House Judiciary Committee Approves Due Process Reform Bill

7/23/02 AILA Doc. No. 02072304. Cancellation, Suspension & 212(c), Congress, Crimes, Removal & Relief
House Judiciary Committee Approves Due Process Reform Bill

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:

  1. has been a legal permanent residence for not less than 5 years;
  2. has resided in the U.S. continuously for 7 years in any status; and
  3. has not been convicted of an aggravated felony

Permanent Residents Convicted of an Non-Violent Aggravated Felony: The Attorney General may cancel the removal of an alien who:

  1. Has been a legal permanent residence for not less than 5 years;
  2. satisfies the new residency requirements (outlined below);
  3. has never been convicted of murder, rape, sexual abuse of a minor; any other crime of violence; or an attempt or conspiracy to commit such offense;
  4. has been convicted of
    • a single aggravated felony for which the alien was sentenced to serve a term of imprisonment of 4 years or less,
    • multiple aggravated felonies arising out of a single scheme of criminal misconduct, for which the alien was sentenced to serve, in the aggregate, a term of imprisonment of 4 years or less; or
    • 2 aggravated felonies arising out of separate schemes of criminal misconduct for which the alien was sentenced to serve, in the aggregate, a term of imprisonment of 4 years or less, but for neither of which the alien was actually imprisoned;
  5. was not an organizer, leader, manager, or supervisor of others in the aggravated felony or felonies that are the basis of deportation and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. Sec. 848;
  6. has never been incarcerated for any other offense arising out of a scheme of criminal misconduct separate from the offense that forms the basis of deportation;
  7. the agency which prosecuted any aggravated felony or felonies that are the subject of the removal order has not timely filed an objection to such relief on the grounds that the alien has not truthfully provided to the Government all information and evidence the alien has concerning the aggravated felony that is the impetus for the deportation and of any other offense or offenses that were part of the same course of conduct or of a common scheme or plan as such aggravated felony and, on those grounds, object to the cancellation of removal.

Permanent Residents Convicted of an Aggravated Felony Classified as a Crime of Violence: The Attorney General may cancel the removal of an alien who:

  1. Has been a legal permanent residence for not less than 5 years;
  2. satisfies the new residency requirements (outlined below);
  3. has never been convicted of murder, rape, sexual abuse of a minor, or an attempt or conspiracy to commit such offense;
  4. has never been convicted of an aggravated felony that resulted in death or serious bodily injury to a person other than the alien;
  5. has been convicted of
    • a single aggravated felony for which the alien was sentenced to serve a term of imprisonment of 2 years or less,
    • multiple aggravated felonies arising out of a single scheme of criminal misconduct, for which the alien was sentenced to serve, in the aggregate, a term of imprisonment of 2 years or less; or
    • 2 aggravated felonies arising out of separate schemes of criminal misconduct for which the alien was sentenced to serve, in the aggregate, a term of imprisonment of 2 years or less, but for neither of which the alien was actually imprisoned;
  6. was not an organizer, leader, manager, or supervisor of others in the aggravated felony or felonies that are the basis of deportation and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. Sec. 848;
  7. has never been incarcerated for any other offense arising out of a scheme of criminal misconduct separate from the offense that forms the basis of deportation;
  8. the agency which prosecuted any aggravated felony or felonies that are the subject of the removal order has not timely filed an objection to such relief on the grounds that the alien has not truthfully provided to the Government all information and evidence the alien has concerning the aggravated felony that is the impetus for the deportation and of any other offense or offenses that were part of the same course of conduct or of a common scheme or plan as such aggravated felony and, on those grounds, object to the cancellation of removal.

Special Cancellation for LPRs Admitted to the U.S. as children:

  1. has been an LPR for not less than 5 years,
  2. has resided in the U.S. continuously for
    • 7 years after having been admitted in any status before the age of ten; or
    • 7 years after having been admitted in any status before the age of sixteen and prior to commission of any aggravated felony;
  3. has not committed an act of murder, rape, or sexual abuse of a minor or an attempt or conspiracy to commit such offense; and
  4. has not served a term of imprisonment for more than one prior aggravated felony arising out of separate offenses and circumstances from the crime that is the basis for the deportation or removal.

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:

  1. seven years after having been admitted in any status and prior to commission of said aggravated felony; or
  2. ten years after having been admitted in any status, excluding the time-period from commission of said aggravated felony until the end of the period of imprisonment for that offense

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:

  1. 7 years after having been admitted in any status and prior to imprisonment for commission of said aggravated felony, or
  2. 10 years after having been admitted in any status, excluding the time-period of imprisonment for commission of said aggravated felony

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:

  1. any alien who is in removal proceedings on or after the date of enactment;
  2. aliens in removal proceedings before the date of enactment if they would have been eligible for cancellation of removal had the amendments made by this law been in effect during the entire pendency of those proceedings;
  3. aliens who would have been eligible for 212(c) relief as in effect on March 31, 1997, and as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

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.