Congress Reconvenes
Key Issues: Immigration and Homeland
Security, Due Process Reform, and the DREAM Act
Justice Department Finalizes BIA Procedural
Reform Rule; Additional Regulatory Activity Noted
Congress will return from its August recess in early September, with the Senate expected to begin debate immediately on legislation to create a new Department of Homeland Security. Like their colleagues before them in the 106th Congress, members of the 107th Congress are expected to reconvene in Washington after Election Day to attend to unfinished legislative business, including any outstanding appropriations measures.
Key
Issues: Immigration and Homeland Security, Due Process Reform,
and the DREAM Act
Immigration and Homeland Security. The manner in
which our immigration function is reorganized will impact every
aspect of immigration. Lobbyists strongly supports reorganizing
our immigration functions (as restructured in the bipartisan
Senate bill S. 2444) and maintaining these functions as an entity
outside of the proposed Homeland Security Department. Such a
reorganization and placement best meets our security, family
reunification, and business needs and best fulfills our
international obligations with regard to refugees and asylees. If
Congress and the Administration opt to include our nation’s
immigration functions within the proposed new homeland security
department, we believe that our immigration functions should be
kept together in their own division and that S. 2444 should be
used to guide how immigration is organized within the new
department.
The Bush Administration supports placing all of the U.S.
immigration functions and visa processing within the largest
division of the proposed Department of Homeland Security—the
division of Border and Transportation Security. (Along with
immigration, this division also would include Customs, the Coast
Guard, Federal Protective Services, the Transportation Security
Administration, and the Animal, Plant, and Health Inspection
Service.) This placement would make humane services to immigrants
and effective enforcement of our immigration laws nearly
impossible by burying our immigration functions within this large
division. The Administration also supports placing the EOIR
within the new department. Lobbyists also strongly opposes moving
EOIR into Homeland Security. Allowing the immigration courts to
be transferred to the new department would threaten due process,
decrease accountability, and reduce public confidence in the
decisions reached. Lobbyists instead supports the creation of an
independent agency so that our immigration courts are impartial.
Such a separation would allow for meaningful checks and balances.
Finally, Lobbyists also strongly opposes including visa
processing within the authority of the new department. This
function is best left at the State Department. Dividing policy
and process will result in chaos and dysfunction.
As noted above, Congress will return from its summer recess in
early September, with Homeland Security legislation expected to
take center stage for the entire month of September. The House
passed its version of the Homeland Security bill (H.R. 5005)
prior to recess, while the Senate is expected to vote on a bill
in September, with debate on this measure beginning when the
Senate reconvenes.
As background, H.R. 5005 splits up the INS, with services
remaining in Justice and enforcement and inspections going into
the Homeland Security Department. H.R. 5005 also moves the care
and custody of children to the Office of Refugee Resettlement
(ORR), creates a civil rights office as well as an Inspector
General (IG), and moves visa processing policy into Homeland
Security, with State issuing the visas. Finally, H.R. 5005
explicitly rejects national, uniform standards for driver’s
licenses, thereby putting the brakes on plans to turn state
driver’s licenses into a de facto national ID card.
Lobbysists oppose separating services from enforcement and
inspections. While at first blush, such a restructuring appears
to make sense, in actuality, services will be ill-served by this
arrangement. Policy guidance and legal opinions will come from
Homeland Security, and the lack of coordination between services,
and enforcement will harm both functions. While Lobbyists support
keeping all of immigration out of Homeland Security, if
immigration is not kept out of this new agency, then all of
immigration should be included in the new department to ensure
coordination and a single leader in charge. Lobbyists do support
the provisions in the House bill that move the care and custody
of children to ORR, the creation of a civil rights office, and
the rejection of a de facto national ID card. As noted above,
Lobbysists also strongly oppose moving EOIR and visa processing
into Homeland Security.
On the other side of Capitol Hill, the Senate Governmental
Affairs Committee marked-up its version of Homeland Security
legislation (S. 2452) on July 26, just before the summer recess,
and the full Senate is expected to take up the bill in September.
Lobbysists support the immigration provisions in S. 2452, as
passed by the Committee. The bill maintains immigration functions
together in a fifth division and incorporates S. 2444, the
bipartisan Senate bill to reorganize the immigration system, as
the model by which to structure immigration functions. The bill
also moves the care and custody of children out of the INS and
into the ORR, creates a Civil Rights office and an Inspector
General, and also creates within the Department of Justice the
Agency for Immigration Hearings and Appeals that would include
the Board of Immigration Appeals. However, Lobbysists are
concerned with the provision in the bill that would move visa
processing policy into Homeland Security, with State issuing the
visas.
With the Bush Administration opposing the immigration provisions
in S. 2452, along with other provisions in the bill, Lobbysists
expect that the Senate will take up measures that Lobbysists
would oppose. Lobbysists expect that these measures would include
amendments, both in the Bush Administration plan, that would move
all immigration functions back within the Border and
Transportation Security division and bring the EOIR into the
Homeland Security Department. Lobbysists strongly oppose these
measures that the Senate may vote on as separate amendments. They
also are included in S. 2794 that Senator Phil Gramm (R–TX)
introduced shortly before recess and which he may offer as a
substitute to S. 2452. Lobbysists urge Senators to oppose S.
2794.
Due process reform to keep families together. In an effort
to keep American families together, the House Judiciary
Committee, on July 23, passed an amended version of the
bipartisan Family Reunification Act (H.R. 1452). The Act would
restore a limited measure of fairness to a harsh 1996 law that
has torn apart thousands of American families and stripped
long-term legal immigrants of their basic rights. This measure
offers an important down payment on the need to reestablish the
right to a day in court and restores some measure of fairness to
our immigration laws.
The Family Reunification Act would provide a limited opportunity
for certain long-term legal permanent residents to ask a judge to
consider the facts of their case before deciding whether to
deport them from the United States. The Committee-approved bill
includes an amendment by Representative Darrell Issa (R–CA)
that would provide the Attorney General or his Deputy with the
sole discretion to grant cancellation of removal based upon the
expanded grounds of eligibility contained in the bill. The
amendment also includes a sunset provision that would expire in
2005, or three years after the promulgation of final regulations,
whichever is later. Although Lobbysists had pressed for passage
of the legislation without the amendment, final approval could
only be reached by including the language.
Lobbysists urges everyone to let their Representatives and
Senators know that it is time to begin restoring fairness to the
judicial process. The 1996 laws change the rules mid-game, deny
people their day in court and a second chance, and tear families
apart. H.R. 1452 is a very modest proposal that will allow only
individuals with special hardship cases the opportunity to
request relief. The first category of hardship cases involves
permanent residents who were brought legally to the U.S. as young
children and who now face deportation to countries to which they
no longer have any ties. The second category involves permanent
residents who committed minor crimes well before such crimes were
reclassified as “aggravated felonies” by the enactment
of the IIRIRA in 1996. Most 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. H.R. 1452 would not confer automatic relief
or a benefit on any individual. The legislation merely allows
long-term legal permanent residents to explain the facts of their
case and any mitigating factors, giving them hearings that they
could win or lose depending on the merits.
H.R. 1452 is a down payment on needed reform. Lobbysists
encourage citizens to urge their Representatives to support H.R.
1452 and quickly move it to the House floor for a vote, and
should also encourage their Senators to immediately take up this
important issue.
The DREAM Act that would give students a chance.
The Senate Judiciary Committee approved S. 1291, the “Development,
Relief, and Education for Alien Minors (DREAM) Act” in late
June. This legislation addresses the plight of children who were
brought to the United States at a young age and denied the
opportunity to succeed. The bill would eliminate the federal
provision that prohibits states from providing in-state tuition
to undocumented students who have grown up in local communities
and attended local schools. The DREAM Act also creates a path for
selected students to obtain legal permanent residency.
Eligibility for this adjustment is based on the children’s
ages, length of U.S. residence, high school graduation, and
demonstration of “good moral character.” The Act
establishes a new cancellation of removal procedure for which
students who are already in the United States and who meet these
criteria can affirmatively apply.
Lobbysists encourage citizens to advise their Representatives and
Senators know of their support for legislation that will give
children the chance to realize their educational dreams. The
children who will benefit from this legislation have grown up in
America, consider themselves Americans, and want to contribute to
our society. These children also have proven a sustained
commitment to learn English and succeed in our educational
system. This legislation will reverse a cynical, shortsighted
policy that punishes earnest, hardworking children for the
mistakes of their parents.
Lobbysists encourage citizens to contact their Senators to ask
them to move this bill to the Senate floor and pass S. 1291. They
also are urged to ask their Representatives to support the House
companion bill, H.R. 1918.
Justice Department
Finalizes BIA Procedural Reform Rule; Additional Regulatory
Activity Noted
The Justice Department (DOJ), on August 26, 2002, finalized a
rule that will make a number of procedural reforms at the Board
of Immigration Appeals (BIA or Board), including cutting the
number of BIA Members from 23 to 11. The rule also: mandates
single-Member review for the majority of cases; eliminates de
novo review (with the exceptions noted below); and sets
accelerated briefing schedules and tight time limits for the
adjudication of cases. Moreover, the new procedures set forth in
the rule apply retroactively to all pending cases, although, as
discussed in more detail below, the Justice Department backed-off
from eliminating the de novo standard of review with regard to
pending cases.
The final version of the rule offers little ameliorative change
from the February 19 proposed version (NPRM), despite the
submission of numerous, detailed comments in opposition to the
rule by Lobbysists and a number of other organizations. While the
final rule generally conforms to the NPRM, several changes are
worthy of note.
The DOJ did reconsider its proposal for a simultaneous 21-day
briefing calendar. Under the final rule, non-detained cases will
continue to be briefed sequentially, but the briefing schedule
will be reduced to 21 days per party rather than the current 30.
The NPRM’s simultaneous 21-day briefing calendar will be
implemented for detained cases. Consistent with the NPRM,
immigration judges (IJs) will have 14 days to review the
transcript and approve the decision, but the final rule adds
language requiring the BIA Chairman and the Chief IJ to “take
such steps as necessary to reduce the time required to produce
transcripts…and improve their quality.” The NPRM’s
90- and 180-day adjudication deadlines are retained in the final
rule.
The DOJ also backed off from its proposal to replace the current
discretionary summary dismissal language of 8 CFR § 3.1(d)(2)(i)
with new mandatory summary dismissal language, adding that it
will “defer consideration of these issues for possible
action in the future.” However, the NPRM’s restoration
of the previously deleted ground for summary dismissal relating
to “frivolous appeals” is retained in the final rule.
(§ 3.1(d)(2)(i)(D)).
In addition, the Department modified somewhat the NPRM’s
language providing for retroactive application of the new
regulations to pending cases. The final rule contains a notice
provision at § 3.3(f) providing that a party who has an appeal
pending on the rule’s publication date may file a
supplemental brief or statement addressing why his or her appeal
meets the criteria for three-member review under § 3.1(e)(6).
This supplemental material must be filed on or before the rule’s
effective date (September 25, 2002) or the due date for the party’s
brief, whichever is later. Upon the rule’s effective date,
the Board will apply the final rule to all appeals, “with
consideration given to any additional brief or statement filed in
accordance with this provision.” The DOJ did make one
important concession, however, in that it will not apply the new
“clearly erroneous” standard of review regarding
factual findings to pending cases. Hence, while pending cases
will still be subject to all other provisions of the final rule
(with the provision for supplemental briefing noted above), the
Board will continue to engage in de novo factual review vis à
vis pending cases. The final rule also retains the de novo
standard of review for all appeals (pending and future) taken
from a decision of a Service officer.
The DOJ also agreed with Lobbysists’s assertion that it
would be unlawful to implement the proposed regulation without
first amending the Notice of Appeal forms, and notes in the final
rule that it has amended both the EOIR–26 and the EOIR–29
to incorporate the rule’s new requirements.
No change was made to the provision reducing the size of the
Board to 11 Members, and the DOJ provided no additional concrete
standards for carrying out this reduction. The Department did
state that it expects that the “final determinations will be
made on factors including, but not limited to, integrity
(including past adherence to professional standards),
professional competence, and adjudicatorial temperament”….and
that, “[w]hile seniority is an experience indicator, the
Department does not believe that it should be considered a
presumptive factor.”
In other miscellaneous changes from the NPRM, including
provisions newly inserted into the final rule: (1) language from
the NPRM stating that en banc hearings are “disfavored and
shall ordinarily be ordered only or questions of exceptional
importance” has been softened somewhat by replacing it with
the phrase “questions of particular importance”; (2)
the provision relating to the transfer of administrative fines
cases to the OCAHO has been dropped and will be addressed in a
separate final rule; (3) a “technical amendment” has
been added allowing retired EOIR ALJs to serve as temporary Board
Members; (4) at the suggestion of one commenter, a provision has
been added directing the BIA Chairman to limit the location of
oral argument to EOIR Headquarters unless the Deputy AG or his
delegate specifically provides otherwise; and (5) the provision
permitting the Chairman to hold cases pending resolution of
issues before the Supreme Court or the courts of appeals has been
broadened to include pending DOJ regulations and pending en banc
decisions.
Additional language has been clarified and/or modified throughout
the final version of the rule.
The final rule, which takes effect on September 25, 2002, may be
viewed on vkblaw.com
when it becomes available.
In other regulatory news, the Justice Department recently
extended the designations of several countries under the
temporary protected status (TPS) program. The designations for
both Burundi and Sudan were extended until November 2, 2003.
Somalia’s designation was extended until September 17, 2003.
And finally, the DOJ extended Montserrat’s designation until
August 27, 2003.
In addition, federal agencies have issued a variety of new
regulations in recent weeks, impacting everything from the
exchange visitor program to part-time commuter students.
INS:
Part-Time Commuter Students: An August 27 interim rule
allows Mexican and Canadian commuter students to study on a
part-time basis, within the F–1 or M–1 nonimmigrant
visa category, at schools located within 75 miles of the U.S.
border. The rule took effect upon publication and comments are
due by October 28. (67 FR 54941, 8/27/02)
Extension of INA § 212(c) Eligibility in Certain Cases:
An August 13 joint INS/EOIR proposed rule would allow certain
permanent residents who pled guilty or nolo contendere to crimes
before April 1, 1997 to seek relief pursuant to former INA §
212(c), in light of the Supreme Court’s ruling in INS v. St.
Cyr. Comments to the proposed rule are due by October 15. (67 FR
52627, 8/13/02).
Alien Registration: The INS finalized a rule on August 12
that requires certain nonimmigrants to undergo various
registration processes, and imposes sanctions on those who do not
follow the processes. Lobbysists filed comments to the proposed
rule on July 15. (67 FR 52584, 8/12/02).
Concurrent Filing of Forms I–140 and I–485: A
July 31 interim rule provides that Forms I–140 and I–485
may now be filed concurrently when a visa number is immediately
available. In addition, eligible individuals with I–140
petitions pending on July 31, 2002, may now file the I–485
and associated forms. The rule took effect upon publication and
comments are due by September 30. (67 FR 49561, 7/31/02).
Address Notification: A July 26 proposed rule would
require every applicant for immigration benefits to acknowledge
having received notice that he or she is required to provide a
valid current address to the Service, including any change of
address, within 10 days of the change. In absentia removal orders
could flow from a failure to so provide.. (67 FR 48818,
7/26/024).
Adjustment of Status for Certain Indochinese Parolees: A
July 9 proposed rule would implement § 586 of Pub. L. No. 106–429
to provide for the adjustment of status of certain nationals of
Vietnam, Cambodia, and Laos who were paroled into the U.S. before
October 1, 1997, and who are otherwise eligible to receive an
immigrant visa. The rule also proposes to amend 8 CFR § 212.7 to
provide a general rule that the INS will exercise discretion in
favor of the applicant in INA § 212(h) waiver cases that involve
violent or dangerous crimes only in extraordinary circumstances.
Comments to the proposed rule are due by September 9. (67 FR
45402, 7/9/02).
State Department:
DV–2004 Registration Period: The State Department
published a notice in the Federal Register on August 21,
announcing that the mail-in application period for the Diversity
Immigrant (DV–2004) Visa Program will run from October 7,
2002 to November 6, 2002. (67 FR 54251, 8/21/02).
Changes to Exchange Visitor Program for Professors and
Research Scholars: A June 27 proposed rule would: extend the
duration of program participation for J–1 professors and
research scholars from three years to five years; eliminate
extensions beyond the five-year period; and place limits on
repeated program participation. . (67 FR 43264, 6/27/02).