DOS Cable on Removal and Inadmissibility
R 04018Z APR 97
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMCONSUL SARAJEVO
AMEMBASSY BJUJUMBURA
AMEMBASSY TIRANA
AMCONSUL GUANGZHOU
Unclas State 062429
Visas
E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 20: Removal Procedures
Ref: 96 State 233978
1. Summary: This is cable number 20 in the series providing information on the Immigration Provisions, of PL 104-208. As mentioned in previous cables many of the amendments became effective on September 30, 1996, the day the President signed the bill into law. Some provisions which fall overwhelmingly within the jurisdiction of INS, however, are effective as of April 1, 1997. This cable addresses the relatively few aspects of these provisions which effect consular processing. The two provisions of great interest to consular officers are INA 212(a)(9)(B)(i) - 180 days of unlawful presence in the U.S. and (9)(B)(ii) unlawful presence for more than one year. (9)(B)(i) and (ii) are prospective. The 180 day rule and the one year rule involves unlawful presence in the U.S. on or after 4/1/97. No inadmissibility can attach at this time. End Summary.
2. Exclusion and Deportation Process: Effectively April 1, 1997, the INS has new procedures for the exclusion and deportation of aliens. Under the new “expedited removal” procedure an immigration inspector may order an alien removed without hearing or review if he/she determines that the alien is inadmissible or having engaged in fraud or misrepresentation or because the alien lacks valid documents. An exception is made for aliens who claim a fear of persecution or an intention to apply for asylum. Those who do not satisfy either an asylum officer or an immigration judge that the fear of persecution is legitimate may be removed expeditiously, whereas those who have credible fear of persecution may be placed in normal removal process. The new removal process constitutes a consolidation of the exclusion and deportation proceedings. Changes to the process include among other changes in the form of relief for those found removable, limitations in the scope of judicial review, and amendments to the definition of aggravated felony.
3. 212(A) Grounds of Inadmissibility: In conjunction with these new removal procedures several revisions or amendments to the 212(A) grounds of inadmissibility were enacted. 96 State 239978, cable number 10 in the IIRAIRA series, addressed the revisions to 212(A)(G)(A) and (B) and 212(A)(9)(A),(B), and (C) which are effective as of April 1, 1997. That cable provides the statutory language as well as explanations of the provisions. In addition, the Department has prepared more definitive guidance on these sections but is awaiting INS clearance. That cable will be transmitted as soon as is possible. As communicated previously, 6 (A) does not apply to visa applicants. 6 (B) refers to aliens who have failed to attend a removal hearing. Consular Officers should rely on class lookout for this ineligibility until further guidance is provided. 9 (A) (I) refers to removal administered on and after 4/1/97, thus involve removals under the revised procedures. 9 (A)(11) concerns any orders of removal/deportation including those prior to 4/1/97) and is not exclusively prospective. Consular Officers should rely on class entries pending receipt of further guidance. 9(B) relating to unlawful presence is prospective in its application, so inadmissibility can not arise until 180 days from the 4/1 effective date. 9(C) does include pre-April 1, 1997 actions. But again consular officers should rely on class entries for assessing admissibility.
4. The implementation of these removal and inadmissibility provisions are quite controversial and complicated. They have been and continue to be subject to litigation. Consequently, it has been unusually difficult to obtain, much less, provide meaningful interpretation of these provisions. The Department continues to transmit to the field guidance on these provisions as interpretations further develop.
Minimize considered.
Madeleine Albright