Comments to the Proposed Rule on Section 212(c) Relief

For Certain Aliens in Deportation Proceedings Before April 24, 1996

EOIR No. 127P

65 Fed. Reg. 44,476 (July 18, 2000)

Submitted On Behalf Of:

American Friends Service Committee Immigrant Rights Program

American Immigration Lawyers Association

American Immigration Law Foundation

Capital Area Immigrants’ Rights Coalition

Catholic Charities of San Diego

Catholic Charities-Immigration Legal Services

Citizens and Immigrants for Equal Justice

Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)

Diocesan Migrant & Refugee Services, Inc.

Faith Action

Florida Immigrant Advocacy Center

Global Awareness Group, Sisters of St. Joseph of Northwestern Pennsylvania

Illinois Coalition for Immigrant and Refugee Rights

Immigrant Legal Resource Center

Immigration and Refugee Services of America

The International Center of the Capital Region

International Institute of the East Bay

International Institute of Wisconsin

International Institute of San Francisco

International Institute of RI, Inc.

Las Americas Immigrant Advocacy Center

Lawyers' Committee for Civil Rights Under Law of Texas

Lutheran Immigration and Refugee Service

Miami Youth Co-Op

Midwest Immigrant Rights Center

Minnesota Advocates for Human Rights

National Asian Pacific American Legal Consortium

National Immigration Law Center

National Immigration Forum

National Immigration Project of the National Lawyers Guild

New York Immigration Coalition

New York State Defenders Association

Refugee Law Center, Inc.

Refugio del Rio Grande, Inc.

Southeast Asia Resource Action Center

Vermont Refugee Resettlement Program

VIVE, La Casa

Washington Defenders Immigration Project

August 24, 2000

Charles Adkins-Blanch
General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike
Suite 2400
Falls Church, Virginia 22041

Re:      Proposed Regulations on Section 212(c) Relief

EOIR No. 127P; AG Order No. RIN 1125-AA29

Dear Mr. Adkins-Blanch:

This letter is submitted by the undersigned organizations in response to the proposed rules on section 212(c) relief. We are organizations representing a wide variety of communities and advocates concerned with the fair administration of the laws governing deportation and the separation of members of American families. 

Relief under section 212(c) of the Immigration and Nationality Act has long served as a mechanism for achieving fairness for legal permanent residents and their families.  The after-the-fact elimination of section 212(c) relief under the Soriano decision was extremely harmful to these families.   We welcome the Department’s effort to restore section 212(c) relief, to eliminate unnecessary litigation and to achieve greater uniformity and fairness in the application of the deportation laws.  The proposed regulations, however, fall short of those goals.  We urge the Department to revise the regulations to be more inclusive and to eliminate inappropriate and burdensome procedural obstacles to achieving fairness for affected legal permanent residents and their families.

A. The Regulations Arbitrarily Rely on the Date that Proceedings Were Commenced

The regulations condition relief on the date that the INS commenced proceedings. This date, however, is completely arbitrary.  It depends solely on when the INS choose to initiate proceedings.  In many cases, persons with minor convictions were ignored by the INS and proceedings were only commenced after the individual took a trip or applied for citizenship.  They should not be barred from relief just because the INS took longer to place them in proceedings.

We recognize that the courts are more divided on the issue of AEDPA’s application to persons whose cases were not yet in proceedings.  Several courts, however, have ruled that section 440(d) does not apply across the board to these cases and more courts are scheduled to hear these questions.  It makes little sense to require more years of litigation when the Department instead could decide these cases on the merits of each individual’s section 212(c) application. 

B. The Regulations Arbitrarily Deny Relief to persons Who Accepted Their Orders of Deportation.

It is now three and a half years since the Attorney General’s decision in Soriano.  During that time legal permanent residents have been counseled by their lawyers and told by immigration judges, the Board of Immigration Appeals, and the Attorney General that they have no chance of relief.  They have also faced the prospect of years in detention if they chose to challenge the Soriano rule.  Many were deported, causing families to endure painful years of separation.  Those who did  go to court faced extremely high expenses as they paid lawyers to challenge the government’s arguments that the courts had no jurisdiction to hear their claims. 

Now that the Soriano decision has been roundly rejected by the courts, it is time to right this injustice.  Families should not endure further separation in cases where the equities show that the legal permanent resident with a past conviction should be reunited with his or her family.  These persons should be permitted to be paroled back into the United States so that their claims can be heard on the merits.

Indeed, we note that a wide spectrum of legislators, including proponents of the 1996 deportation laws, have recently introduced legislation, H.R. 5062, that recognizes that many people have been unjustly deported from the United States.  In this proposed legislation, members of Congress have required a fair process for reopening the cases of people who were unjustly deported.  The Department should similarly include such a reopening and parole process for those legal permanent residents who were deported pursuant to the Attorney General’s opinion in Soriano.

C. The Proposed Regulations Impose Burdensome Obstacles to Relief

The proposed rules create burdensome procedural requirements.  First, the legal permanent resident must somehow find out about the new rule.  Then he or she has ninety days to file a motion to reopen.  The fact that a motion to reopen may already be pending or that the case is otherwise pending is irrelevant.  The motion to reopen must include copies of papers that are in the court file and which the individual might not have.  Finally, the individual must also file a request for a stay or else face deportation (and presumably, exclusion from the relief under the proposed rule.)

These requirements are unfair and unjustified.  People who have been told that they have no relief, and who may now be awaiting a bag and baggage order, or be sitting in detention, or be out working pursuant to release from indefinite detention, cannot be expected to read the Federal Register.  They will often be unrepresented because their cases have concluded or they were not able to obtain counsel.  In some cases, they will have depleted their resources on prior counsel and will be unable to afford new counsel.  They will not learn of these regulations, and even if they do, will be ill-prepared to comply with the technical requirements.

It makes far more sense for the Executive Office of Immigration Review, which has the files and can identify those who are affected by the new rule, to reopen cases (with adequate procedures to ensure proper service on the affected individuals) or to notify affected individuals of their right to reopen their cases. At the very least, the time limit for filing a motion to reopen should be greatly expanded.

D. The Proposed Regulations Improperly Exclude Persons Who Lacked a Fair Opportunity to Pursue their Claim to 212(c) Relief

The proposed regulations are limited to those who were denied section 212(c) relief by an immigration judge or the Board of Immigration Appeals on the basis of Soriano and not on “any other basis.”   This restriction ignores the role that the Soriano decision played in denying legal permanent residents a full and fair opportunity to pursue their claim for relief from deportation.  In some cases, side comments about whether a person qualified for 212(c) relief may have been based on a misreading of the record or other clear error that, but for Soriano, would have permitted a successful application for relief.  In other cases, the denial of relief was by the Attorney General and therefore falls outside the language of the proposed regulations.  These limitations on relief are unjustified.  Fairness requires that legal permanent resident be put back to the position they would have been in had the Soriano opinion never been issued.

In summary, the regulations should be revised to limit unnecessary litigation and to achieve a fair determination on the merits of each individual’s application for relief under section 212(c).

Thank you for the opportunity to submit these comments.