RESTORE FAIRNESS AND DUE PROCESS:
1996
IMMIGRATION LAWS GO TOO FAR
THE ISSUE: In 1996, the 104th
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). Touted 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. Under the 1996 laws,
legal immigrants routinely are detained without bond,
deported without consideration for discretionary relief,
restricted in their access to counsel, and barred from
appealing to the courts. The laws expand the grounds of
deportation, subjecting long-term immigrants to mandatory
detention and automatic deportation for relatively
insignificant crimes. Low-level immigration officials act
as judge and jury, and the federal courts lack the power
to review most deportation decisions and INS activities.
Moreover, these laws are being applied retroactively. As
a result, many immigrants have been expelled from their
adoptive country for one-time offenses and youthful
indiscretions that may have occurred many years ago. The
1996 laws are merciless: providing for no second chances,
changing the rules in the middle of the game, and denying
people their day in court. The 1996 immigration laws are
tearing families apart and need to be reformed.
BACKGROUND: The media nationwide has
profiled the cases of many people who have been hurt by
the 1996 immigration laws. Many members of Congress who
supported these laws now recognize that the laws went too
far and must be changed. During the 106th Congress,
numerous bipartisan bills were introduced in the House
and the Senate that responded to this crisis. Senators
Edward Kennedy (D-MA) and Robert Graham (D-FL) introduced
the Immigrant Fairness Restoration Act, S.3120, and
Representative John Conyers (D-MI), introduced the
Restoration of Fairness in Immigration Act, H.R. 4966.
Both of these bills offered comprehensive reform on the
issues of due process, judicial review, detention
standards, refugee protection, and family unification.
Representatives Barney Frank (D-MA) and Martin Frost
(D-TX) introduced H.R. 1485, and Representative Bob
Filner (D-CA) introduced H.R. 3272. These bills would
have repealed certain provisions of the 1996 laws and
would have restored relief and waivers for certain
long-term legal residents subject to deportation.
Introduced by Representative Bill McCollum (R-FL), H.R.
2999 would have provided very limited relief to certain
permanent residents by changing some of the definitions
of aggravated felonies for cancellation of removal
purposes only. In a last minute effort to address at
least some of the most obvious defects in the 1996 laws,
the House passed H.R. 5062, introduced by Representatives
Bill McCollum (R-FL), but Senator Phil Gramm (R-TX)
blocked Senate passage as part of the budget
negotiations.
LOBBYISTS POSITION: Lobbyists support
the following principles:
Make the punishment fit the crime.
Current laws punish legal immigrants out of proportion to
their crimes. Even worse, the laws have been interpreted
to apply retroactively. As a result, thousands of legal
immigrants face removal for offenses that occurred many
years ago, some of which were not even deportable
offenses at the time they occurred. Lobbyists support
restoring balance and fairness to our immigration laws
by:
Not changing the rules in the
middle of the game. Deporting people many years later
for crimes that were not deportable offenses when
they were committed is unjust. Yet, the 1996 laws
were written to apply retroactively. Making laws
retroactive is unconstitutional in criminal law, and
should be avoided in the immigration laws. The
retroactivity of the 1996 laws should be repealed.
Amending the definition of “aggravated
felony” to include only serious offenses.
IIRAIRA greatly expanded the definition of “aggravated
felony” for immigration purposes. This
definition is unrelated to any criminal definitions
and includes non-violent crimes such as shoplifting
and check kiting. The definition should be amended to
ensure that legal immigrants with relatively minor
offenses are not classified as “aggravated
felons” and precluded from all relief from
deportation.
Restoring the definition of “conviction”
and “term of imprisonment”. IIRAIRA
fundamentally changed the meaning of these terms. As
a result, a person who never spent a night in jail is
treated the same as a person who has served years in
prison, and a state judge’s decision to suspend
or withhold sentencing is given no consideration.
Even an expunged conviction is still treated as a
conviction under immigration law. These laws should
be changed to ensure that immigration laws respect
criminal court judge and jury decisions.
Restoring the definition of “crimes
involving moral turpitude” to require the
imposition of a sentence. Prior to the 1996 laws, an
immigrant had to have been sentenced to a year for a
crime involving moral turpitude to be deportable. As
a result of IIRAIRA, this deportability ground is
applied to any crime that could lead to a sentence of
a year - even relatively minor crimes for which no
jail time was served.
Allowing immigrants who have been
wrongly deported, or who were ordered deported
because of the overly-harsh 1996 immigration laws, to
reopen their cases.
Immigration judges should make
decisions based on the facts of the case. The 1996 laws
stripped Immigration Judges of the discretion they
previously had to evaluate cases on an individual basis
and grant relief to deserving immigrants and their
families. Lobbyists support returning integrity to the
process by:
Giving back to long-time legal
residents-who have not committed a serious
offense-the right to apply for relief from
deportation. The 1996 laws took away an immigration
judge’s discretion to consider the facts of a
case, the length of time the person has lived in this
country, or any evidence of rehabilitation.
Immigration judges should be given back the authority
to consider all the facts of a case before making a
decision to deport a legal resident, and should be
given back the discretion to grant relief in
deserving cases.
Repealing the “stop-time”
rule. The 1996 laws created a legal fiction that
immigrants who committed an offense in the past are
not allowed to claim that they had been residing in
this country since that time. As a result, immigrants
face removal based on something they did many years
ago, and are unable to show that since that time they
have been law-abiding members of their community.
These legal fictions have no place in our laws.
Immigration judges should be able to make decisions
based on all the real facts of a case.
Restoring the opportunity for
long-time residents to apply for relief from
deportation if they can prove extreme hardships to
themselves. The 1996 laws took away the ability to
consider the effect of deportation on the person
seeking relief. People who have resided in this
country for many years should be given back the
opportunity to show the effects that removal would
have on their lives.
Ending the use of secret evidence.
Under the 1996 laws, the government is given
unprecedented authority to deport or detain an
immigrant based on evidence they have never seen and
can’t possible refute. In rejecting this
principle, one court has 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.
Federal judges should
have the ability to review agency decisions. The decision
to deport is momentous, especially for refugees fleeing
persecution and for those legal immigrants who have lived
most of their lives in this country. Important issues of
fairness and justice are at stake, and our system of
checks and balances should apply to decisions that the
agency makes by:
Ensuring that there is adequate
judicial review of immigration orders and decisions.
Our judicial system is one of checks and balances and
immigrants deserve their day in court.
Use detention only when needed. The
detention of individuals is an extraordinary power that
should only be used in extraordinary circumstances.
Lobbyists support reforms that would ensure that
detention is not used to needlessly separate American
families by:
Ending the practice of mandatory
detention. The 1996 laws require INS to put
immigrants in jail even when they pose no danger or
flight risk. Lobbyists support reforms that would
require the Attorney General to release an immigrant
from detention if he or she will not pose a danger to
the safety of other persons or of property and is
likely to appear for any scheduled proceeding
Ending the practice of indefinite
detention. As a result of the 1996 laws, thousand of
immigrants are being held in jail indefinitely (the
INS refers to them as “lifers”) because we
cannot remove them from the country. Lobbyists
support reforms that would require the release of
long-term detainees who cannot be removed to their
countries of origin if the Attorney General cannot
negotiate their return with the government of that
country, and providing for regular review of an
immigrant’s continued long-term detention
Recognize immigrants’ strong ties
to their American families and communities. Family
immigration has always been the cornerstone of our
immigration system. Our immigration laws should be
reformed to unite families instead of dividing them by:
Repealing the 3/10-year bars and
the permanent bar to re-entry. Their function is to
divide and separate families, and force people
underground. They do not fulfill their intended
purpose to be a deterrent to people overstaying their
visas.
Modifying and/or expanding waivers
for grounds of inadmissibility. As a result of the
1996 laws, new grounds of inadmissibility were
created and waivers were severely restricted. As an
example, false claims of U.S. citizenship, unlawful
voting, and alien smuggling (for no commercial gain -
as in a relative driving their sibling across the
border) result in a permanent bar with no opportunity
for a waiver or review. This is true regardless of
any mitigating facts. The general policy of creating
broad grounds of inadmissibility with no opportunity
for relief must be changed to allow discretion to
take into account circumstances including innocent
intent, family ties in the United States, or other
humanitarian considerations.
Ending the practice of excluding
legal permanent residents returning from short trips
abroad. Immigrants who leave the United States
temporarily do not necessarily abandon their homes
here, and should not be treated as if they do.
Treating immigrants in the United
States in any status with dignity and respect.
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