DUE
PROCESS:
RECENT IMMIGRATION LAWS GO TOO FAR
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). 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three and ten year bars should be repealed.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.
34GR8068 / Last
Updated October 8, 1999