JOIN IN THE COMMENTS TO THE PROPOSED SORIANO REGULATIONS

JOIN IN THE COMMENTS TO THE
PROPOSED SORIANO REGULATIONS

As you all know, the Department of Justice on July 17 issued proposed regulations
in the Soriano case (65 Fed. Reg. 44476, click here for the regulations).  
Comments to those regulations are due by THURSDAY, AUGUST 17, 2000.

A broad coalition of organizations and advocates are currently working
on a detailed section-by-section comment to the proposed regulations. 
However, this detailed comment has not been completed and may
not be finished in time for wide circulation.  In order to have something
that can be widely circulated as soon as possible, a general policy
statement has been prepared and is set out below.  We will be
submitting both the policy statement (with as many sign-ons as possible)
and the more detailed section-by-section comments.  Organizations are also
encouraged to use the policy statement to create their own comments.

INTERESTED ORGANIZATIONS CAN EITHER USE THE ATTACHED POLICY STATEMENT AS A
TEMPLATE FOR THEIR OWN COMMENT OR BE PART OF A GROUP SUBMISSION BY AGREEING
TO SIGN-ON TO THE ATTACHED POLICY STATEMENT.  Organizations can both submit
their own comments and sign-on to this statement.  We hope that there will
be an opportunity to widely circulate the section-by-section summary for
signatures, but time constraints may limit that effort.

PLEASE USE YOUR ORGANIZATION'S FAX OR E-MAIL LISTS TO SEND THIS DOCUMENT
OUT TO ANY ORGANIZATIONS THAT MAY BE INTERESTED IN BEING PART OF THIS
PROCESS.

Organizations willing to sign on to the attached policy statement as part
of a group submission should contact me at bjohnson@aila.org or at (202)
216-2437. THE DEADLINE FOR SIGN-ONS IS 5:00 pm on TUESDAY, AUGUST 15TH.

Charles Adkins-Blanch
General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike
Suite 2400
Falls Church, Virginia 22041

	Re: Proposed Regulations on Section 212(c) Relief, RIN 1125-AA29

Dear Mr. Adkins-Blanch :

	This letter is submitted by _____ in response to the proposed rules on
section 212(c) relief. We are organizations representing a wide variety of
communities and advocates concerned with the fair administration of the laws
governing deportation and the separation of members of American families.

	Relief under section 212(c) of the Immigration and Nationality Act has long
served as a mechanism for achieving fairness for legal permanent residents
and their families.  The after-the-fact elimination of section 212(c) relief
under the Soriano decision was extremely harmful to these families.   We
welcome the Department’s effort to restore section 212(c) relief, to
eliminate unnecessary litigation and to achieve greater uniformity and
fairness in the application of the deportation laws.  The proposed
regulations, however, fall short of those goals.  We urge the Department to
revise the regulations to be more inclusive and to eliminate inappropriate
and burdensome procedural obstacles to achieving fairness for affected legal
permanent residents and their families.

A. The Regulations Arbitrarily Rely on the Date that Proceedings Were
Commenced

	The regulations condition relief on the date that the INS commenced
proceedings. This date, however, is completely arbitrary.  It depends solely
on when the INS choose to initiate proceedings.  In many cases, persons with
minor convictions were ignored by the INS and proceedings were only
commenced after the individual took a trip or applied for citizenship.  They
should not be barred from relief just because the INS took longer to place
them in proceedings.

	We recognize that the courts are more divided on the issue of AEDPA’s
application to persons whose cases were not yet in proceedings.  Several
courts, however, have ruled that section 440(d) does not apply across the
board to these cases and more courts are scheduled to hear these questions.
It makes little sense to require more years of litigation when the
Department instead could decide these cases on the merits of each individual
’s section 212(c) application.

B. The Regulations Arbitrarily Deny Relief to persons Who Accepted Their
Orders of Deportation.

	It is now three and a half years since the Attorney General’s decision in
Soriano.  During that time legal permanent residents have been counseled by
their lawyers and told by immigration judges, the Board of Immigration
Appeals, and the Attorney General that they have no chance of relief.  They
have also faced the prospect of years in detention if they chose to
challenge the Soriano rule.  Many were deported, causing families to endure
painful years of separation.  Those who did  go to court faced extremely
high expenses as they paid lawyers to challenge the government’s arguments
that the courts had no jurisdiction to hear their claims.

	Now that the Soriano decision has been roundly rejected by the courts, it
is time to right this injustice.  Families should not endure further
separation in cases where the equities show that the legal permanent
resident with a past conviction should be reunited with his or her family.
These persons should be permitted to be paroled back into the United States
so that their claims can be heard on the merits.

	Indeed, we note that a wide spectrum of legislators, including proponents
of the 1996 deportation laws, have recently introduced legislation, H.R.
5062,  that recognizes that many people have been unjustly deported from the
United States.  In this proposed legislation, members of Congress have
required a fair process for reopening the cases of people who were unjustly
deported.  The Department should similarly include such a reopening and
parole process for those legal permanent residents who were deported
pursuant to the Attorney General’s opinion in Soriano.

C. The Proposed Regulations Impose Burdensome Obstacles to Relief

	The proposed rules create burdensome procedural requirements.  First, the
legal permanent resident must somehow find out about the new rule.  Then he
or she has ninety days to file a motion to reopen.  The fact that a motion
to reopen may already be pending or that the case is otherwise pending is
irrelevant.  The motion to reopen must include copies of papers that are in
the court file and which the individual might not have.  Finally, the
individual must also file a request for a stay or else face deportation (and
presumably, exclusion from the relief under the proposed rule.)

	These requirements are unfair and unjustified.  People who have been told
that they have no relief, and who may now be awaiting a bag and baggage
order, or be sitting in detention, or be out working pursuant to release
from indefinite detention, cannot be expected to read the Federal Register.
They will often be unrepresented because their cases have concluded or they
were not able to obtain  counsel.  In some cases, they will have depleted
their resources on prior counsel and will be unable to afford new counsel.
They will not learn of these regulations, and even if they do, will be
ill-prepared to comply with the technical requirements.

	It makes far more sense for the Executive Office of Immigration Review,
which has the files and can identify those who are affected by the new rule,
to reopen cases (with adequate procedures to ensure proper service on the
affected individuals) or to notify affected individuals of their right to
reopen their cases. At the very least, the time limit for filing a motion to
reopen should be greatly expanded.

D. The Proposed Regulations Improperly Exclude Persons Who Lacked a Fair
Opportunity to Pursue their Claim to 212(c) Relief

	The proposed regulations are limited to those who were denied section
212(c) relief by an immigration judge or the Board of Immigration Appeals on
the basis of Soriano and not on “any other basis.”   This restriction
ignores the role that the Soriano decision played in denying legal permanent
residents a full and fair opportunity to pursue their claim for relief from
deportation.  In some cases, side comments about whether a person qualified
for 212(c) relief may have been based on a misreading of the record or other
clear error that, but for Soriano, would have permitted a successful
application for relief.  In other cases, the denial of relief was by the
Attorney General and therefore falls outside the language of the proposed
regulations.  These limitations on relief are unjustified.  Fairness
requires that legal permanent resident be put back to the position they
would have been in had the Soriano opinion never been issued.

	In summary, the regulations should be revised to limit unnecessary
litigation and to achieve a fair determination on the merits of each
individual’s application for relief under section 212(c).

	Thank you for the opportunity to submit these comments.