Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 02072304 | Dated July 23, 2002
On Tuesday, July 23, the House Judiciary Committee approved H.R. 1452, a limited due process reform bill that will restore some measure of fairness to our immigration laws. The Committee approved the bill with an amendment by Representative Darrell Issa (R-CA) that will require new grounds of cancellation of removal to be granted solely by the Attorney General or Deputy Attorney General.
Last week, House Judiciary Chairman James Sensenbrenner (R-WI) and the bill's sponsor, Representative Barney Frank (D-MA), reached a compromise on the final language of a bill that would restore some fairness to legal permanent residents. The compromise would allow special hardship cases to present the facts of their case to an immigration judge. The first category of hardship cases involves permanent residents who were brought legally to the U.S. when still young children and now face deportation to countries they no longer even remember, let alone speak the language. The second category involves permanent residents who committed crimes well before the 1996 enactment of IIRIRA that the Act reclassified as aggravated felonies. Many of these aliens have fully reformed, raised families and become productive members of their communities in the ensuing years. The third category involves aliens who have committed relatively minor crimes. Since an aggravated felony is now defined as any crime of theft or violence for which an alien is sentenced to one year or more of prison (even if the judge suspends the sentence), or any drug trafficking offense (regardless of whether any jail sentence is imposed), crimes such as shoplifting and drunk driving can, in certain instances, carry with them mandatory deportation for permanent residents. While the relief provided by this proposal is very restrictive, its passage would be an important first step toward restoring some measure of fairness to our immigration laws.
The language approved by the Judiciary Committee includes an amendment introduced by Representative Darrell Issa (R-CA). This amendment would require any of the new grounds of cancellation of removal to be approved solely by the Attorney General or Deputy Attorney General, with no further delegation of that authority. The amendment also includes a sunset provision that will expire in 2005, or three years after the promulgation of final regulations, which ever is later. Although AILA had pressed for passage of the legislation without the amendment, final approval could only reached by including the language.
A summary of the legislation with the Issa amendment follows.H.R. 1452 Section by Section
PROVISIONS OF THE FAMILY REUNIFICATION ACT OF 2002
[As amended by the Sensenbrenner/Frank compromise and the Issa amendment]
SEC. 1 SHORT TITLE
This act shall be cited as the Family Reunification Act of 2002
SEC. 2 CANCELLATION OF REMOVAL FOR CERTAIN LONG-TERM PERMANENT RESIDENTS
Permanent Residents Not Convicted of an Aggravated Felony (note: these provisions exist under current law): The Attorney General may cancel the removal of an alien who:
Permanent Residents Convicted of an Non-Violent Aggravated Felony: The Attorney General may cancel the removal of an alien who:
Permanent Residents Convicted of an Aggravated Felony Classified as a Crime of Violence: The Attorney General may cancel the removal of an alien who:
Special Cancellation for LPRs Admitted to the U.S. as children:
Special Residency Requirements –
If an alien commits an aggravated felony after the date of enactment of this Act and serves a term of imprisonment for said aggravated felony, the alien must prove continuous residence for:
If an alien has not committed an aggravated felony after the effective date of this bill but has served a term of imprisonment for a prior aggravated felony, the alien must prove continuous residence for:
No Power of Delegation -
Only the Attorney General or Deputy Attorney General may grant a request for cancellation of removal under the new grounds created by this legislation, with no further delegation.
SEC. 3 CHANGE IN CONDITIONS FOR TERMINATION OF PERIOD OF CONTINOUS RESIDENCE OR CONTINOUS PHYSICAL PRESENCE
For aliens seeking cancellation of removal for other than an aggravated felony, the stop-time rule (Sec.240A(d)(1))is amended to end any period of continuous residence or continuous physical presence when the alien is served a notice to appear under Sec.239(a).
For aliens convicted of an aggravated felony and seeking cancellation of removal, the residency requirements (listed above) effectively continue the existing stop-time rule, with some minor modifications.
SEC. 4 PERMITTING CERTAIN PERMANENT RESIDENT ALIENS TO RETURN WITHOUT SEEKING ADMISSION
Amends the provisions of the INA that require an LPR to be regarded as seeking admission after the commission of a criminal ground of inadmissibility, to apply only if the person has been absent from the United States for more than 30 days.
SEC. 5 RELEASE OF NONDANGEROUS ALIENS
Amends the mandatory detention provisions of Sec. 236(c), to allow the Attorney General to release an alien who can demonstrate, by a preponderance of the evidence, the he/she is prima facie eligible for cancellation of removal and will not pose a danger to national security or the safety of persons or property, and is likely to appear for any scheduled proceeding.
Aliens who are being detained during the removal period (under Sec.241(a)(2)), are eligible for release if they can also show they are prima facie eligible for cancellation of removal.
SEC. 6 CLARIFICATION OF EFFECT OF CONVICTION
Amends the definition of a conviction to include vacated convictions unless such conviction has been vacated on the merits or on grounds relating to a violation of a statutory or constitutional right in the underlying criminal proceeding.
SEC. 7 EFFECTIVE DATE; SPECIAL APPLICABILITY RULE
The amendments made by this legislation will apply to:
SEC. 8 MOTIONS TO REOPEN
Not later than 1 year after the effective date of final regulations, may file a motion to reopen removal, deportation, or exclusion proceedings in order to apply for cancellation of removal under this act if the alien is covered by the special applicability rules of Sec. 7 but is otherwise unable to apply, or reapply for cancellation of removal because the proceedings have been finally concluded or by reason of the procedural posture of the proceedings.
A motion to reopen must set forth prima facie evidence sufficient to establish that the alien is eligible for cancellation of removal.
In the unreviewable discretion of the Attorney General, an alien may be admitted or permitted to enter the U.S. in order to file or prosecute a motion to reopen. Hearings on a motion to reopen may be held in the U.S. or abroad, with the alien appearing in person or by videophone or similar device.
The grant or denial of a motion to reopen shall be in the sole and unreviewable discretion of the Attorney General, and no court shall have jurisdiction to review any denial of a motion to reopen.
SEC. 9 RULES
The Attorney General shall issue an advance notice of proposed rule making no later than 60 days after the date of enactment. The Attorney General shall issue final regulations not later than 90 days after the date of enactment, with an effective date that is not more than 15 days after the date of publication of such final regulations.
SEC. 10 SUNSET
The provisions of this act shall cease to have effect after December 31, 2005, or three years after promulgation of final regulations implementing the law, which ever is later.
SEC. 11 ANNUAL REPORT
The Attorney General annually shall submit an annual report to Congress that shall contain:
(1) the number of aliens who applied for cancellation of removal, release from detention, or any other immigration benefit, based on this Act and the amendments made by this Act;
(2) the number of such applications which were granted;
(3) the crimes committed by such aliens; and
(4) any other subject the Attorney General considers relevant.
Cite as AILA Doc. No. 02072304.