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 nations
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
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 Securitythe 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 drivers licenses, thereby putting the brakes on plans to turn state drivers 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 (RTX) 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 (RCA) 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 childrens 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
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 NPRMs 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 NPRMs 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 NPRMs 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 NPRMs 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 rules 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 rules effective date (September 25, 2002) or the due date for the partys brief, whichever is later. Upon the rules 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 Lobbysistss 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 EOIR26 and the EOIR29 to incorporate the rules 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. Somalias designation was extended until September 17, 2003. And finally, the DOJ extended Montserrats 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.
Part-Time Commuter Students: An August 27 interim rule allows Mexican and Canadian commuter students to study on a part-time basis, within the F1 or M1 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 Courts 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 I140 and I485: A July 31 interim rule provides that Forms I140 and I485 may now be filed concurrently when a visa number is immediately available. In addition, eligible individuals with I140 petitions pending on July 31, 2002, may now file the I485 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. 106429 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).
DV2004 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 (DV2004) 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 J1 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).