apply to travel for education, employment, or humanitarian reasons. I intended to travel to Mexico based on the latter, the anniversary of my grandfather Juan’s passing. But my plan has had to change.

In 2009, I was in my last year at UC Santa Cruz. One month before I graduated, my grandfather passed after a hard-fought battle against cancer. At that time, there was no way I could travel to Mexico and return to the U.S., unless I crossed the border without permission to travel and return. After receiving DACA, I sought the opportunity to work and get through law school. I planned to apply for Advance Parole to visit him once I graduated from law school.

It is 2017 and I am in my last year of school once again. Now, despite being eligible for the legal process to travel, I do not dare to do so under the current administration because the National Border Patrol Council (NBPC), the union, endorsed Trump. The Border Patrol agents could, albeit arbitrarily, decided to not honor my return. DACA is a discretionary reprieve from deportation; Advance Parole is a discretionary permission to travel. With all the discretion that is inherent in these processes, a border agent could use discretion to not admit me back into the country. NBPC endorsement of the President makes the denial more plausible. If I went and were obstructed I would fight to come back by using all available legal tools. But the fight I have decided to take on is to study for and pass the bar exam — I am holding steadfast to my goal.

The Center’s LPR Cancellation of Removal Toolkit Affected Professional Trajectory

Penn State Law’s Center for Immigrants’ Rights Clinic (“Clinic”) has given me the opportunity to provide attorneys with a tool to defend migrants. I initially applied to the clinic to explore doing policy work. I had done community organizing so I wanted practice in policy work that attorneys can do. Instead, I was assigned to work on a toolkit for practitioners and that was the best assignment for me because it served to confirm that the role I want within immigration work is to directly represent clients.

In 2010, Clinic students created the “Practitioner’s Toolkit on Cancellation of Removal for Lawful Permanent Residents.” During my second year in law school, my clinic partner Lauren Picciallo and I had the opportunity to update the toolkit for 2016. The toolkit is a manual for attorneys who may or may not be familiar with immigration law, but who have taken on a case to defend a person who is a Lawful Permanent Resident (LPR).[iv] The attorney can use the toolkit to assess if the LPR is eligible for Cancellation of Removal, to learn the law within the Third Circuit and the Supreme Court of the United States, as well as to find samples and tips from seasoned attorneys. Essentially, by researching, updating, and editing the toolkit, I learned how to prepare a Cancellation defense. Because my parents were undocumented persons they used non-LPR Cancellation rather than LPR Cancellation. Nonetheless, through the updating process, I learned to differentiate between the two types of Cancellation and to understand the difficulty the attorney had in winning my parents’ removal case.

My parents were placed in removal proceedings after 1996, after President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Through my time at the Clinic, I speculated about many “what-if”, about how my life would be different if my parents had obtained legal representation earlier than they did.

Had an attorney filed for the asylum claim earlier, and been denied earlier, my parents’ may have been eligible for “Suspension from deportation”[v] which had a lower threshold than Cancellation. Suspension also required proof of good moral character, but the other differences are substantial: instead of requiring a 10-year presence prior to being eligible for relief, Suspension required seven years; instead of requiring hardship at the “exceptional and extremely unusual” level, under Suspension the hardship was “extreme”; and under Suspension, hardship could be to a qualifying relative or to oneself.[vi] Had Suspension still been available, maybe my parents’ case would have been adjudicated sooner because the burden of proof would not have been so great and could be shown to my sister and themselves.

Perhaps my LPR application would have been submitted earlier. Maybe then I would not have aged-out. Or maybe then my application would have been submitted prior to April 30, 2001, and I would be covered by 245(i), allowing me to pay a $1,000 fine to get my visa within the United States instead of going to Mexico to get it.[vii] Simply traveling to Mexico to get the visa will trigger a ten-year bar, a requirement for me to remain in Mexico for ten years before being allowed back in with my visa.[viii] I may be eligible for a waiver to the ten-year bar because I am the daughter of a U.S. citizen, but the burden of proof (extreme hardship to the citizen) will be hard to show given that I am dependent on my parents for law school loans.

As I worked on the toolkit, I contemplated all of these “what-ifs.” These “what-ifs” motivated me to finish the toolkit so attorneys can expeditiously and correctly fight to help migrants before any negative policy change is made. Under this administration any immigration reform would likely be for the worse, just like the 1996 immigration reform was for many people. Because of the opportunity to edit the toolkit, I have a deeper appreciation for all of the work that goes into manuals produced for practitioners’ use, and I confirmed that representation is the work that I want to do.

My future practice as a minority member in the legal profession

The Clinic has prepared me to take on the two daunting sayings that I often hear: (1) immigration law is nearly as complex and difficult as tax law, and (2) the laws are always changing. I have the confidence that I am graduating from Penn State knowing that Professor Wadhia’s teachings have given me the skills to navigate between the Immigration and Nationality Act, the Code of Federal Regulation, case law (sometimes unpublished opinions), and agency memoranda. Because of the Immigration Law and the Refugee and Asylum Law courses, I believe I am prepared to navigate the complexity of immigration law, to crossreference and adjust my practice new to amendments and interpretations. I have tested those skills in through my work on the toolkit. These skills are especially important because it cannot be truer today that the laws are always changing; unfortunately, the changes are to the detriment of the migrant community. But because of the Clinic, there are great resources to fight for and defend the migrant community. After working on the toolkit, I know I can look to the Clinic for quality, reliable manuals that guide new immigration attorneys like I am soon to be.

I am an undocumented DACA-recipient. I know firsthand how important it is to receive legal services from authorized providers who have been trained in the law, and I came to Penn State to be trained to practice. Because California passed AB 1024, the California Bar is permitted to admit undocumented law graduates. Thus, even if the Secretary of Homeland Security ends DACA, I may still be licensed in California and able to open my own office and employ people to work for me, for the community.

Although President Donald Trump campaigned with ending DACA, we do not yet know if he will follow through with this promise. So, I have plan A and plan B. Plan A, is to be a fellow at the nonprofit legal service agency. I will open my own practice as Plan B, in case I no longer have the work permit granted by DACA. I may not have legal status yet, but I will continue organizing and helping others obtain remedies for which they are currently eligible, and I will be able to look back to the Clinic and know I have the skills and resources to provide quality and effective services.

N.B. Following the submission of this essay, the Trump administration announced the rescission of DACA on September 5, 2017.[ix]

Citation: Laura Lopez Ledesma, Cancellation of Removal Gave Us a Chance, in Back Into the Future of Immigration: Personal Stories by the Penn State Law Center for Immigrants' Rights Clinic (Shoba Sivaprasad Wadhia ed., 2018). https://doi.org/10.18113/P8immigration7