Memo on Effective Dates of 1996 Act

Memorandum

HQCOU 90/20

Subject: 1996 ACT EFFECTIVE DATES MEMORANDUM

Date: OCTOBER 7, 1996

To: MANAGEMENT TEAM
REGIONAL DIRECTORS
DISTRICT DIRECTORS (INCLUDING FOREIGN)
CHIEF PATROL AGENTS
OFFICERS IN CHARGE (INCLUDING FOREIGN)
CHIEF, ODTF, GLYNCO, GA
CHIEF PATROL AGENT, BPA, GLYNCO, GA
ASYLUM OFFICE DIRECTORS
SERVICE CENTER DIRECTORS
REGIONAL COUNSEL
DISTRICT COUNSEL

From: OFFICE OF THE GENERAL COUNSEL

On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (1996 Act). All six titles of the 1996 Act have some provisions which are immediately effective and some which become effective in the future. Provisions which are "immediately" effective became effective on September 30, 1996. The list below highlights some of the more important provisions and their effective dates. For a detailed list of all provisions which are immediately effective, please see the attached APPENDIX. Please be aware of the fact that the 1996 Act has renumbered sections of the Immigration and Nationality Act (INA). All references in this memorandum are to the new designations (unless otherwise noted). Refer to the red-lined version of the INA to be sure you are using the proper section of the Act.

TITLE I: Improvements to Border Control, Facilitation of Legal Entry, and Interior Enforcement

SECTION 105 amends section 275 of the Immigration and Nationality Act (INA) to establish a monetary civil penalty for aliens apprehended entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers. This provision is effective APRIL 1, 1997 ("the first day of the sixth month beginning after the date of the enactment of this Act").

* SECTION 108 makes it a crime to engage in a high speed flight from an immigration checkpoint and makes a conviction for such crime a ground for removal. This provision is EFFECTIVE IMMEDIATELY.

TITLE II: Enhanced Enforcement and Penalties Against Alien Smuggling; Document Fraud

* SECTION 203 amends INA Sec. 274(a) to increase the criminal penalties for alien smuggling. This provision is effective with respect to OFFENSES OCCURRING ON OR AFTER THE ENACTMENT DATE.

* SECTION 212 amends INA Sec. 274C to create new document fraud offenses and to provide new civil- penalties for document fraud. This provision applies to the PREPARATION OF APPLICATIONS BEFORE, ON, OR AFTER THE DATE OF ENACTMENT.

TITLE III: Inspection, Apprehension, Detention, Adjudication, and Removal of Inadmissible and Deportable Aliens

* SECTION 302 amends INA Sec. 235 to treat an alien "present in the United States who has not been admitted or who arrives in the United States" as an applicant for admission. This section also sets out the procedure for expedited removal for such aliens, including a credible fear interview by an asylum officer. This provision becomes effective on APRIL 1, 1997.[1]

* SECTION 303 amends INA Sec. 236(c) to require the mandatory detention of aliens: inadmissible by reason of having committed any offense covered in INA Sec. 212(a)(2); deportable by reason of having committed any offense covered in INA Sec. 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D); deportable under INA Sec. 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to one year or more; or inadmissible under INA Sec. 212(a)(3)(B) or deportable under INA Sec. 237(a)(4)(B). This provision becomes effective on APRIL 1, 1997.

* However, it should be noted that sections 303(b)(2) and (3) provide the Attorney General with the opportunity to notify Congress within ten days of enactment of the 1996 Act that there is insufficient detention space to carry out INA Sec. 236(c) and AEDPA Sec. 440(c). The Attorney General intends to provide such a notification, and if such notification is made, SECTION 303(b)(3) will become effective for one year (with the possibility of a one-year extension) beginning on the date of the notification to Congress. SECTION 303(b)(3) provides that the Attorney General shall detain when the alien is released, regardless of whether the alien is released on parole, supervised release, or probation, any alien who: has been convicted of an aggravated felony under INA Sec. l0l(a)(43); is inadmissible by reason of having committed any offense covered in INA Sec. 212(a)(2); deportable by reason of having committed any offense covered in INA Sec. 241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), before redesignation; or inadmissible under INA Sec. 212(a)(3)(13) or deportable under INA Sec. 241(a)(4)(B). The Attorney General may only release an alien if the alien is either inadmissible by reason of having committed any offense covered in INA Sec. 212(a)(2) or deportable by reason of having committed any offense covered in INA Sec. 241 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D), before redesignation, if the alien (i) was lawfully admitted to the United States and satisfies the Attorney Genera1 that the alien will not pose a danger and is likely to appear or (ii) was not lawfully admitted to the United States but cannot be removed because the designated country of removal will not accept the alien and the alien satisfies the Attorney General that the alien will not pose a danger and is likely to appear.

* SECTION 304 renumbers numerous sections of the INA and makes significant changes which become effective on APRIL 1, 1997, pursuant to Sec. 309(a) of the 1996 Act.

* Most significantly, under new INA Sec. 240, deportation and exclusion proceedings are merged into one "removal proceeding" before the immigration judge. The new charging document, entitled a '`Notice to Appear," which is issued and served under INA Sec. 239, and the charge can be either under INA Sec. 212 or INA Sec. 237.

* 1996 Act Sec. 304(b) repeals INA Sec. 212(c), EFFECTIVE APRIL 1, 1997. Until April 1, 1997, a waiver under INA Sec. 212(c) remains available, as amended by AEDPA.

* Certain forms of relief from deportation, formerly known as a waiver under INA Sec. 212(c), and suspension of deportation, are now merged into one form of relief known as "Cancellation of Removal" under INA Sec. 240A. A lawful permanent resident who has been a permanent resident for 5 years, continuously resided in the U.S. for 7 years, and who has not been convicted of an aggravated felony is eligible for Cancellation of Removal under INA Sec. 240A(a).

* A non-lawful permanent resident who has been continuously physically present in the United States for at least 10 years, has good moral character for that period, and establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's U.S. citizen or lawful permanent resident spouse or child (and not to the alien) under INA Sec. 240A(b). There is a limit of 4,000 on the number of aliens who may be granted suspension of deportation under INA Sec. 240A(b), and this limit went into effect on SEPTEMBER 30, 1996, pursuant to Sec. 309(c)(7) of the 1996 Act.

* INA Sec. 240B contains new voluntary departure provisions. An alien may be granted 120 days voluntary departure in lieu of or prior to the completion of removal proceedings, with the posting of a voluntary departure bond being optional. At the conclusion of removal proceedings, the alien may be granted 60 days voluntary departure and the posting of a voluntary departure bond is mandatory.

* SECTION 308(d)(5) repeals AEDPA Sec. 422, which provided for expedited exclusion proceedings for aliens excludable under INA Sec.Sec. 212(a)(6)(C) or 212(a)(7). As of the date of enactment of the 1996 Act, the INA shall be applied as if AEDPA Sec. 422 had not been enacted.

* SECTION 309(a)(1) contains the general effective date for the 1996 Act amendments in Title III-A. This date is the first day of the first month beginning more than 180 days after the date of enactment, which is April 1, 1997. The exceptions to the April 1, 1997 effective date include 1996 Act Sec.Sec. 303(b)(2), 306(c), 308(b)(2)(D), and 308(d)(5), and the other Title III-A sections listed in this document.[2]

* SECTION 309(c)(4) states that in the case where a final order of exclusion or deportation is entered more than 30 DAYS AFTER SEPTEMBER 30, 1996, notwithstanding any provision of INA Sec. 106 to the contrary:

* (A) INA Sec. 106(b) does not apply in the case of judicial review of a final order of exclusion. Rather, the action for judicial review shall be governed by INA Sec. 106(a) and (c) in the same manner as they apply to judicial review of orders of deportation;

* (B) a court may not order the taking of additional evidence under 28 U.S.C; 2347(c);

* (C) a petition for judicial review must be filed within 30 days of the date of the final order of exclusion or deportation;

* (D) the petition must be filed with the court of appeals for the judicial circuit in which the administrative proceedings before the immigration judge were completed;

* (E) there is no appeal of any discretionary decision under INA Sec.Sec. 212(c), 212(h), 212(i), 244, or 245 as these sections were in effect as of the date of enactment of the 1996 Act;

* (F) service of the petition for review does not stay the deportation of the alien unless the court issues a stay;

* (G) there is no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in INA Sec.Sec. 212(a)(2), 241(a)(2)(A)(iii), (B), (C), or (D) (as in effect as of the date of enactment of the 1996 Act), or any offense covered by INA Sec. 241(a)(2)(A)(ii) (as in effect on September 30, 1996) for which both predicate offenses are, without regard to their date of commission, otherwise covered by INA Sec. 241(a)(2)(A)(i) (as in effect on September 30, 1996).

* SECTION 309(c)(5) amended INA Sec.Sec. 240A(d)(1) and 240A(d)(2) (relating to continuous residence or physical presence) and shall apply to notices to appear issued before, on, or after the date of enactment of the 1996 Act. Sec. 240A(d)(1) states that a period of continuous residence or continuous physical presence "shall be deemed to end when the alien is served with a "Notice to Appear" under INA Sec. 239 or when the alien has committed an offense that renders the alien inadmissible under INA Sec. 212(a)(2) or removable under INA Sec. 237(a)(2) or 237(a)(4), whichever is earliest. Sec. 240A(d)(2) states that an alien "shall be considered to have failed to maintain continuous presence in the United States” if the "alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days."

* SECTION 321 amends the definition of "aggravated felony" contained in INA Sec. l0l(a)(43) and is EFFECTIVE IMMEDIATELY.

* SECTION 322 amends INA Sec. l0l(a) by adding paragraph (48) which defines the terms "conviction" and "term of imprisonment" and APPLIES TO CONVICTIONS AND SENTENCES ENTERED BEFORE, ON, OR AFTER THE ENACTMENT DATE.

* SECTION 342 amends INA Sec. 212(a)(3)(B) to exclude an alien who has "incited terrorist activity" "under circumstances indicating an intention to cause death or serious bodily harm." This amendment is EFFECTIVE IMMEDIATELY, REGARDLESS OF WHEN THE ACT OF INCITEMENT OCCURRED.

*

* Section 344 adds new exclusion and deportation grounds for an alien who falsely represents or who has falsely represented himself or herself to be a United States citizen "for any purpose or benefit" under the INA. This provision is EFFECTIVE IMMEDIATELY AND APPLIES TO REPRESENTATIONS MADE ON OR AFTER THE DATE OF ENACTMENT.

* SECTION 348 amends INA Sec. 212(h) to preclude a lawful permanent resident from being granted a waiver under this provision if the alien has been convicted of an aggravated felony since the date of admission as a lawful permanent resident or the alien has lawfully resided in the United States for a period of less than 7 years immediately preceding the date of initiation of removal proceedings. This provision is EFFECTIVE IMMEDIATELY and shall apply to any alien in exclusion or deportation proceedings on the date of enactment unless a final administrative order has already been entered prior to the enactment date.

* SECTION 375 adds two new bars to adjustment of status: (1) an applicant based on an employment based visa petition under 203(b) who is not in lawful nonimmigrant status; and (2) any alien who was employed while the alien was an unauthorized alien, as defined in INA Sec. 274A(h)(3), or who otherwise violated the terms of a nonimmigrant visa. This provision is EFFECTIVE IMMEDIATELY.

TITLE IV: Enforcement of Restrictions Against Employment

* SECTION 411 amends INA Sec. 274A(b) by adding a provision which limits liability for certain technical violations of paperwork requirements [good faith compliance], with exceptions, and applies to VIOLATIONS OCCURRING ON OR AFTER THE DATE OF ENACTMENT.

* SECTION 416 adds a new section subsection (C) to INA 274(e)(2) which authorizes the INS Commissioner to designate certain immigration officers with authority to compel by subpoena the attendance of witnesses or the reduction of documents for employer sanctions cases. This provision is effective IMMEDIATELY.

TITLE V: Restrictions on Benefits for Aliens

* The various sections of Title V generally restrict financial and other benefits available to aliens and requires the INS to verify an alien's status upon the request of an educational institution or a federal, state, or local agency. Title V also expands the public charge exclusion ground. Although many of the sections of Title V are effective immediately, the Secretary for Housing and Urban Development (or the Attorney General depending upon the section) is given time to issue implementing regulations for several of those sections.

TITLE VI: Miscellaneous Provisions

* SECTION 601 amends the definition of “refugee" in INA Sec. l0l(a)(42) to include an alien persecuted (or who has a well founded fear of persecution) for resistance to coercive population control methods as a person persecuted on account of political opinion. It also amends INA Sec. 207(a) by adding a new subsection which caps at 1,000, the number of refugees that may be admitted under that subsection or granted asylum under INA Sec. 208. This provision is EFFECTIVE IMMEDIATELY.

* SECTION 602 amends INA Sec. 212(d)(5)(A) by stating that parole authority may be exercised "only on a case-by-case basis for urgent humanitarian or significant public benefit." This provision is EFFECTIVE IMMEDIATELY.

* SECTION 604 significantly reforms the asylum process as set forth in INA Sec. 208. This provision applies to asylum applications filed on or after APRIL 1, 1997.

* SECTION 621 increases the number of nonimmigrant "S" visas available each year. This provision is EFFECTIVE IMMEDIATELY

.

* SECTION 631 amends INA Sec. 221(c) to extend the validity of immigrant visas to six months. This provision is EFFECTIVE IMMEDIATELY.

* SECTION 632 adds a new subsection (g) to INA Sec. 222 that renders void any nonimmigrant visa of an alien who remains in the United States beyond the period of authorized stay. Such an alien is ineligible to be readmitted to the United States as a nonimmigrant except if the consular office in the alien's country of nationality issues the visa or the Secretary of State finds that extraordinary circumstances exist. This provision is EFFECTIVE IMMEDIATELY.

As soon as policy issues regarding the 1996 Act are resolved, further instructions will be issued.

Signed:
David A. Martin
General Counsel

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ENDNOTES

[1] Section 308(d)(2)(D) strikes the amendment to the definition of “entry” which was contained in section 414(a) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and § 308(d)(5) repeals AEDPA § 422, which provided for the expedited exclusion of aliens excludable under INA §§ 212(a)(6)( C) or 212(a)(7). Therefore, on November 1, 1996, the Immigration and Naturalization Service (INS) will not implement expedited exclusion proceedings for aliens excludable under INA §§ 212(a)(6)( C) or 212(a)(7), particularly for aliens who entered the United States without inspection. However, prior to April 1, 1997, implementing instructions will be issued.

[2] Exceptions to the April 1, 1997 effective date that do not apply until after April 1, 1997, are not listed in this document because further guidance will be issued.