DUE PROCESS:

RECENT IMMIGRATION LAWS GO TOO FAR

In 1996, the 104^th Congress passed and the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Portrayed as legislation that would control illegal immigration, IIRAIRA and AEDPA actually include many provisions that significantly affect American families, legal immigrants and others seeking to enter the United States legally. Members of Congress and the general public are recognizing the need to change these laws.  Some of the harshest provisions of IIRAIRA and AEDPA include:

JUDICIAL REVIEW: IIRAIRA contains many provisions that strip the courts of any authority to review Immigration and Naturalization Service (INS) decisions.  Under IIRAIRA, a court no longer can review virtually any discretionary decisions affording relief to eligible individuals.  This “court-stripping” is unprecedented and unconstitutional.

Judicial review of individual decisions by INS officers and of INS procedures and applications should be restored to ensure justice and protect against mistake and abuse.

BARS TO ADMISSIBILITY: IIRAIRA creates new bars to entering the U.S. for people who have been unlawfully present in the U.S. for six months or longer.  Under these new provisions, anyone who tries to enter the U.S. who has previously been in the country unlawfully for more than 180 days, but less than one year, will be barred from reentering the U.S. for three years.  Anyone who is in the U.S. unlawfully for one year or more will be barred from reentering for ten years. The 1996 law provides only very limited waivers and exceptions to these bars.  

The three and ten year bars should be repealed.  At a minimum, the waivers and exceptions to the bars should be expanded to: include parents of U.S. citizens and lawful permanent residents; and provide that the period of time during which a person is in removal proceedings (including any appeal period) will not count toward the period of unlawful presence (since the person is required by law to remain in the U.S. during that period).

“212(c)” RELIEF:  Prior to the passage of IIRAIRA, Section 212(c) of the Immigration and Nationality Act provided relief from deportation for long-term lawful permanent residents who had committed a crime but merited a “second chance.”  In order to be eligible to apply for “212(c)” relief, an applicant had to show that he or she had been a lawful permanent resident for at least seven years, had served less than five years of a sentence if the underlying crime was classified as an “aggravated felony,” had been rehabilitated, and had no other criminal record.  If the applicant was able to establish these factors, the immigration judge had the discretion not to deport the applicant.  However, IIRAIRA completely bars anyone who has been convicted of an aggravated felony from even applying for this type of relief.  This provision essentially denies any opportunity for rehabilitation for long-term permanent residents who have family here and ties to the community.  Reform is needed given the broadly expanded definition and retroactive application of aggravated felony provisions under IIRAIRA.

The ability to apply for “212(c)” relief should be restored for lawful permanent residents who have served a sentence of no more than five years and meet all other requirements.

AGGRAVATED FELONIES: IIRAIRA greatly expands the definition of “aggravated felony” for immigration purposes.  This definition is unrelated to any criminal definitions and, under IIRAIRA, includes non-violent crimes such as shoplifting and check kiting.  Under immigration law, “aggravated felons” are deportable without the possibility of relief from deportation (see “212(c) Relief” above).  Furthermore, the new expanded definitions are retroactive.  Thus, legal immigrants may be placed into deportation proceedings today for minor offenses they committed decades ago.  This is true even if the offense was not defined at the time as an aggravated felony (and therefore may not have been a deportable offense), and the immigrant has served his/her punishment in the criminal law system or had no sentence imposed. 

The law should be amended to narrow the definition of aggravated felony to include only serious offenses.  Moreover, the new definition should not apply retroactively; it should apply only to crimes committed after April 1, 1997, the date of enactment of IIRAIRA.  Immigrants should not have the rules changed on them mid-game.

SUSPENSION OF DEPORTATION:  IIRAIRA significantly changed a discretionary form of relief that was known as “suspension of deportation” (now called “cancellation of removal”).  This relief allowed a judge to suspend the deportation of a person who was not legally residing in the U.S. but who had lived here for a long time and had other extenuating circumstances.  To be eligible to apply for suspension of deportation, an applicant had to prove that he or she had been in the U.S. for at least seven years and that the applicant or his/her U.S. citizen or lawful permanent resident family member would suffer extreme hardship if the applicant were deported.  If the applicant could establish these factors, the immigration judge could prevent the applicant’s deportation.  IIRAIRA made this form of relief much more difficult to obtain.  Under IIRAIRA, an applicant must show that he/she has been in the U.S. for at least ten years and that deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or lawful permanent resident family member – hardship to the applicant is insufficient.  If the applicant cannot meet these extremely high eligibility requirements, the judge has no authority to suspend the applicant’s deportation.

Congress should restore traditional suspension of deportation.  At a minimum, the law should be amended to restore hardship to the applicant as a ground of eligibility for this relief.

EXPEDITED REMOVAL: IIRAIRA creates a new expedited removal process at all U.S. ports of entry.  Under this process, an INS inspector at a port of entry can summarily remove people without a hearing who are attempting to enter the U.S. with fraudulent or no documents. Persons who attempt to enter by “misrepresentation” also may be removed.  Persons summarily removed can be barred from reentering the U.S. for a minimum of five years, and possibly permanently.  IIRAIRA explicitly strips the federal courts of any authority to review the INS’s decision in this area, thereby providing low-level INS employees with broad, unchecked authority to issue final and binding deportation orders.  However, these provisions are overly broad in scope and are being applied to persons who have valid documents, but whom an inspector believes intends to violate the terms of his or her status.  Without any meaningful review, unsuspecting travelers are finding themselves facing summary deportation based only on the subjective opinion of the inspector.

The expedited removal law should be repealed.

DEPORTATION BASED ON SECRET EVIDENCE: IIRAIRA, together with AEDPA, establishes a new court charged only with hearing cases in which the government seeks to deport aliens based on secret evidence submitted in the form of classified information.  The INS already has tried in other courts to use secret evidence against immigrants. In commenting on one such attempt, a court said, “One would be hard pressed to design a procedure more likely to result in erroneous deprivations.  Secrecy is not congenial to truth seeking.  No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it.”  This simple statement is a fundamental requisite of any fair legal system.  Proceedings conducted out of sight of the accused and their attorneys are a feature of totalitarian governments, not of our own.

The law should be amended so that no person should be deprived of liberty on the basis of secret evidence.