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Border security, backlogged courts and the political divide over immigration

May 27, 2022

Border security, backlogged courts and the political divide over immigration

Author: New York Immigration Lawyer Alena Shautsova

Since the end of the fiscal year 2021, the number of people who stopped trying to cross the southwest  of the United States border has not gone down. People fleeing the consequences of the failed governments in their home countries, climate change and aggressive and uncontrollable gangs. The Trump administration tried to stop the migration by proposing to build a physical barrier and involving Title 42- legal barrier to immigration. The Biden administration rejected the idea of a physical barrier, but continued with the legal barrier, trying to find solutions that would be acceptable for both democrats and republicans. It happened that the “border security” argument became the main point of discussion when both sides are trying to address the much needed immigration reform in the United States.

Undocumented non-citizens

Thousands of undocumented immigrants live in the U.S. Many entered the United States without inspection through the “border”, many overstayed their visas but initially entered “legally”. Some were ordered deported or removed on paper but have never been physically removed from the United States. The issue becomes not only an administrative law issue, but an issue of Human Rights: because of the years- long delays in the processing of the migrants’ cases, undocumented non-citizens often develop deep social and economic ties with the United States, and their physical removal can occur decades after their initial entry becomes more akin to criminal punishment in its consequences rather than administrative citation. When addressing the “security” at the border, one can successfully argue that a physical barrier, can slow down the migration to some extent, but will not and cannot resolve the problem. The problem of global migration can be resolved only through an effective processing system of the non-citizens, and creation of favorable conditions in their home countries, where the need to move and uproot your family would not exist in the first place.

These are hard goals to accomplish, as they require talent, resources, effective management, and dedication. One would have to carefully balance the due process rights of non-citizens, human rights laws, and government interests in establishing procedures that would be effective and fair.  We can all remember draconian measures of Trump administration where children, sometimes, only months-old young, were separated at the border from their parents, many of those children were never united with their parents ever again. https://www.nytimes.com/2020/10/21/us/migrant-children-separated.html. At the same time,  Biden’s administration’s policy to allow non-citizens to entered the United States and then wait for months for their Notices to appear in court, also is not a good solution: the persons were placed in a limbo status where the document that has to initiate the court proceedings against them in a court would not be filed with the court for months and months, preventing persons to present their cases and obtain relief for those who qualify.  It seems such a policy was installed to allow the courts to artificially reduce the amount of pending cases, reporting a smaller backlog…  But it is obvious that without hiring more Immigration judges, border security personnel, and asylum officers, the backlog will not and cannot be eliminated. Cases of non-citizens require human review, they cannot be rubber-stamped by a computer, and human review requires humans, it means MORE personnel. The questions become ones of resources rather than morals.

Why There is No Immigration Reform?

Many can remember promises Biden made during the elections… the US Citizenship Act of 2021 sounded too good to be true… and of course, it never, to date materialized. But why? The obvious answer would be that the parties cannot agree on the terms of the proposals. But if you read the proposals from both sides, at times, they are not so different. So, what is really in the way of passing Immigration reform? Some say it is an issue of border security… However, it is obvious that the “border security” is only one side of the many-sided shape of the Immigrant land shaft we are dealing with. What about people who have been in the United States for decades and paid taxes, and do not have any criminal convictions. Still, even for those people, who are essential workers, TPS holders, seasonal farmers or DACA holders still, there is no relief…. At the time, the Congress can approve in a matter of hours spending bills and surpass any relief necessary to let’s say small businesses in the United States. The logical answer to this question is that neither side wants to pass a bill that would solve an immigration issue in the United States. Perhaps, some believe that administrative violators should not be awarded, some cite economic consequences and labor market collapse in case migrants who are already in the United States, are employed and will receive an official authorization to work and pay taxes… (does not make any sense, but the argument still pops up). Perhaps, the true reason would be that the situation is comfortable for those who have never felt the burden of being a reject, a “half” citizen, who works for people with voting rights and serves them well, but those with the power to change their fellow-non-documented residents fate are reluctant to do so in fear of losing some advantages…

So if this is the true answer, do you believe that a true, comprehensive reform is ever possible? What has to change for it to happen? The author believes that it is possible, but only when the need for it will outweigh the benefits of non-action. Without advocacy, true dedication to reform the society, implement innovations, and spend money on internal issues, the Immigration reform will not happen. Underfunded courts cannot be effective. USCIS, Asylum and border security personnel need salaries and training. Perhaps, the root of the issues lies in the constant ignoring of needs in the administrative sector on a Federal and local level.  

Immigration Reform Build Back Better Bill: Democrats Move With Plan C: Big Step Or Failed Expectations?

November 25, 2021
Immigration Reform: To Be Or Not To Be…

Immigration Reform Build Back Better Bill: Democrats Move With Plan C: Big Step Or Failed Expectations?

Author: NYC Immigration Lawyer Alena Shautsova

The Build Back Better Bill passed by the House of Representatives contains the most comprehensive immigration reform offered to the non-documented residents of the United States in 35 years.

The bill would cost around $100 billion dollars, along with other measures which will cost around a whopping 5 trillion dollars. While some economists suggest it to be the most expensive event in American history, the immigrants are finally having a sense of relief, which may not last for a long time though. Democrats chose to include plan C  with measures that will temporarily protect the immigrants from deportation and which will not lead to a green card or citizenship.

The BBB bill contains three major immigration provisions:

1. The most widely discussed Immigration innovation contained in the BBB bill is known as “Plan C” or parole.  Parole is a deferred action/protection from deportation through which approximately 7 million people living in the United States who are undocumented and who entered the US before January 1, 2011 will be able to reside safely in the US for 5 years  (which is extendable to another five years) and receive work authorization and travel authorization. Parole is not lawful non-immigrant status. It is unclear at this time if it also will serve as “admission” for adjustment of status purposes, and it is unclear if it people in removal proceedings or with outstanding orders of removal will be able to qualify for it.

2. Recapturing unused green cards and reduction in visa backlogs: it is estimated that over 2 million unused green cards will now be recaptured, which will be a big relief to the lottery winners, families and workers who were eligible for permanent status but struck in a backlog of cases.

3. “Super Fees” (some people started referring to these premium fees as super fees, while it is a cute name, it reminded me of  The “Super Size Me”, the famous documentary). Those who are tired of waiting for their priority dates to become current will be able to pay premium fees to speed up their adjustment of status and immigrant visas cases. The fees will depend on the type of visa sought and be ranging from $1,500 to $50,000.

Many Immigration reform advocates and immigrants are disappointed by this proposal as it falls short of delivering comprehensive Immigration reform. The cut-off date of 2011 seems to be too far away, and most applicants with asylum pending status will simply not meet the residency requirement. Also, parole is not a green card or permanent residence. There will be no opportunity to convert it into citizenship, and no opportunity to sponsor family members even if you receive it. It is more like a bargain to keep the worrying immigration community still for a while…

The Republicans, however, are opposing even these curtailed measures, they argue that the labor market is going to crash due to the infusion of millions of new workers; they are asking not to condone “illegal” behavior and not to encourage “illegal” immigration…. https://theeagle.com/opinion/columnists/build-back-better-bad-for-americans/article_b69558c4-480b-11ec-9c82-1ba8aaa58178.html .

While we cannot discard those concerns, the fact remains that the absolute majority of the people who would qualify for the parole are in fact employed, and many are already paying taxes using IRS tax ID numbers. The “newcomers” will not be able to benefit from the BBB bill at all, and recapturing of the visas is only fair as these are not newly created visas but unused visas from the previous years…

The most important question is: Could Democrats do better? Having a controlling majority in the House, and a tie in the Senate with the Vice President technically representing the Democratic party, perhaps now is the time to be more aggressive with their agenda and make the push for more comprehensive immigration reform. Perhaps, it is time to be grateful for the senate parliamentarian ruling, and move on with the plan? It has been done in the past, so why not now? In fact, the 92 scholars called on Harris, Senate Majority Leader Charles Schumer (D-N.Y.) and Senate President Pro Tempore Patrick Leahy (D-Vt.) not to “overrule” Parliamentarian Elizabeth MacDonough, whose rulings are non-binding, but for the presiding officer of the Senate to issue a ruling contrary to her advice.  https://thehill.com/homenews/senate/575347-92-legal-scholars-call-on-harris-to-preside-over-senate-to-include. However, there is no consensus on this Bill even among the Democrats! The only hope is that the disagreeing parties will list at the negotiation table and resolve their differences.

“The House did a very strong bill. Everyone knows that Manchin and Sinema have their concerns, but we’re going to try to negotiate with them and get a very strong, bold bill out of the Senate which will then go back to the House and pass,” said Charles Schumer, the House majority leader. https://www.cnn.com/2021/11/21/politics/chuck-schumer-build-back-better-manchin-sinema/index.html .

He also stated according to the same source, that he would like to see this issue be resolved by Christmas. So, do you think we will have a good Christmas present or immigrants will end up on a “naughty list”?  

For more information on the recent Immigration News, visit our YouTube Channel: https://www.youtube.com/channel/UCBSrIQswMdYh_T1qToEZRrQ

Immigration Reform On The Way: Plan C Voted YES By the House

November 20, 2021

Immigration Reform On The Way: Plan C Voted YES By the House

Alena Shautsova, NYC Immigration lawyer shares updates regarding the Build Back Better Bill passed by the House of Representatives on November 19, 2021. The Bill, among other things, contains Immigration provisions aimed at non-citizens who can demonstrate that they entered the US prior to January 1, 2011 and resided in the US since then. The Bills secures parole for such qualified individuals, which comes with a work permit and travel permit. The Bill also contains provisions regarding recapturing of the visas unused since 1992, and the ability to file for premium processing for family, employment, and investment-based visas.

Learn more here: https://www.youtube.com/watch?v=qxMjPZqYjC4

Immigration in the USA

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Immigration In The USA

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Immigration Reform Reconciliation Bill Text

September 13, 2021

Immigration Reform Reconciliation Bill Text

Author: NY Immigration Lawyer Alena Shautsova

Great news, the Immigration reform Reconciliation Bill is finally here. Among the main things, it creates a residency path for dreamers, and anyone who came to the US at the age of 18 or under and has continuously resided here since January 1, 2021 would be considered a dreamer. To qualify for this path, however, some additional criteria must be met plus a fee of $1500 must be paid (and $250 for each dependent).

Essential workers: those who have continuously resided in the US since January 1, 2021, and have “demonstrated a consistent record of earned income in the United States in an occupation described in the guidance of the Department of Homeland Security entitled ‘Advisory Memorandum on Ensuring Essential Critical Infrastructure Worker’s Ability to Work During the COVID–19 Response’, issued on August 10, 2021, during the period beginning on January 31, 2020, and ending on
25 August 24, 2021.

TPS holders who have continuously resided in the US for 3 years and/or TPS eligible.

Certain criminal convictions will disqualify a person from this opportunity: any offense punishable by a maximum term of imprisonment for more than a year; 3 or more offenses with imprisonment in the aggregate for 90 days or more. A waiver may be available for certain cases. Expunged convictions will not be treated as such expunged automatically for Immigration purposes.

If otherwise eligible, a person who is currently in removal proceedings or with an outstanding order of removal will be able to apply as well. T

The law will take into effect wither 180 days from the date of enactment or May 1, 2022, whichever is earlier.

Also, the reconciliation bill makes provisions for recapturing certain visas, and allowing DV visa applicants to still use them for years 2017-2021 if they were unable to do so due to Trump’s bans or COVID.

This is just a first summary of the Act, and we will provide more details shortly.

Aging-Out Children and Cancellation of Removal

September 17, 2020

Author: USA Immigration lawyer Alena Shautsova

At the law office of Alena Shautsova, we help our clients to use complicated US Immigration laws to achieve their Immigration goals: the US immigration law governing one’s case and affecting one’s life in the US, can be extremely complicated and not obvious. A times, an “obvious” assumption may  actually be disputed by various Immigration bodies controlling one’s case: Immigration Judge, Board of Immigration Appeals, or a prosecutor. Consider this example that deals with aging out children and cancellation of removal.

Cancellation of removal for non-permanent resident is a relief available to some persons who have accumulated 10 years of continuous presence in the US, possess good moral character, and can demonstrate that their removal would result in extreme hardship to their qualifying relatives. A qualifying relative for the purposes of cancellation of removal can be a USC or LPR, spouse, parent or a child (under 21 years old).  To learn more about qualifications for cancellation of removal, please visit our blog: Cancellation of Removal: https://www.shautsova.com/law-publications/simplified-eligibility-requirements-cancellation-removal.html

Imagine that a person, who is not married and who does not have parents in the USA,  has a US citizen child. That child, is the person’s only qualifying relative for the purposes of cancellation of removal. Further, by now, almost everyone knows that cases take a very long time to process in US Immigration courts. It takes even longer to get a final result in an Immigration case for a  relief in the form of cancellation of removal. Will a person who filed for cancellation of removal while the child was under 21, but whose child turned 21 while the case was pending, be still eligible for cancellation or removal? This is an important question one Federal Court gave an answer to in Martinez-Perez v. Barr, No. 18-9573, (Ca. 10th Cir, Jan. 17, 2020).

In Martinez-Perez, respondent-father submitted his application for cancellation of removal well before his daughter’s 21st birthday. In fact his daughter was only 16years old. But, as the fate and the court had it, Mr. Martinez’ final hearing was scheduled about six years later, when his daughter turned 21 years old. Mr. Martinez’ as such, seemed to have lost his eligibility for cancellation of removal. So ruled the Immigration Judge, and the Board of Immigration Appeals. The issue here was, of course, that the statute or the law regarding qualifications for cancellation of removal, is written so that it is not clear, what it actually means: shall the hardship be established at the time of the final decision, or at the time of the application? Imagine that there are two identical cases A and B. Both A and B’s children are under 21 at the time they file for the cancellation of removal. But A’s case is decided within 1 year, and B’s case is postponed for 8 years, without his request, and his child turns 21 before the decision is made…

After careful analysis, the Court came to a conclusion that if an immigrant suffered an unfair delay that resulted in violation of his/her due process rights, he, may qualify for the relief nevertheless. It does not mean, that in every case of aging out child, an immigrant may win the argument that his/her application should nevertheless be granted. But it does give hope for the cases stuck in the processing backlog.

As you can see, you never “know” how a case may turn out… If you need help with your Immigration case, please call to schedule a consultation at  917-885-2261.

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New York Immigration Statistics

July 16, 2020

I would like to share excellent research by the Immigration Council related to immigration in New York: the number of immigrants, their origins, their contributions to society! Below are the quotes from their report:

“New York is often considered one of the greatest cultural hubs in the country, having welcomed immigrants long before the days of Ellis Island. Immigrants now account for nearly one-quarter of the state’s total population and make up more than one-fourth of its labor force. As neighbors, business owners, taxpayers, and workers, immigrants are an integral part of New York’s diverse and thriving communities and make extensive contributions that benefit all.

Nearly a quarter of New York residents are immigrants, while almost one-fifth of residents are native-born U.S. citizens with at least one immigrant parent.

  • In 2018, 4.4 million immigrants (foreign-born individuals) comprised 23 percent of the population.
  • New York was home to 2.3 million women, 2 million men, and 206,980 children who were immigrants.
  • The top countries of origin for immigrants were the Dominican Republic (11 percent of immigrants), China (9 percent), Mexico (5 percent), Jamaica (5 percent), and India (4 percent).
  • In 2018, 3.6 million people in New York (18 percent of the state’s population) were native-born Americans who had at least one immigrant parent.

Nearly three in five immigrants in New York are naturalized U.S. citizens.

  • 2.6 million immigrants (58 percent)had naturalized as of 2018, and 890,099 immigrants were eligible to become naturalized U.S. citizens in 2017.
  • Three-fourths (75 percent) of immigrants reported speaking English “well” or “very well.”

Immigrants in New York are distributed across the educational spectrum.

  • One-third (33 percent) of adult immigrants had a college degree or more education in 2018, while nearly a quarter (24 percent) had less than a high school diploma.  
Education LevelShare (%) of All ImmigrantsShare (%) of All Natives
College degree or more3339
Some college1826
High school diploma only2526
Less than a high school diploma248
Source: U.S. Census Bureau, 2018 American Community Survey 1-Year Estimates.

Over half a million U.S. citizens in New York live with at least one family member who is undocumented.

  • 725,000 undocumented immigrants comprised 15 percent of the immigrant population and 4 percent of the total state population in 2016.
  • 1.2 million people in New York, including 547,802 U.S. citizens, lived with at least one undocumented family member between 2010 and 2014.
  • During the same period, about one in 12 of children in the state was a U.S. citizen living with at least one undocumented family member (351,146 children in total).

New York is home to over 28,000 Deferred Action for Childhood Arrivals (DACA) recipients.

  • 28,910 active DACA recipients lived in New York as of 2019, while DACA has been granted to 118,860 people in total since 2012.
  • As of 2019, 36percentof DACA-eligible immigrants in New York had applied for DACA.
  • An additional 20,000 residents of the state would satisfy all but the educational requirements for DACA, and fewer than 2,000 would become eligible as they grew older.

About one in four workers in New York is an immigrant, together making up a vital part of the state’s labor force in a range of industries.

  • 2.8 million immigrant workers comprised 28 percent of the labor force in 2018. 
  • Immigrant workers were most numerous in the following industries:
IndustryNumber of Immigrant Workers
Health Care and Social Assistance604,741
Accommodation and Food Services301,593
Retail Trade284,432
Educational Services232,726
Transportation and Warehousing224,796
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following industries:
IndustryImmigrant Share (%)
(of all industry workers)
Transportation and Warehousing39
Other Services (except Public Administration)36
Accommodation and Food Services35
Construction34
Health Care and Social Assistance33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.


Immigrants are an integral part of the New York workforce in a range of occupations.

  • In 2018, immigrant workers were most numerous in the following occupation groups:
Occupation CategoryNumber of Immigrant Workers
Transportation and Material Moving280,354
Sales and Related266,206
Office and Administrative Support262,142
Healthcare Support250,294
Management232,654
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • The largest shares of immigrant workers were in the following occupation groups:
Occupation CategoryImmigrant Share (%)
(of all workers in occupation)
Healthcare Support49
Building and Grounds Cleaning & Maintenance43
Construction and Extraction37
Transportation and Material Moving35
Personal Care and Service33
Source: Analysis of the U.S. Census Bureau’s 2018 American Community Survey 1-year PUMS data by the American Immigration Council.
  • Undocumented immigrants comprised 5 percent of New York’s workforce in 2016.

Immigrants in New York have contributed tens of billions of dollars in taxes.

As consumers, immigrants add well over a hundred billion dollars to New York’s economy.

  • New York residents in immigrant-led households had $120.5 billion in spending power (after-tax income) in 2018.

Immigrant entrepreneurs in New York generate billions of dollars in business revenue.

  • 348,547 immigrant business owners accounted for 34 percent of all self-employed New York residents in 2018 and generated $7.8 billionin business income.
  • In the New York-Northern New Jersey-Long Island metropolitan area in 2018, nearly one-third (31 percent) of business owners were immigrants.”

Trump Signs Proclamation To Revoke Visas of Certain Chinse National and Prevent Their Entry Into The US

May 31, 2020
New Immigration Restrictions For Chinese Students and Researchers

Author: NYC Immigration lawyer Alena Shautsova

On May 29, 2020, President Trump issued another proclamation related to the travel restrictions by citizens of China. Trump used its authority under the Immigration and Nationality Act Section 212(f) to limit the entry of non-citizens into the US. In addition, the Proclamation also calls for revocation of visas of those persons who are currently in the United States and who fall under the Proclamation’s frames. However, unlike previous proclamations, this one does not have a time limit and will remain in effect until revoked by the President.

According to the new proclamation, citizens of China seeking to enter the United States for graduate studies and higher, students and researchers will be prohibited to come to the US if they:

— receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or

— have been employed by, studied at, or conducted research at or on behalf of, an entity in China that implements or supports the PRC’s military-civil fusion strategy (MCF).

For an explanation of the MCF please see the Department of State’s website: https://bit.ly/3eyTYB3 . According to DOS: “Key technologies being targeted under MCF include quantum computing, big data, semiconductors, 5G, advanced nuclear technology, aerospace technology, and AI. The PRC specifically seeks to exploit the inherent ‘dual-use’ nature of many of these technologies, which have both military and civilian applications.”

The Proclamation provides for generous exeptions, it does not apply to:

–Undergraduate students;

— Lawful permanent residents of the United States;

–The spouse of a United States citizen or lawful permanent resident;

— A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;

— A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;

–A foreign national who is studying or conducting research in a field involving information that would not contribute to the PRC’s military-civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies;

— A foreign national whose entry would further United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or

— A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Proclamation also does not apply to asylum seekers.

The Proclamation also states that within the next 60 days, more restrictions may follow that are designed to prevent Chinese nationals from acquiring certain sensitive technology.

The Proclamation does not address the EB5 investor’s program or EB1 self-petition program that allow citizens of China to immigrate to the United States. Nor does it address any work-related or family-related immigrant visas.

It is unclear how the candidates for visa revocation will be determined and if there will be any appeal process in case of erroneous determination.

US Immigration Public Charge Chart Explaining Status and Benefits

May 6, 2020

Author: NYC Immigration Lawyer Alena Shautsova

US Public Charge Rule is confusing and complex enough even for a seasoned Immigration practitioner. Public Charge test applies for certain but not all immigration filings/ benefits. For example, VAWA, asylum and refuge seekers are exempt from the public charge test, but most employment and family-based applicants are not. Also not all public benefits would count for the public charge purposes test.

Currently, the test is being used in connection with the adjustment of status filings, filings for extension and change of status and for Immigrant visa filings. Depending on the location of the applicant, the person may have to submit form I 944 (in the US) or form DS5540 (outside the US). Please note that not all the consulates are collecting DS 5540 at this time. Consulates may not even require the form to be submitted as they can ask the applicant at the interview all relevant questions. Dorm DS 5540 cannot be submitted online at this time.

Below you will find an invaluable table composed by the Empire Justice Center that explains in detail which benefits count towards public charge for which immigration filings.

Medical Hardship for Cancellation of Removal

March 31, 2020

Author: NYC Immigration lawyer Alena Shautsova

View our video on the issue:

Best New York Immigration Lawyer
NYC Immigration lawyer
https://www.youtube.com/watch?v=66EnHipb0Ew&t=30s

Establishing medical hardship for the cancellation of removal cases is one of the most important burdens of the person in removal proceedings.

Recently, the Board of Immigration Appeals issued a decision in the Matter of J-J-G, specifying a standard an applicant for cancellation of removal must meet in connection when trying to establish medical hardship to a qualifying relative. The decision specifically addresses a situation where the qualifying relative is argued to have to accompany the applicant in case of his/her removal.

Specifically, the BIA stated that the person who is trying to show that the relative will suffer exceptional and extremely unusual hardship in case of his/her removal must present evidence that the adequate medical help for the serious medical condition is not reasonably available in the country at issue.

The BIA emphasized that general evidence regarding the lesser qualify of medical care and lesser opportunities in the country at issue is insufficient to meet the requireed standard.

As such, the BIA ordered the respondent, a native of Guatemala, with five US citizen children to be removed to Guatemala! From reading the decision, it is apparent that the result was due to lack of preparation and absence of specific evidence addressing the issue of the cost and availability of the treatment for the medical condition for the qualified relative. Nevertheless, the decision will have a grave impact on thousands of the cancellation of removal applications. The text of the decision can be found here.