Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 98060458 | Dated June 4, 1998
In 1996, the 104th Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). Although touted as legislation that would control illegal immigration, IIRAIRA actually includes many provisions that significantly impact legal immigrants and people seeking to enter the United States legally. Many, including Members of Congress and the general public, have recognized the need to revisit and change certain provisions of IIRAIRA. Some of the harshest provisions of IIRAIRA that need to be changed include:
EXPEDITED REMOVAL: IIRAIRA created a new expedited removal process in effect at all U.S. ports of entry. Under this expedited process, persons attempting to enter the U.S. with fraudulent documents or no documents can be summarily removed from the U.S. by an Immigration and Naturalization Service (INS) inspector at the port of entry. Additionally, persons who attempt to enter by "misrepresentation" also may be removed. The decision of the INS inspector is reviewed by his or her supervisor, but IIRAIRA explicitly strips the courts of any authority to review the INS’ decision to remove the applicant. In addition, a person subjected to expedited removal can be barred by the INS officer from reentering the U.S. for a minimum of five years, and possibly permanently. This decision also is non-reviewable. Furthermore, the new provisions, which were intended to apply only to people who have facially fraudulent documents or no documents, are overly broad in their scope and are being applied to persons with facially valid documents, but whom an inspector believes may have intent to violate the terms of his or her otherwise valid visa.
The law should be amended to narrow the application of the expedited removal process only to those persons with facially fraudulent or no documents.
JUDICIAL REVIEW: IIRAIRA contains many provisions that strip the courts of any authority to review the decision of the INS. Under IIRAIRA, virtually all discretionary decisions affording relief to eligible individuals are no longer reviewable by a court. This "court-stripping" is unprecedented and unconstitutional.
Judicial review of individual decisions by INS officers and of INS procedures and applications should be restored in order to protect against mistake and abuse.
BARS TO ADMISSIBILITY: IIRAIRA created new bars to admissibility to the U.S. for people who have been unlawfully present in the U.S. for six months or longer. Under these new provisions, anyone who tries to enter the U.S. who has previously been in the country unlawfully for more than 180 days but less than one year, will be barred from reentering the U.S. for three years. Anyone who is in the U.S. unlawfully for one year or more will be barred from reentering for ten years. The period of unlawful presence in the U.S. starts to count on April 1, 1997, the date of enactment of IIRAIRA. IIRAIRA provides only very limited and narrow waivers and exceptions to the bars to admissibility.
The waivers and exceptions to the bars should be expanded to, at a minimum:
AGGRAVATED FELONIES: IIRAIRA greatly expanded the definition of "aggravated felony". Immigrants convicted of a crime defined by immigration law as an "aggravated felony" are deportable. In addition, immigrants convicted of an aggravated felony are not eligible for relief from deportation (see "212(c) Relief" below). When the concept of aggravated felony was first introduced in 1988, only the crimes of murder, drug trafficking and firearms trafficking constituted aggravated felonies. Since that time, however, the definition of aggravated felony has been significantly expanded. Under IIRAIRA, crimes as minor as shoplifting now constitute aggravated felonies. Furthermore, the new expanded definition is retroactive. Thus, a legal immigrant today may be put into deportation proceedings for an offense he or she committed 25 years ago, even if the crime was not then defined as an aggravated felony (and therefore may not have been a deportable offense), and the immigrant at that time was punished in the criminal law system. Furthermore, immigrants who 25 years ago committed aggravated felonies now have no relief from deportation (see "212(c) Relief" below).
The law should be amended to narrow the definition of aggravated felony and to make the new definition apply only to crimes committed after April 1, 1997, the date of enactment of IIRAIRA.
"212(c)" RELIEF: Prior to the passage of IIRAIRA, Section 212 (c) of the Immigration and Nationality Act used to provide for a form of relief from deportation for long term lawful permanent residents who had committed a crime. In order to be eligible to apply for "212(c)" relief, the applicant had to show that he or she had been a lawful permanent resident for at least seven years, had served less than five years of a sentence if the underlying crime was classified as an "aggravated felony", had been rehabilitated, and had no other criminal record. If the applicant was able to establish these factors, the immigration judge had the discretion to not deport the applicant. However, IIRAIRA completely bars anyone who has been convicted of an aggravated felony (as defined under IIRAIRA) from even applying for this type of relief. Given the broadly expanded definition of aggravated felony under IIRAIRA, and the retroactive application thereof, reform is necessary.
The ability to apply for "212(c)" relief should be restored for lawful permanent residents who have not been sentenced to more than five years (even if their crime is now defined as an aggravated felony).
SUSPENSION OF DEPORTATION: IIRAIRA contained significant changes to a discretionary form of relief that was known as "suspension of deportation" (now called "cancellation of removal"). This relief allowed a judge to suspend the deportation of a person who was not legally residing in the U.S. but who had lived here for a long time and had other extenuating circumstances. To be eligible to apply for suspension of deportation, an applicant had to prove that he or she had been in the U.S. for at least seven years and that the applicant or his/her U.S. citizen or lawful permanent resident family members would suffer extreme hardship if the applicant was deported. If the applicant could establish these factors, the immigration judge, in his or her discretion, could decide to suspend the deportation. IIRAIRA made this form of relief much more difficult for an applicant to obtain. Under IIRAIRA, an applicant must show that he/she has been in the U.S. for at least ten years and that deportation of the applicant would result in "exceptional and extremely unusual hardship" to a U.S. citizen or lawful permanent resident family member – hardship to the applicant is not sufficient. If the applicant cannot meet these extremely high eligibility requirements, the judge has no authority to suspend the applicant’s deportation.
The law should be amended to, at a minimum, restore hardship to the applicant as a ground of eligibility for this relief.
Cite as AILA Doc. No. 98060458.