AG to Review N-J-B-, Announces Legislation Fix

For Immediate Release

Thursday, July 10, 1997

Administration Proposes Finetuning for 1996 Immigration Law to Mitigate Harsh Effects of Applying New Rules to Pending Cases

Washington – Fulfilling the promise by President Clinton to find a fair and reasonable solution for thousands of Central Americans and others whose cases were pending when Congress changed the standard for humanitarian relief from deportation, Attorney General Janet Reno today announced actions by the Administration to mitigate the harsh effects caused by applying new laws to their pending cases.

Reno announced that she would review a Board of Immigration Appeals (BIA) decision in the Matter of NJB, where BIA ruled that time spent in deportation proceedings could no longer count toward the residency requirement (the “stop-time” rule). By certifying the decision to herself under the law, the Attorney General will review the decision in NJB.

She also announced next week the Administration will transmit to Congress a legislative proposal that would eliminate certain provisions of the law governing suspension of deportation. In practical terms, the proposal would enable applicants for suspension of deportation whose cases were pending prior to April 1, 1997 and who meet the standards which applied at that time, to be granted such relief on a case-by-case basis.

Reno said that she had called several Senators and Members of Congress to brief them on the Administration’s plan, and had informed Speaker Gingrich that if the legislative proposals are not enacted, she is prepared to recommend to the President any available administrative option, including Deferred Enforced Departure, to protect from deportation ABC class members and participants in the Nicaraguan Review Program.

“We must recognized the special circumstance of individuals whose cases were pending when the new law was enacted, and avoid any unfairness that could come from applying new rules to pending cases,“ said Reno. “We want to ensure that the 1996 Immigration Law will not have an unduly harsh effect on those individuals who have made vital contributions to their local communities here in the United States, while putting down deep roots in our nation and abiding by our laws.”

Background

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) severely restricts the availability of suspension of deportation – the remedy traditionally available to deportable aliens who have resided in the U.S. for considerable periods of time. Under the old law, suspension could be granted, at the discretion of the immigration judge, to an alien who has been present in the United States for seven years, shows good moral character, and demonstrates that deportation would cause “extreme hardship” to the alien or to a spouse, parent, or child who is a lawful permanent resident or a U.S. citizen.

The new law increased the length of the time the alien must have been present in the U.S. to ten years, and requires them to demonstrate that their removal would cause “exceptional and extremely unusual hardship” to a lawfully permanent resident or U.S. spouse, parent or child. These provisions only apply to cases initiated on or after April 1, 1997. Two other provisions, however, have been applied to cases pending before April 1, 1997.

Under the old law, an individual could continue accruing time toward the needed seven years, even after the deportation proceedings had commenced. The new law imposes a “stop-time” rule, which requires that the requisite period be achieved before the proceeding begin. In a decision known as NJB, the Board of Immigration Appeals (BIA) held that this rule applies to all cases where the grant of suspension of deportation was not final on the date of enactment.

The law also sets a 4,000 cap on the number of suspensions of deportation that can be granted in any fiscal year, beginning with this year. This immediate application to cases already in the pipeline, many of which are still subject to adjudication under the old standards, has caused disruption in normal case processing because it has imposed a quantitative limit on what had previously been a purely qualitative determination, administered in a decentralized fashion by over 200 immigration judges.

These changes dramatically reduce the number of migrants eligible for the humanitarian relief once offered by suspension. Consequences are most profound for Central Americans who entered the U.S. in the 1980s in response to civil war and political persecution, particularly two groups who had been authorized to remain in the U.S. under various special measures:

Nicaraguans under the Nicaraguan Review Program (NRP) - A Reagan Administration program designed to provide an extra level of review by the INS for Nicaraguans whose applications for asylum had been denied. The program ended in June 1995;

ABC Guatemalans and Salvadorans - As a result of a 1990 court settlement in American Baptist Churches v. Thornburgh (ABC), Salvadoran and Guatemalan asylum-seekers who came to the U.S. in the 1980s were protected from deportation until their asylum claims could be decided under special adjudication procedures.

The Immigration Reform Transition Act

The Administration’s legislative proposal entitled the “Immigration Reform Transition Act of 1997,” will provide a needed transition for certain persons with immigration proceedings begun before the 1996 immigration law took effect but still not yet finally adjudicated.

Under the proposed legislation, applicants for suspension of deportation who were in the administrative pipeline before April 1, 1997, will be required to meet the standards that applied prior to the effective date of the new law. The “Immigration Reform Transition Act of 1997” will ensure that deserving requests for suspension – including those by certain battered spouses and children – filed before April 1 will not be denied because of the 4,000 case cap.

In addition, the legislation will:

Clarify that the provision of the 1996 immigration law requiring a suspension applicant to have satisfied the physical presence requirement before INS instituted deportation proceedings against that individual only applies to cases filed after April 1, 1997. Persons who requested suspension before April 1 will be able to count their physical presence in the United States after INS began deportation proceedings against them.

Specify that all members of the longstanding class action case American Baptist Churches v. Thornburgh who request suspension of deportation will be judged by the pre-April 1 standards.

Give persons with final orders of deportation 180 days to file a motion to reopen their proceedings to request suspension. (Currently, such motions generally must be filed within 90 days of the date an order of deportation becomes final.)

“This administration’s goal has always been to combat illegal immigration while preserving our proud history of legal immigration,” said Reno. “We believe that the ‘Immigration Reform Transition Act of 1997’ will provide the necessary finetuning to the 1996 law to allow it to achieve both goals.”