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Section-by-Section Description of the "Restoration of Fairness in Immigration Law Act of 2000"

 

(July 25, 2000)

 

Sec. 1. Short Title - "Restoration of Fairness in Immigration Law Act of 2000;" Table of Contents

 

TITLE I - DUE PROCESS IN IMMIGRATION PROCEEDINGS

 

Subtitle A - Judicial Review in Immigration Proceedings

 

Sec. 101. Judicial Review of Administrative Remedies and Habeas Corpus 6

 

Sec. 102. Judicial Review of Asylum Determinations 7

 

Sec. 103. Judicial Review Concerning Decisions on Apprehension and Detention of Aliens 7

 

Sec. 104. Judicial Review of Decisions Concerning Document Fraud Waivers 7

 

Sec. 105. Judicial Review of Orders Issued in Absentia 7

 

Sec. 106. Judicial Review of Denial of Request for Order of Voluntary Departure 7

 

Sec. 107. Transitional Changes in Judicial Review 7

 

Subtitle B - Fairness in Removal Proceedings

 

Sec. 111. Equitable Burden of Proof for Admissibility 7

 

Sec. 112. Presumption in Favor of Withdrawal of Application for Admission 8

 

Sec. 113. Absences Outside the Control of the Alien 8

 

Sec. 114 Reinstatement of Removal Orders Against Aliens Illegally Reentering 9

 

Subtitle C - Fairness in Detention

 

Sec. 121. Restoring Discretionary Authority to the Attorney General in Cases of Individuals Who Pose No Risk to Safety or of Fleeing 9

 

Sec. 122. Periodic Review of Detention Determinations 9

 

Sec. 123. Limitation on Indefinite Detention 10

 

Sec. 124. Pilot Program to Consider Alternatives to Detention 10

 

Sec. 125. Elimination of Mandatory Detention in Expedited Removal Proceedings 10

 

Sec. 126. Right to Counsel 11

 

Sec. 127 Clarification of Intent of Transitional Provisions on References to Removal Orders 11

 

Subtitle D - Consular Review of Visa Applications 11

 

TITLE II - FAIRNESS AND EQUITY IN CASES INVOLVING

 

PREVIOUS AND MINOR MISCONDUCT

 

Subtitle A - Increased Fairness and Equity Concerning Removal Proceedings

 

Sec. 201. Equitable Definition of Crime Involving "Moral Turpitude" 12

 

Sec. 202. Equitable Application and Definition of "Aggravated Felony"

 

(a). Illicit Trafficking 12

 

(b). Crimes of Violence and Theft Offenses 13

 

(c). Alien Smuggling 13

 

(d). Discretionary Waiver in Cases of Other Minor Felonies 13

 

(e). Conforming Change Concerning Removal of Nonpermanent Residents 13

 

Sec. 203. Equitable Definition of "Conviction" and "Term of Imprisonment" 14

 

Sec. 204. Equitable Definition of Crimes of "Moral Turpitude" 14

 

Sec. 205. Restoration of Fairness in Equitable Relief for Long-Time Legal Permanent Residents (formerly known as section

 

212(c) relief) 14

 

Sec. 206. Restoration of Fairness in Equitable Relief for Other Non-citizens (formerly known as suspension of deportation) 15

 

Sec. 207. Eliminating Unfair Retroactive Changes in Removal Rules for Persons Subject to Pending Proceedings 16

 

Sec. 208. Eliminating Unfair Retroactive Changes in Removal Rules for Persons Previously Removed 17

 

Subtitle B - Increased Fairness and Equity Concerning Five-Year Bars to Admission and Other Grounds for Exclusion

 

Sec. 211. Limiting Five-Year Bar to Admission to Persons Who Willfully Fail to Attend Removal Proceedings 17

 

Sec. 212. Limiting Five-Year Bar to Admission to Persons Who Willfully Violate Student Visa Conditions 18

 

Sec. 213. Limiting Ban on Admissibility to Persons Who Wilfully Make False Claims to Citizenship 18

 

Sec. 214. Equitable Waiver of Inadmissibility for Minor Criminal Offenses 18

 

Sec. 215. Reducing Length of Duration of Bars to Inadmissibility 19

 

TITLE III - ENCOURAGING FAMILY REUNIFICATION

 

Subtitle A - Reuniting Family Members

 

Sec. 301. Visa for Spouses and Children of Permanent Residents Temporarily Waiting for Visa Numbers 19

 

Sec. 302. Refugee Status for Unmarried Sons and Daughters of Refugees 20

 

Sec. 303. Asylee Status for Unmarried Sons and Daughters of Asylees 20

 

Sec. 304. Protection Against Processing Delays 20

 

Subtitle B - Limited Waiver of Grounds of Admissibility

 

Sec. 311. Discretionary Waiver in Cases involving Family Members 21

 

Sec. 312. Discretionary Waiver in Document Cases Involving Family Members 22

 

Sec. 313. Discretionary Waiver to Admit Persons in Unusual Circumstances 22

 

Subtitle C - Eliminating Unfairness and Waste in Section 245(i) Waivers

 

Sec. 321. Permanent Application of Section 245(i) 22

 

Sec. 322. Eliminating Unfairness Created by Temporary Sunset of Section 245(i) 23

 

Subtitle D -- Equitable Procedures Concerning Voluntary Departure

 

Sec. 331. Discretionary Determination of Period of Voluntary Departure 23

 

Sec. 332. Discretionary Determination of Voluntary Departure Bond Based on Individual Circumstances 24

 

Sec. 333. Elimination of Automatic Penalties for Failing to Depart in Accordance with a Voluntary Departure Grant 24

 

Subtitle E - Fairness in Determinations of Public Charge

 

Sec. 341. Equitable Procedures Concerning Public Charge and Affidavit of Support 24

 

TITLE IV - FAIRNESS IN ASYLUM AND REFUGEE PROCEEDINGS

 

Subtitle A - Increased Fairness in Asylum Proceedings

 

Sec. 401. Elimination of Arbitrary Time Limits on Asylum Applications 25

 

Sec. 402. Asylum in Cases of Gender-based Persecution 26

 

Sec. 403. Elimination of Arbitrary Cap on Persons Eligible to Adjust Status From Asylees to Legal Permanent Residents 26

 

Sec. 404. Restoration of Eligibility for Withholding of Removal for Persons Facing Loss of Life or Freedom 26

 

Subtitle B - Increased Fairness and Rationality in Refugee Consultations

 

Sec. 411. Timely Consultation With Respect to Refugee Admissions 27

 

TITLE V - INCREASED FAIRNESS AND EQUITY IN NATURALIZATION

 

AND LEGALIZATION PROCEEDINGS.

 

Subtitle A - Naturalization Proceedings

 

Sec. 501. Increased Authorization of Funds for Naturalization Proceedings 27

 

Secs. 502-506 Naturalization of Cambodian and Vietnamese Military Veterans 27

 

Subtitle B - Parity in Treatment for Refugees From Central America and Haiti 28

 

Subtitle C - Equality of Treatment for Women's Citizenship 29

 

Subtitle D - Fairness in the Treatment for Refugees from Liberia

 

Sec. 531. Adjustment of Status of Certain Liberian Nationals 30

 

Subtitle E - Fairness in Review of Previously Granted Amnesty Rights

 

Sec. 541. Elimination of Limitation on Legalization Litigation 30

 

Subtitle F - Legal Amnesty Restoration

 

Sec. 551 Record of Admission for Permanent Residence in the Care of Certain Aliens 31

 

Subtitle G - Equality of Treatment for Asian American Visa Petitions

 

Sec. 561. Immigration of Certain Aliens Born in the Philippines or Japan and Fathered by U.S. Citizens 32

 

TITLE VI - FAIRNESS AND COMPASSION IN THE TREATMENT OF

 

BATTERED IMMIGRANTS 32

 

TITLE VII - UNUSED EMPLOYMENT BASED VISAS

 

Sec. 701 Recapture of Unused Employment Based Immigrant Visas 35

 

TITLE VIII - MISCELLANEOUS PROVISIONS

 

Sec. 801. Technical and Conforming Change Concerning Board of Immigration Appeals 36

 

Sec. 802. Limiting Forfeiture for Certain Assets Used to Violate INA Where There Was No Commercial Gain 36

 

Sec. 803. Elimination of Ban on State and Local Governments From Preventing Communications with the INS 36

 

Sec. 804. Elimination of Authority to Permit State Personnel to Carry Out Immigration Officer Functions 37

 

Sec. 805. Parole Authority 37

 

Sec. 806. Enhanced Border Patrol Recruitment and Retention 37

 

Sec. 807. Elimination of Denial of Immigration Benefits for Erroneous Asylum Applications 37

 

Sec. 808. Authorization of Appropriations for Implementation of Act 38

 

TITLE VI - EFFECTIVE DATES 38

 

 

TITLE I - DUE PROCESS IN IMMIGRATION PROCEEDINGS

 

Subtitle A - Judicial Review in Immigration Proceedings

 

Sections 101 - 107. This subtitle overturns provisions in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")(1) which strip the courts of jurisdiction over certain immigration-related matters. In particular, IIRIRA eliminated court appeal rights relative to decisions on apprehension and detention of foreign nationals, document fraud waivers, orders issued in absentia, and denial of requests for voluntary departure.(2) Judicial review is not a luxury or a gift; it is the very foundation of our system of government and justice. Moreover, judicial review is not just a tool of fairness and equity, it also is an efficiency tool that makes national uniformity possible and is an essential component of our constitutional system of government.

 

The changes made by IIRIRA have created so many logistical and constitutional problems that many judges have found other ways of hearing at least some of these cases. For instance, the First,(3) Second,(4) and Ninth,(5) Circuits have upheld the right to judicial review of certain habeas corpus deportation orders. Although these cases may help individual foreign nationals, they do not effectively address the broader problem of uniformity or justice. The decision of a district court in habeas corpus proceedings does not necessarily bind the Board or the INS in other cases.(6) This subtitle strikes the court-stripping provisions of IIRIRA and substitutes the pre-IIIRIRA provisions as the procedures for the judicial review.

 

Sec. 101. Judicial Review of Administrative Remedies and Habeas Corpus. -- Restores pre-IIRIRA provisions providing for judicial review in habeas corpus proceedings of final orders of removal. Prohibits review of an order of removal if the petitioner has not exhausted his or her administrative remedies under the INA and its regulations or if the person has departed from the United States after the issuance of the order.

 

Sec. 102. Judicial Review of Asylum Determinations. -- Restores pre-IIRIRA provisions concerning judicial review of exceptions to asylum eligibility.

 

Sec. 103. Judicial Review of Decisions Concerning Apprehension and Detention of Aliens. - Restores pre-IIRIRA provisions authorizing judicial review of decisions on the apprehension and detention of foreign nationals.

 

Sec. 104. Judicial Review of Decisions Concerning Document Fraud Waivers. - Restores pre-IIRIRA provisions concerning judicial review of waiver for inadmissibility on the basis of a final order for a document fraud violation.

 

Sec. 105. Judicial Review of Orders Issued in Absentia. - Restores pre-IIRIRA provisions concerning judicial review of removal orders issued in absentia with regard to (i) the validity of the notice provided to the foreign national, (ii) the reason for the foreign national's not attending the proceedings, and (iii) whether or not the foreign national is removable.

 

Sec. 106. Judicial Review of Denial of Request for Order of Voluntary Departure. - Restores pre-IIRIRA provisions concerning court jurisdiction over an appeal from a denial of a request for the privilege of voluntary departure in lieu of deportation.

 

Voluntary departure permits someone who has been found deportable to leave the United States on his own instead of being escorted out of the country by the INS pursuant to a deportation order. Allowing persons the right to appeal a denial of voluntary departure gives them an opportunity of avoiding the devastating legal consequences of having been deported. For example, IIRIRA made such people inadmissible for five years following a first removal and for 20 years after a second removal.(7)

 

Sec. 107. Transitional Changes in Judicial Review. - Repeals transitional provisions for changes in judicial review that were needed as a result of the enactment of IIRIRA.(8)

 

Subtitle B - Fairness in Removal Proceedings

 

Sec. 111. Equitable Burden of Proof for Admissibility. - Changes the admission seeker's burden of proof in removal proceedings on the issue of admissibility from "clearly and beyond doubt" to "clear and convincing evidence."

 

Before IIRIRA, immigration officers did not have sole authority to exclude a foreign national from the United States. If the inspecting officer was not satisfied that the person seeking admission was "clearly and beyond doubt entitled to be admitted," he or she referred the person to an immigration judge for a full due process hearing on admissibility. The admission-seeker's burden of proof at the hearing was to establish to the satisfaction of the Attorney General that he or she was not inadmissible under any provision of the INA.(9) IIRIRA has specified that this requires the admission-seeker to establish his or her admissibility "clearly and beyond doubt,"(10) making the foreign nationals' burden of proof even higher than the burden of proof that the government has to meet in criminal proceedings. The "clear and convincing" evidence standard is more reasonable and is the same as the standard that the INS has to meet to establish that foreign national already in the United States should be deported.

 

Sec. 112. Presumption in Favor of Withdrawal of Application for Admission. - Creates a presumption in favor of granting a request for permission to withdraw an application for admission at any time to depart from the United States immediately, unless an immigration judge has rendered a decision on the admission seeker's admissibility. Permission may only be denied when denial is warranted by unusual circumstances. After an immigration judge has rendered a decision on admissibility, permission may still be given as a matter of discretion, but there would be no presumption in favor of granting the request.

 

The purpose of granting permission to withdraw an application for admission is to make it possible for the admission-seeker to avoid the consequences of a forced removal by leaving voluntarily. Among other things, under IIRIRA, a forced removal would bar the person from returning to the United States for at least five years.(11) A similar device is employed in cases where the person faces the possibility of deportation from the United States.(12) In that context, the privilege is called "voluntary departure." IIRIRA provided authority to grant requests for permission to withdraw an application for admission,(13) but it did not provide a presumption in favor of granting the requests.

 

Sec. 113. Absences Outside the Control of the Alien. -- Under IIRIRA, a person with lawful permanent resident status is subject to a full inspection upon returning from a trip abroad if he has been absent from the United States for a continuous period of 180 days.(14) This section changes the time period from 180 days to a year (or longer if the absence is due to circumstances beyond the person's control).

 

IIRIRA has caused the detention of long-time permanent residents who temporarily leave the U.S. for business trips or vacations. Upon their return, they are detained and placed in removal proceedings for minor offenses that occurred long ago.

 

Sec. 114. Reinstatement of Removal Orders Against Persons Illegally Reentering. --

 

Under IIRIRA, immigrants who reenter the United States after being previously removed must immediately be removed from the country without the foreign national having any opportunity for review of the case by an Immigration Judge.(15) This provision addresses the harshness of IIRIRA by giving the individual an opportunity to have the previous removal order reviewed by an immigration judge prior to reinstatement of the removal order. In the course of such a review, the individual may seek any relief otherwise available under the INA.

 

Subtitle C - Fairness in Detention

 

Sec. 121. Restoring Discretionary Authority to the Attorney General in Cases of Individuals Who Pose No Risk to Safety or of Fleeing. -- Restores pre-IIRIRA law granting the Attorney General discretionary authority to determine when its appropriate to detain immigrants in or after proceedings based on a criminal offense where the person does not pose a risk to persons or property and are likely to appear for future proceedings. Custody determinations would be subject to administrative and judicial review. Additionally, such individuals could challenge their detention by filing a writ of habeas corpus.

 

Sec. 122. Periodic Review of Detention Determinations. -- Immigrants who face deportation after having completed their criminal sentence are often left languishing indefinitely in INS detention if their deportations cannot be effectuated. The frustration and anger that this causes was dramatically illustrated last year in an incident at a St. Martin Parish jail in St. Martinville, Louisiana, when a group of rebellious Cuban inmates held two sheriff's deputies and a jail warden hostage until arrangements were made to return them to Cuba. These inmates had been in custody since the completion of their sentences. Some of them had completed their sentences as far back as 1992. Nationwide, the INS holds about 3,800 people in indefinite custody for crimes ranging from petty theft to murder.

 

Most of these individuals are from countries such as Cuba, Vietnam, and Cambodia, whose governments are not willing to accept them. Although IIRIRA granted the Attorney General the authority to release persons she cannot deport within 90 days, until recently, no mechanism existed to require the periodic review of these cases to determine whether detained individuals are eligible for release. The INS recently issued a new policy requiring the periodic review of long-term detention cases. This section codifies the new release policy and establishes mandatory review of cases every 90 days. Release determinations would be subject to administrative and judicial review. The provisions do not authorize the release of persons who pose a risk to the community or are unlikely to comply with their orders of removal.

 

Sec. 123. Limitation on Indefinite Detention. - Establishes a one year ceiling on the time an individual can be detained while waiting to be removed after he or she has completed his or her criminal sentence, so long as the individual is not a risk to the community and is likely to comply with the removal order. This section is premised on the principal that it is unfair to continue to punish individuals who have completed their criminal sentences.

 

Sec. 124. Pilot Program to Consider Alternatives to Detention. - Requires the Attorney General to establish a pilot program in three district offices to determine the viability of supervision of foreign nationals subject to detention under the INA through means other than confinement in a penal setting.

 

It can be dangerous to house immigrant families in facilities which also house serious criminal offenders, and such detentions can become the equivalent of a prison sentence for people who have not committed a crime. For example, when Adelaide Abankwah fled the threat of genital mutilation in her native Ghana, she thought she would find a better life in the United States. When she arrived, she was arrested and taken to a detention center where she was incarcerated for the next two years and three months- more time than many violent felons serve.

 

Sec. 125. Elimination of Mandatory Detention in Expedited Removal Proceedings. - Provides that foreign nationals detained during expedited removal proceedings may be released pending a decision on whether they should be removed from the United States. Release in such cases would be permitted on bond or on conditional parole.(16)

 

IIRIRA requires mandatory detention for all individuals involved in expedited proceedings.(17) Many of such persons are asylum seekers, and many asylum seekers are women and children. Notwithstanding the fact that such persons are not criminals and have done nothing wrong, under IIRIRA, they face the prospect of indefinite detention with criminals at a penal institution. This section recognizes that such individuals should be released unless they are flight risks, which would be determined on a case-by-case basis.

 

Sec. 126. Right to Counsel. -- Currently an attorney who agrees to represent someone in a bond hearing at a remote detention center may end up being required by the immigration judge to continue representing the person if he or she is not released from detention. This practice has resulted in a reluctance by some attorneys to accept detention cases because they cannot withdraw their appearance later. This section would allow attorneys, with the consent of their clients, to make limited appearances in bond, custody, detention, or removal immigration proceedings and thus ensure that persons have the privilege of being represented by counsel. The right to counsel would be at no expense to the government.

 

Sec. 127. Clarification of Intent of Transitional Provision on References to Removal Orders.-- Sec. 309(d)(2) of IIRIRA was a transitional reference resulting from the creation of removal proceedings to replace exclusion and deportation proceedings. The transitional reference specifies that any reference to an order of removal shall be deemed to include a reference to an order of exclusion or an order of deportation. To make clear that Sec. 309(d)(2) of IIRIRA was solely intended to standardize the terms of art used within the INA and was not designed to support the retroactive application of any particular provision, this section clarifies that nothing in section 309(d)(2) of IIRIRA should be construed to apply retroactively to any of the changes made to the INA by IIRIRA.

 

Subtitle D - Consular Review of Visa Applications (Sections 131 - 132)

 

This subtitle incorporates the text of the "Consular Review Act of 1999" (H.R. 1156), which was introduced by Rep. Frank (D-MA) on March 17, 1999. It would require the Secretary of State to set up a Board of Visa Appeals that would have five members. The Board would have the authority to review any discretionary decision of a consular officer regarding the denial, cancellation, or revocation of an immigrant or nonimmigrant visa or petition, or the denial of an application for a waiver of any ground of inadmissibility under the INA. If the Board, finds that the consular officer's decision is contrary to the preponderance of the evidence, the Board could overrule or remand the case for further proceedings. The subtitle also provides that the Secretary of State would charge and collect a fee for review before the Board which will be sufficient to cover the administrative costs. In addition, language has been added to the Frank bill to provide that visas are not to be denied on a discriminatory basis within any individual country on account of race, religion, place of birth, gender, sexual orientation, or disability.

 

TITLE II - FAIRNESS IN CASES INVOLVING PREVIOUS AND MINOR MISCONDUCT

 

IIRIRA included a wide variety of changes which made it far easier to deport or exclude non-citizens for minor criminal violations which occurred many years ago. Among other things, IIRIRA lowered the sentence and monetary amount thresholds for many of the crimes on the list of aggravated felonies and other excludable or deportable offenses and did so on a retroactive basis -- meaning that offenses that were not previously deportable became deportable retroactively in 1996, even if they occurred in earlier years - and largely eliminated the Attorney General's discretion to make humanitarian exceptions to such deportation orders, even for long-time legal residents. IIRIRA also included harsh new five-year bars to admission for unintentional immigration offenses.

 

The changes made by IIRIRA have led to a wide variety of inequitable results. For example, in the spring of 1997, Jesus Collado, a 43-year-old legal resident and restaurant manager from the Dominican Republic was returning from a vacation to his homeland when he was arrested and imprisoned by immigration agents. He was charged with deportability under IIRIRA because twenty-three years earlier, when he was only19 years old, he had been convicted for having sex with his teenage girlfriend (IIRIRA made the offense "sexual abuse to a minor" an aggravated felony for immigration purposes(18)). In another case, Rev. Frank Almonte, a well-known Hispanic television evangelist who has been a lawful permanent resident of the United States for 22 years, was imprisoned and charged with deportability because he had packed three jars of "appetite enhancer" pills into his son's suitcase on a recent trip home from the Dominican Republic. The pills, which are freely and legally available from pharmacists in the Dominican Republic, constituted a "controlled substance" of steroids in the U.S. -- a relatively low-level drug violation. Title II is intended to eliminate excesses of this nature and restore a greater semblance of equity and fairness into our immigration system.

 

Subtitle A - Increased Fairness and Equity Concerning Removal Proceedings

 

Sec. 201. Equitable Definition of Crime Involving "Moral Turpitude." - Eliminates exclusion from the United States under IIRIRA for acts of moral turpitude which may have constituted the elements of a crime but have not led to a conviction.(19) Limits the exclusion ground to cases in which the applicant has actually been convicted of the offense. This section also limits the applicability of the exclusion ground to offenses for which the person was sentenced to imprisonment for at least one year (as opposed to six months under IIRIRA).(20)

 

Sec. 202. Equitable Application and Definition of "Aggravated Felony" -

 

(a). Illicit Trafficking. --Excepts a single offense of simple possession of a controlled substance from the "aggravated felony" category created by IIRIRA(21) if it is the person's first controlled substance offense.

 

Under federal law, a simple first time possession offense is ordinarily not a felony and the maximum sentence for such offenses is less than a year. This subsection conforms immigration law to federal law by excepting a single offense of simple possession from being considered as an "aggravated felony."

 

(b). Crimes of Violence and Theft Offenses. -- Changes the definition of violence and theft offenses that are considered to be "aggravated felonies(22)" under IIRIRA from offenses for which the sentence was imprisonment for at least one year to offenses for which the sentence was imprisonment for at least five years.

 

Before IIRIRA, crimes of violence and theft offenses were not considered to be aggravated felonies unless they were subject to a five-year term of imprisonment. IIRIRA reduced this to a one-year term of imprisonment.(23)

 

(c). Alien Smuggling. -- Limits the "alien smuggling" category in the definition of an "aggravated felony" to offenses committed for the purpose of commercial gain.(24)

 

Although IIRIRA provided that a first offense of alien smuggling is not an aggravated felony if it was carried out to assist the smuggler's spouse, child, or parent,(25) it still subjects non-citizen repeat offenders to permanent removal for helping a spouse, child, or parent to illegally enter the United States. This simply is too harsh for such an offense; a mother should not be deported and barred forever from returning because she tried to reunite with her child. This subsection reflects the view that permanent removal from the United States is only appropriate in cases involving professional smugglers.

 

(d). Discretionary Waiver in Cases of Other Minor Felonies. -- Grants discretionary authority to the Attorney General to disregard, for immigration purposes, convictions for aggravated felonies that did not result in incarceration for more than one year. This section makes relief available in cases where the person facing permanent removal from the United States committed a relatively minor offense.

 

(e). Conforming Change Concerning Removal of Nonpermanent Residents. - Repeals a provision that bars nonpermanent resident aliens who have been convicted of an aggravated felony from being eligible for discretionary relief from removal.

 

This bar, which was created by IIRIRA,(26) is superfluous under current immigration law. Under the INA as presently written, people who have aggravated felony convictions in their records are virtually ineligible for any form of relief from removal in any event, so the bar has no operative effect. The bar presents a problem, however, with respect to the provisions included in this title which provide relief for people whose aggravated felony convictions that were based on relatively minor offenses.

 

Sec. 203. Equitable Definition of "Conviction" and "Term of Imprisonment." - Modifies IIRIRA's definition of "conviction" to provide that an adjudication or judgment of guilt that has been expunged, deferred, annulled, invalidated, withheld, or vacated; an order of probation without entry of judgment; or any similar disposition will not be considered a conviction for purposes of the INA. This section also strikes the provision in that definition which states that any reference to a "term of imprisonment" or "sentence" is deemed to include the period of incarceration or confinement ordered by the court regardless of any suspension of the imposition or execution of the imprisonment or sentence.

 

Under IIRIRA's definition of a "conviction," it does not matter whether an adjudication of guilt has been withheld.(27) This means that a person can suffer the immigration consequences of a felony conviction even in situations where the criminal court judge tried to give the person a break. IIRIRA also specified that any reference to a "term of imprisonment" or "sentence" is deemed to include the period of incarceration or confinement ordered by the court regardless of any suspension of the imposition or execution of the imprisonment or sentence.(28)

 

Sec. 204. Equitable Definition of Crimes of "Moral Turpitude." - Limits deportation for conviction of a crime involving moral turpitude to cases where the conviction resulted in the foreign national's incarceration for a period exceeding one year.

 

IIRIRA provided for deportation when a foreign national is convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed.(29) This makes it possible to deport someone who has committed a relatively minor offense. This section limits deportation on this basis to cases where the offense was serious enough to result in incarceration for a year or more.

 

Sec. 205. Restoration of Fairness in Equitable Relief for Long-Time Legal Permanent Residents (formerly known as section 212(c) relief) - Restores discretion to immigration judges to grant relief from removal to long-time legal permanent residents who have committed minor criminal offenses. Also, repeals IIRIRA's stop-time rule so that lawful permanent residents can continue to accumulate residency time for purposes of the seven-year eligibility requirement so long as they maintain their permanent resident status in the U.S.

 

IIRIRA(30) deleted former section 212(c) of the INA, which permitted lawful permanent residents to seek discretionary relief from exclusion and deportation, so long as they had maintained their domicile in the U.S. for at least seven consecutive years, and substituted a far narrower form of discretionary relief known as "cancellation of removal."(31) Of particular concern, IIRIRA included a "stop-time" provision terminating the accrual of time for purposes of the seven-year residency requirement before the issuance of a decision to terminate the person's lawful permanent resident status.(32) IIRIRA also eliminated the discretion to consider relief on a case-by-case basis for persons who have been convicted of minor crimes that are classified as "aggravated felonies." The combined effect of these changes was to greatly reduce the number of deserving long-time lawful permanent residents who can be considered for this type of discretionary relief.

 

This section retains the concept of cancellation of removal relief enacted under IIRIRA, but restores some modicum of equity and fairness to it. First, the section repeals IIRIRA's stop-time rule so that lawful permanent residents may continue to accumulate residency time for purposes of the seven-year eligibility requirement so long as they maintain their permanent resident status. This is far more equitable than cutting off the accumulation of residency time at an arbitrary point that is prior to a decision regarding whether the applicant may maintain his or her residency. Second, this section would permit immigrants classified as aggravated felons to be eligible for discretionary relief, but only if they did not receive a sentence of five years or more. This insures that dangerous offenders will be removed, while permitting individual circumstances to be considered in less serious cases.

 

Sec. 206. Restoration of Fairness in Equitable Relief for Other Non-Citizens (formerly known as suspension of deportation). - The previous section enhanced the availability of equitable and discretionary relief for long-term permanent residents. This section would enhance the availability of equitable and discretionary relief to other immigrants by restoring the forms of equitable relief available more generally under pre-IIRIRA law.

 

Prior to IIRIRA, in addition to the discretionary relief from removal under section 212(c) for long time legal permanent residents, a more stringent two-tier form of relief from removal known as "suspension of deportation" was available to all immigrants by application to an immigration judge in deportation proceedings.(33) The first form of such relief required seven years of continuous physical presence and good moral character, and proof that deportation would result in extreme hardship to the immigrant or to his or her U.S. citizen or lawful permanent resident spouse, child, or parent. If the immigrant was subject to deportation for more serious grounds (such as for certain criminal offenses, for security grounds, for failure to register, or for falsification of documents), suspension of deportation relief required 10 years of continuous physical presence and good moral character, and proof that deportation would result in exceptional and extremely unusual hardship to the immigrant or to his or her U.S. citizen or lawful permanent resident spouse, child, or parent.

 

IIRIRA replaced this suspension of deportation regime with a single form of "cancellation of removal" relief which significantly narrowed eligibility for equitable relief. First, if an immigrant is subject to the more serious type of removal grounds, IIRIRA completely disqualified him or her, no matter how compelling his or her individual circumstances or the magnitude of harm to his or her family. Second, with respect to other immigrants not subject to removal for such serious grounds, IIRIRA requires them to establish 10 years of continuous physical presence and good moral character, and prove that deportation would result in exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, child, or parent, eliminating consideration of hardship to the foreign national himself or herself. Third, IIRIRA placed an arbitrary annual cap of 4000 on the number of people who can receive cancellation of removal.

 

The changes made by IIRIRA with regard to suspension of deportation relief have made discretionary relief unavailable to many immigrants even though they and their families will suffer terrible hardships upon deportation. Restoration of the previous system will make it possible to grant relief to deserving immigrants on a case-by-case basis when it is warranted. This will give immigrants and their families a second chance and will benefit their families and our country.

 

Sec. 207. Eliminating Unfair Retroactive Changes in Removal Rules for Persons Subject to Pending Proceedings. - The changes outlined above repeal the specific changes made by IIRIRA which unfairly subjected immigrants to deportation on a prospective basis. In addition, this section ensures that immigrants currently subject to removal proceedings will not suffer from unfair retroactive changes in the law. Thus, an immigrant will not be found to be removable for committing any offense that was not a ground for removal or deportation when the offense occurred (e.g., the "aggravated felony" classification will apply only to an offense that was defined as an "aggravated felony" when the offense occurred).

 

Sec. 208. Eliminating Unfair Retroactive Changes in Removal Rules for Persons Previously Removed. -- Permits certain former LPRs who have been unfairly removed from the U.S. to return and apply for relief under section 212(c) relief as it existed prior to IIRIRA or for cancellation of removal under the provisions of this bill. Applies to lawful permanent residents who were (1) removed for a criminal offense that was not a basis for removal when it was committed; (2) removed for a criminal offense that is not a basis for removal on the date this bill is enacted; or (3) removed for a criminal offense for which relief would have been available but for the enactment of AEDPA or IIRIRA. For persons who currently are outside the country, an applicant must make a showing of prima facie eligibility for relief to the Attorney General prior to entering the United States.

 

Just as previous sections restored equity to immigrants subject to deportation prospectively and currently subject to removal, this section helps to provide some fairness to persons already removed (or to be removed prospectively) as a result of changes instituted by IIRIRA, which made minor offenses grounds for deportation. The section does this by granting the Attorney General authority to admit previously removed former legal permanent residents (as well as persons removed on a prospective basis under IIRIRA's arbitrary standards) so they may seek discretionary relief from exclusion, removal or deportation. In applying to enter the country and at the hearing on the merits of the application, the former LPR would have the burden of establishing eligibility and that relief is warranted as a matter of discretion.

 

For instance, Jesus Collado, a 43-year-old legal resident and restaurant manager from the Dominican Republic was returning from a vacation to his homeland when he was arrested and imprisoned by immigration officers. Twenty-three years earlier, when he was only 19 years old, he had been convicted for having sex with a minor -- his then 15 year old girlfriend -- and sentenced to probation. At the time, this conduct did not carry with it any adverse immigration consequences, but in 1996, IIRIRA recharacterized such actions as constituting an "aggravated felony," which made him deportable from the United States and ineligible for any form of relief.(34)

 

Subtitle B - Increased Fairness and Equity Concerning Five-Year Bars to Admission and Other Grounds for Exclusion

 

Sec. 211. Limiting Five-Year Bar to Admission to Persons Who Willfully Fail to Attend Removal Proceedings. - Limits the applicability of the five-year bar to admissibility that IIRIRA imposed on persons who fail to attend or remain in attendance at removal proceedings to situations where the individual acted willfully.(35) The five-year bar to admissibility mandated by IIRIRA is unnecessarily harsh for cases in which the person has not acted willfully. Such consequences are not warranted in the absence of an element of fault or blameworthiness.

 

Sec. 212. Limiting Five-Year Bar to Admission to Persons Who Willfully Violate Student Visa Conditions. - Limits the applicability of the five-year bar to admissibility that IIRIRA imposed on persons who violate a term or condition of their nonimmigrant student visas to situations where the student acted willfully.(36) Again, a five-year bar to admissibility is unnecessarily harsh in such situations unless there is an element of fault or blameworthiness.

 

Sec. 213. Limiting Ban on Admissibility to Persons Who Falsely and Willfully Make Claims to Citizenship. - Limits the applicability of an IIRIRA provision which made making a false claim to citizenship for an immigration benefit a basis for exclusion or deportation.(37) Under this section, the INS would be required to prove that a claim of citizenship was not only false, but was also in fact willfully made by the individual. This again is an attempt to limit harsh consequences to situations in which there is an element of fault or blameworthiness.

 

Sec. 214. Equitable Waiver of Inadmissibility for Minor Criminal Offenses. - Authorizes granting a waiver of inadmissibility based on a controlled substance violation for which the foreign national was not incarcerated for a period exceeding one year, thereby overriding IIRIRA's threat of exclusion for minor infractions (e.g., possessing very small amounts of marijuana).(38) Also strikes a provision added by IIRIRA which made some lawful permanent residents ineligible for such waivers of inadmissability.

 

The proposed one year of incarceration standard provides a more reasonable cut-off point for distinguishing between serious and relatively minor offenses. In cases where someone committed a serious offense but was incarcerated for less than a year, the adjudicator could still deny relief as a matter of discretion.

 

The other change is necessary to overturn provisions in IIRIRA that discriminates against immigrants who have become lawful permanent residents of the United States. These provisions require lawful permanent residents to satisfy requirements that do not have to be met by persons who have not become lawful permanent residents. For instance, a foreign national who has become a lawful permanent resident is not eligible for relief unless he or she has lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the foreign national from the United States.(39)

 

Sec. 215. Reducing Length of Duration of Bars to Admissibility. -- IIRIRA created a new bar to admissibility for foreign nationals who are unlawfully present in the United States for certain periods of time.(40) A person unlawfully present in the United States for more than 180 days but less than 1 year who then voluntarily departs from the United States is barred from reentering the United States for 3 years. A person who is unlawfully present in the United States for 1 year or more and then voluntarily departs is barred from reentering the United States for 10 years. These bars to admissibility are unduly harsh as persons often are unlawfully present for minor reasons such as unintentionally overstaying their status. Moreover, these bars often result in separation of family members. For example, a person who leaves the country rather than remain in the U.S. contrary to law will be unable to live with family members, such as U.S. citizen children, who lawfully remain within the United States. To remedy the harshness of IIRIRA, this section reduces the 3 and 10 year bars to admissibility to 1 and 3 years, respectively.

 

TITLE III - ENCOURAGING FAMILY REUNIFICATION

 

Subtitle A - Reuniting Family Members

 

Sec. 301. Visa for Spouses and Children of Permanent Residents Temporarily Waiting for Visa Numbers. - Authorizes a visitor's visa permitting family members to join their lawful permanent resident spouse or parent in the United States while waiting for an immigrant visa number. Also makes a visitor's visa available to persons waiting for an immigrant visa number on the basis of their status as battered immigrants.

 

The INA has a system for determining the order in which foreign nationals will receive the limited number of immigrant visas that are available each year.(41) Although spouses and children of permanent resident aliens can obtain a preference classification which accords them priority in this system, they may have to wait years before they actually receive a visa and can rejoin their family. The proposed visitor's visa will permit them to join their lawful permanent resident spouse or parent in the United States while they are waiting.

 

Battered immigrants often need protection from the relative who initially petitioned for them. The proposed visitor's visa will permit such persons to seek the protection of United States law while they are waiting for visa numbers. In a typical case, this will make it possible for a woman to be with her children in the United States instead of being forced to take them to another country or leave them with an abusive father in the United States.

 

Sec. 302. Refugee Status for Unmarried Sons and Daughters of Refugees. - Authorizes granting refugee status to unmarried sons and daughters who are accompanying or following to join a parent who is a refugee when such a benefit is warranted by unusual circumstances or to preserve family unity.

 

Under current law, this privilege is accorded only to the spouse or "child" of a refugee, defined as a person under the age of 21. When children reach the age of 21, they are classified as "sons and daughters" and lose their entitlement to refugee status. Ordinarily, a child no longer needs to live with parents after the age of 21, but this is not always the case. For instance, some children are mentally retarded or autistic and continue to need their parents after reaching that age. This section will address that need.

 

Sec. 303. Asylee Status for Unmarried Sons and Daughters of Asylees. - Authorizes granting asylee status to unmarried sons and daughters who are accompanying or following to join a parent who is a refugee when such a benefit is warranted by unusual circumstances.

 

This is the same as the relief for refugees described above. "Refugee" status and "asylee" status are similar for most purposes. In both cases, refuge is being given to a person who is fleeing from persecution.(42) The main difference between these forms of relief is that "refugee" status is given at a consulate office in another country to a person who has not reached the United States yet, and "asylee" status is given to someone who is already in or at the border of the United States. Consequently, the justification for authorizing discretion in the case of the sons and daughters of refugee parents applies equally to the sons and daughters of asylee parents.

 

Sec. 304. Protection Against Processing Delays. -- Provides protection against INS and State Department delays in processing visa applications for certain time sensitive applicants, such as for minor children, by requiring the determination of an applicant's eligibility to be based on the beneficiary's qualifications 90 days after the date on which the application for a visa or for adjustment of status is filed. For instance, where a beneficiary of a visa petition for immediate relative status is under the age of 21 or has a qualifying familial relationship when the adjustment of status or visa application is filed, the beneficiary will continue to be considered a child even if he or she is older than 21 at the time of adjudication or will retain the qualifying familial relationship even if it does not continue at the time of adjudication, if the INS or State Department takes more than 90 days to complete its adjudication of the adjustment of status or visa application.

 

This section also incorporates text of H.R. 2448, legislation introduced by Rep. Mink (D-HI) on July 1, 1999, H.R. 2448. This assures that immigrants do not have to wait longer for an immigrant visa as a result of a reclassification because of the naturalization of a parent or spouse.

 

Subtitle B - Limited Waiver of Grounds of Admissibility

 

Sections 311 -- 313. Prior to IIRIRA, specified categories of immediate relatives (e.g., spouses, children, and parents) who were found to be inadmissable to the U.S. were permitted to apply to the Attorney General for a discretionary waiver of inadmissability on a case-by-case basis. IIRIRA limited eligibility for such waivers by, among other things, narrowing the category of eligible relatives to exclude parents; by requiring a showing that the refusal to admit the applicant would result in "extreme hardship" to his or her citizen or LPR relative in the U.S.; and by narrowing the grounds for eligible humanitarian relief. Collectively, these changes are not only illogical and inconsistent with the type of discretionary relief available in deportation cases, but they have made it far more difficult for families to reunite so they could support themselves emotionally and financially. The changes outlined in this Subtitle serve to overturn the most severe and anti-family aspects of the changes to the waiver of inadmissability law made by IIRIRA.

 

Sec. 311. Discretionary Waiver in Cases involving Family Members. - Restores waiver eligibility to the parents of a lawful permanent resident or citizen son or daughter. Permits the waiver in cases where the applicant is able to establish that "hardship" would result from refusal of admission, rather than having to meet the higher standard imposed by IIRIRA of showing "extreme hardship.(43)" Makes the waiver available to eligible relatives who are inadmissible on the ground that they are present in the United States without having been formally admitted or paroled into the country.

 

IIRIRA made parents of U.S. citizens or lawful permanent residents ineligible for this waiver. In addition, IIRIRA for the first time added a hardship requirement, by requiring the applicant to establish that the waiver is needed to avoid causing "extreme hardship" to his or her spouse or parent.(44) Although this section retains a general hardship requirement, it would not require a showing of "extreme" hardship. Finally, IIRIRA made persons present in the United States without being admitted or paroled inadmissable, and this section provides a discretionary waiver of that new ground of inadmissability.

 

Sec. 312. Discretionary Waiver in Document Cases Involving Family Members. - Current law provides a waiver of inadmissibility or deportability based on a conviction for a document fraud if the offense was committed solely to assist, aid or support the foreign national's "spouse or child" and not any other individual. This subsection adds "parent" and non-minor children to this list of relatives.

 

Under IIRIRA, this waiver is limited to spouses and children.(45) The reasons for permitting relief in cases where the foreign national was acting solely to help a spouse or a child apply with equal force to the case in which the foreign national was trying to help a parent or non-minor son or daughter. Relief obviously should be available in both situations.

 

Sec. 313. Discretionary Waiver to Admit Persons in Unusual Circumstances. - Creates a new waiver which provides authority to admit otherwise excludable applicants in unusual circumstances (including victims of a battering or extreme cruelty by a spouse or other relative) for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

 

This waiver provides discretion in a variety of situations in which the admission-seeker has inadvertently committed a minor or technical immigration violation. For example, it would apply to cases in which the applicant would be inadmissible or ineligible for adjustment of status because of a failure to attend removal proceedings,(46) for unintentionally violating the conditions of a student visa,(47) for having been removed previously,(48) and for being unlawfully present in the United States.(49)

 

Subtitle C - Eliminating Unfairness and Waste in Section 245(i) Waivers

 

Sec. 321. Permanent Application of Section 245(i). - Makes section 245(i) of the INA(50) a permanent provision and creates special immigration accounts for the fees this provision will generate.

 

Before the section 245(i) waiver was enacted, an foreign national in the United States who wanted to become a lawful permanent resident through adjustment of status had to be present in this country lawfully. Without lawful presence, he or she had to leave the United States, apply for an immigrant visa at a consulate office abroad, return to the United States, and then apply for admission as a lawful permanent resident at a border or port of entry. The 245(i) waiver created an exception to this burdensome obstacle for foreign nationals who had become eligible for permanent resident status on the basis of a family relationship or job skills, permitting such a person to become a lawful permanent resident without having to leave the country. Unfortunately, it was not enacted as a permanent provision and initially had an October 1, 1997, sunset date. A limited continuation was authorized in the 1998 Justice, State, Commerce Appropriations bill, but the authorization only applies to foreign nationals who are the beneficiaries of (1) a petition for a family-based or an employment-based immigration preference which was filed on or before January 14, 1998, or (2) an application for labor certification which was filed on or before January 14, 1998. This section will eliminate these restrictions and make section 245(i) permanent.

 

Sec. 322. Eliminating Unfairness Created by Temporary Sunset of Section 245(i). -- Provides a waiver of inadmissibility on the basis of a history of unlawful presence in the United States in cases where the unlawful presence occurred during a time when the person involved would have been able to become a lawful permanent resident but for a gap in the life of section 245(i).

 

The 245(i) waiver became more than a convenience when IIRIRA created a provision (1) making a person who has been unlawfully present for longer than 180 days but less than one year inadmissible for three years after his or her departure from the United States, and (2) making a person who has been unlawfully present for one year or more inadmissible for 10 years after his or her departure.(51) This section prevents persons otherwise eligible for legal residency from being excluded on this basis if they would have been able to become lawful permanent residents of the United States but for lapses in the life of the 245(i) waiver. Without this waiver, such persons will not be able to enter the United States on the basis of the immigrant visas presently available to them, and they will have to qualify for new visas in three or ten years when they are no longer excludable on this basis. For many, this will mean that they will never be able to immigrate to the United States.

 

Subtitle D - Equitable Procedures Concerning Voluntary Departure

 

Sec. 331. Discretionary Determination of Period of Voluntary Departure. - Permits grants of voluntary departure for the period of time that is warranted by the foreign national's circumstances.

 

A person facing the prospect of forced removal may be permitted to leave the United States voluntarily before being put in removal proceedings or prior to the completion of such proceedings.(52) Voluntary departure avoids the consequences of a forced departure, such as a five-year ban on readmission. IIRIRA specified that the foreign national must be required to leave the United States within a 120-day period.(53) The point of this restriction is not apparent. In many cases, the foreign national will not need 120 days to prepare for departure from the United States. In some cases, the foreign national will need more than 120 days. This section simply returns the discretion to make the determination on the basis of the circumstances in a particular case.

 

Sec. 332. Discretionary Determination of Voluntary Departure Bond Based on Individual Circumstances. - Eliminates the mandatory requirement that a foreign national must post a bond as a condition for receiving voluntary departure at the conclusion of removal proceedings and instead leaves this matter up to the discretion of the official who sets the bond terms.

 

The mandatory bond requirement was created by IIRIRA.(54) It is yet another example of unnecessary rigidity. In fact, some times a bond is appropriate, and some times a bond is not appropriate. It depends on the circumstances and so should the decision on whether to impose one.

 

Sec. 333. Elimination of Automatic Penalties for Failing to Depart in Accordance With a Voluntary Departure Grant. - Eliminates penalties for failing to depart pursuant to a grant of voluntary departure.

 

Under IIRIRA, such a failure can result in being ineligible for specified forms of discretionary relief for 10 years and subject the person to civil penalties of between $1,000 and $5,000.(55) This is harsh and unnecessary. Under this section, failure to depart in accordance with a grant of voluntary departure would be an adverse factor in any application for discretionary relief, but the circumstances of the case would determine whether this or any other adverse factor justifies denial of relief.

 

Subtitle E -- Fairness in Public Charge Determinations

 

Sec. 341. Equitable Procedures Concerning Public Charge and Affidavit of Support. - Eliminates the requirement of an affidavit of support as a condition for admissibility,(56) but it permits using such an affidavit as evidence that the applicant for admission should not be excluded as a person who is likely to become a public charge.(57) Also reduces the minimum income requirement for persons who sponsor the immigrants from 125% of the Federal poverty line to 100%.

 

IIRIRA required family-sponsored immigrants and certain employment-based immigrants to have an affidavit of support as a condition of admission to the United States.(58) This and the minimum income requirement frequently prevent family reunification and constitute nothing less than "class warfare" by telling the world that immigration is only for the wealthy and their relatives. These requirements are unnecessary because an immigrant is inadmissable in any event in the absence of proof that he or she is a person who is not likely to become a public charge.

 

TITLE IV - FAIRNESS IN ASYLUM AND REFUGEE PROCEEDINGS

 

Subtitle A -- Increased Fairness in Asylum Proceedings

 

Sec. 401. Elimination of Arbitrary Time Limits on Asylum Applications. - Eliminates the requirement that an asylum applicant must establish that his application was filed within one year of his arrival at the United States or justify the delay on the basis of extraordinary circumstances.(59)

 

The artificial time limit created by IIRIRA has resulted in a complex layer of adjudications over whether delays are justified by extraordinary circumstances and thus diverts resources from resolving the merits of asylum applications. It also increases the number of applications which have not been carefully prepared, as asylum seekers are forced to submit by the deadline or be categorically denied. Moreover, it arguably violates some United States international obligations such as Article 33 of the 1967 Protocol regarding the Status of Refugees. Article 33 binds signatories to the duty of not returning any refugee who could face a threat to his or her life or liberty in the country of feared persecution, without regard to when the person makes known the claim to need such protection. Ironically, when IIRIRA took effect, the INS had already taken substantial strides to increase efficiency and cut down on fraud in asylum applications through the use of more asylum officers and immigration judge corps. Given the political and economic instability in almost every region of the world, it is imperative that the United States maintain its status as a refuge against persecution, and not impose any random deadlines on asylum applications.

 

Sec. 402. Asylum in Cases of Gender-based Persecution. - Adds a provision to the definition of a "refugee" which specifies that persecution on account of gender will be deemed to fall within the "particular social group" category for asylum purposes.

 

Under current law, an applicant for asylum must satisfy the technical requirements for establishing that he or she is a "refugee,(60)" which include proof that the alleged persecution was or would be "on account of race, religion, nationality, membership in a particular social group, or political opinion.(61)" Asylum applicants have found it extremely difficult to show that gender-based persecution claims fall within one of these categories. This is illustrated by the case of Alvarado Pena, a Guatemalan woman. Although Ms. Pena established that she had been raped and pistol-whipped by her husband, she was not able to prevail with her argument that her husband's abuse was on account of her membership in a particular social group consisting of women or, alternatively, Guatemalan women living under male domination. This problem will be eliminated by the subsection's provision that persecution on account of gender will be deemed to fall within the "particular social group" category.

 

Sec. 403. Elimination of Arbitrary Cap on Persons Eligible to Adjust Status From Asylees to Legal Permanent Residents. - Eliminates cap of 10,000 on the number of individuals who can change their status from "asylee" to "lawful permanent resident" in any fiscal year,(62) and instead permits the President to set the numerical limitation before the beginning of each fiscal year. This permits a cap to be set on the basis of current circumstances instead of using an arbitrary limit.

 

Sec. 404. Restoration of Eligibility for Withholding of Removal for Persons Facing Loss of Life or Freedom. -- Amends the provision that withholds removal for certain individuals facing the possibility of being removed to a country where their life or freedom would be in danger. Individuals who have been convicted of certain offenses are currently ineligible for withholding even if they face severe danger upon removal. This section would limit that exclusion to individuals who were sentenced to an aggregate term of imprisonment of more than five years and are considered to be a danger to the United States.

 

Subtitle B - Increased Fairness and Rationality in Refugee Consultations

 

Sec. 411. Timely Consultation With Respect to Refugee Admissions. - Changes the time for the President's report on refugee admissions from the beginning of each fiscal year(63) to the date when he or she submits his or her budget proposal to Congress.

 

Under the present system, Congress receives a report from the President regarding the proposed number of refugees to be admitted into the United States in the next fiscal year. Congress often does not obtain access to the refugee report until it is too late to meaningfully evaluate the number of refugee admissions in the framework of the money available for the fiscal year. By the time the report is made, the funds for the fiscal year have already been allocated, including whatever funds are needed for refugee admissions.

 

TITLE V - INCREASED FAIRNESS AND EQUITY IN NATURALIZATION AND LEGALIZATION PROCEEDINGS

 

Subtitle A - Naturalization Proceedings

 

Sec. 501. Increased Authorization of Funds for Naturalization Proceedings. - Establishes an account to be known as "The Immigration Services Backlog Reduction Fund." The money would be used to reduce the backlog of naturalization applications to no more than six months. It would also provide funding for more expeditious processing of visa petitions, adjustment of status applications, and work authorization requests.

 

Increased funding will allow the INS to hire additional staff and improve its processing systems in order to reduce the backlog of immigration applications. Additional funding is urgently needed in the area of naturalization applications in particular. INS is faced with a backlog of some 1.2 million immigrants who are waiting for their citizenship applications to be processed. This means that many immigrants wait more than a year before their applications are processed. At the same time, legal residents continue to apply for citizenship at near record rates of 700,000 per year.

 

Secs. 502-506 - Naturalization of Cambodian and Vietnamese Military Veterans.-- Certain Cambodian and Vietnamese nationals assisted U.S. forces during the Vietnam War. After the war ended in 1975, many of these individuals were persecuted and imprisoned due to the assistance they provided to the United States. Many subsequently entered the U.S. as refugees. They have found it difficult to naturalize because of their difficulty in learning English. In order to naturalize, permanent residents must generally demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage in the English language.

 

These sections exempt these Cambodian and Vietnamese naturalization applicants from the English language requirement if they have served with special guerilla units or irregular forces

 

operating in support of the United States during the Vietnam War (or were spouses or widows of such persons on the day on which such persons applied for admission as refugees).(64) It also provides them with special consideration as to the civics requirement for naturalization (naturalization applicants must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States). Applicants are required to submit documentation of their, or their spouses', service with a special guerilla unit or irregular forces, which the Attorney General will evaluate.

 

Subtitle B - Parity in Treatment for Refugees From Central America and Haiti

 

(Sections 511 -- 516)

 

This subtitle incorporates the "Central American and Haitian Parity Act of 1999" (H.R. 2722) bipartisan legislation transmitted by the President and introduced by Reps. Smith (R-NJ) and Gutierrez (D-IL) on August 5, 1999. The subtitle would expand section 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), which currently provides qualified Cubans and Nicaraguans the opportunity to become lawful permanent residents of the United States. The proposed subtitle would extend the same benefits to eligible nationals of Guatemala, El Salvador, Honduras, and Haiti.

 

Like Nicaraguans and Cubans, many Salvadorans, Guatemalans, Hondurans, and Haitians fled human rights abuses or unstable political and economic conditions in the 1980s and 1990s. The United States has a strong foreign policy interest in providing the same treatment to these similarly situated people. In addition, returning migrants to these countries would place significant demands on their fragile economic and political systems. Passage of these provisions would evidence our commitment to fair and even-handed treatment of nations from these countries and to the strengthening of democracy and economic stability among important neighbors.

 

Although special benefits were extended to Guatemalans and Salvadorans under section 203 of NACARA (relating to suspension of deportation and cancellation of removal), and to Haitians under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), the scope of these provisions is in many respects narrower than section 202 of NACARA. This subtitle would eliminate this disparity. At the same time, relief would still be available under section 203 of NACARA and under HRIFA, so that no one who is currently covered by these laws would be deprived of opportunities for relief.

 

In addition, the subtitle contains technical amendments to both NACARA and HRIFA that would:

 

•lift the requirement that the spouse, child, or unmarried son or daughter of a principal applicant be of a specific nationality to be granted relief, in the interest of family unit.

 

•require dependents to have entered the United States before the date of enactment of the Central American and Haitian Parity Act, but also establish an immigrant visa process for dependents outside the United States on that date. This will discourage illegal entry to obtain benefits, while ensuring that families of eligible principal applicants will be united quickly.

 

•remove certain obstacles to relief, such as the requirement that a foreign national be outside the United States to apply for an exception to certain inadmissibility grounds relating to previous removal from the United States. The subtitle would also expand the Attorney General's authority to consider, on a case-by-case basis, whether to grant relief to an applicant who might otherwise be precluded (a) based on a health-related condition, or (b) for attempting to enter the United States (or obtain an immigration benefit) through misrepresentation.

 

Subtitle C - Equality of Treatment for Women's Citizenship (Sections 521 -- 522)

 

This subtitle incorporates the "Restoration of Women's Citizenship Act" (H.R. 2493), bipartisan legislation introduced by Rep. Eshoo (D-CA) and Walsh (R-NY) on July 13, 1999. In 1907, Congress passed a law requiring American women to relinquish their citizenship when they married men who were not U.S. citizens (men marrying foreign national women were not subject to this law). Following increasing awareness of women's rights, over the next few decades Congress repealed most of the law in several different Acts. In 1951, Congress created a procedure for women to regain citizenship which requires them to take an oath of office. However, there are no provisions for women who died before 1951 to regain citizenship posthumously. This subtitle grants posthumous citizenship to American women who married foreign national men before September 1922 and died before they could take advantage of the procedures set up by Congress to regain their citizenship in 1951.

 

This subtitle also incorporates the text of the "Equity in Transmission of Citizenship Act" which was introduced by Sen. Moseley-Braun on May 1, 1997. This provides the descendants of the children of female U.S. citizens born abroad before May 24, 1934, with the same rights to citizenship at birth as the descendants of children born of male citizens abroad. Since the children born abroad to U.S. citizen mothers before May 24, 1934, only became entitled to claim U.S. citizenship, acquired at birth, as of October 25, 1994,(65) they were not legally admissible into the United States as citizens prior to that date; and therefore they could not meet the residency requirements to transmit U.S. citizenship on to their children as the children of male U.S. citizens could. The subtitle waives that requirement for any person born before the date of enactment of this Act who claims U.S. citizenship based on such person's descent from an individual described in that situation.

 

Subtitle D - Fairness in the Treatment for Refugees from Liberia

 

Section 531. Adjustment of Status of Certain Liberian Nationals. -- Authorizes the Attorney general to adjust the status of certain Liberian refugees. It applies to Liberians who are eligible to remain in the United States under the provisions of the Deferred Enforced Departure Order executed by President Clinton on September 27, 1999; who submit such an application on or before September 29, 2002; and who are otherwise admissible to the United States under the INA.

 

This is necessary to enable Liberians who entered this country fleeing a brutal and violent civil war and were granted a series of temporary protective status orders over the last ten years. It would be unfair to summarily mandate the repatriation of these refugees who have long since become productive and contributing residents of their state and local communities. Over this period of time, they have bought homes, established businesses, employed others, paid taxes, contributed to social security, and firmly established roots and family ties in these communities. Many are the parents and care providers of minor children who are United States citizens. In addition, any repatriation by the U.S. would create a "domino effect" by which other nations housing Liberian refugees would return them to Liberia, potentially destabilizing the entire country, thereby creating a potentially massive refugee problem.

 

Subtitle E - Fairness in Review of Previously Granted Amnesty Rights

 

Sec. 541. Elimination of Limitation on Legalization Litigation. -- Incorporates the text of the "Legal Amnesty Restoration Act of 1999" (H.R. 2125), which was introduced by Rep. Jackson Lee (D-TX) on June 10, 1999 and repeals jurisdictional restrictions imposed by Congress on the courts in IIRIRA respecting certain outstanding claims for legalization and work permits under the Immigration Reform and Control Act of 1986 ("IRCA").(66)

 

IRCA allowed specified undocumented immigrants to apply to remain in the United States through an amnesty program. It specifically allowed persons who could prove that they had been residing in the United States since the early 1980's to adjust their status to that of a lawful permanent resident beginning on May 5, 1987. Unfortunately, at that time the INS promulgated a narrow rule which restricted anyone who had briefly left the country without advance parole from applying for amnesty. INS refused to accept legalization applications from aliens who admitted that they had left the country without first obtaining advance parole. This became known as "front-desking" because the determination that people were ineligible on this basis was made during the initial interview. Many applicants for amnesty were then turned away by the INS.

 

Several class action suits challenged the INS's position and sought redress for immigrants who were not able to apply for amnesty because of the INS' rule. In 1993, the Supreme Court determined that individuals who were eligible for application were unfairly and illegally blocked from applying during the one year period, and that they should not be considered "late."(67) The Court remanded the cases back to the lower courts so their applications could be processed. However, in IIRIRA, Congress retroactively removed the federal courts' jurisdiction over the applicants' cases.(68) This subtitle will reverse this injustice and permit the remaining applications to be considered.

 

Subtitle F - Legal Amnesty Restoration

 

Sec. 551. Record of Admission for Permanent Residence in the Case of Certain

 

Foreign nationals. -- Incorporates the text of the "Date of Registry Act" (H.R. 4138), which was introduced by Rep. Jackson Lee (D-TX) and Rep. Luis Guttierez (D-IL) on March 30, 2000, and amends the INA to permit the Attorney General to create a record of lawful admission for permanent residence for certain foreign nationals who entered the United States prior to 1986.

 

Updating the registry date to 1986 is necessary to protect long-term immigrants who have become valuable employees and family members in America, and to correct the punitive and unfair procedures resulting from IIRIRA. The notion of an immigration law registry is based on our long-held principle that immigrants who have come here without proper documents should be given an opportunity to adjust to permanent residence status and solidify their family and economic ties if they have been here a long time and have nothing in their background that would disqualify them from immigrant status. While the registry date has been updated six times since 1929, it has not been changed since 1986.

 

Subtitle G - Equality of Treatment for Asian American Visa Petitions

 

Sec. 561. Immigration of Certain Foreign nationals Born in the Philippines or Japan and Fathered by U.S. Citizens. -- Incorporates the text of the "American Asian Justice Act of 1999" (H.R. 1128), which was introduced by Rep. Millender-McDonald (D-CA) on March 16, 1999. It grants certain individuals born in the Phillippines or Japan who were fathered by United States citizens the right to file visa petitions in lieu of their parents and other relatives. This is the same treatment presently granted to other groups of children fathered by United States citizens such as certain children born in Korea, Vietnam, Laos, Kampuchea, and Thailand.

 

TITLE VI - FAIRNESS AND COMPASSION IN THE TREATMENT  OF BATTERED IMMIGRANTS (Sections 701 -- 715)

 

The provisions in this Title were taken from the "Battered Immigrant Women Protection Act of 1999," (H.R. 3083) bipartisan legislation introduced by Rep. Schakowsky (D-IL), Rep. Morella (R-MD), and Rep. Jackson Lee (D-TX) on October 14, 1999, which continues the work that began with the passage of the first Violence Against Women Act in 1994 ("VAWA 1994"). Prior to VAWA 1994, immigration laws allowed abusive citizens and permanent residents to have total control over their foreign national spouse's immigration status. As a result, battered immigrant women and children were forced to remain in abusive relationships, unable to appeal to law enforcement and courts for protection for fear of deportation. VAWA 1994 immigration provisions remedied the situation by allowing battered immigrants to file their own applications for immigration relief without the cooperation of their abusive spouse or parent enabling them to safely flee the violence. Despite the successes of the immigration provisions of VAWA 1994, IIRIRA drastically reduced access to VAWA immigration relief for battered immigrant women and children.(69) Title VI seeks to restore and expand access to a variety of legal protections for battered immigrants so they may flee violent homes, obtain court protection, cooperate in the criminal prosecution of their abusers, and take control of their lives without the fear of deportation.

 

Among other things Title VI addresses:

 

VAWA Restoration Act. - Allows battered immigrant women and children to obtain permanent immigration status without leaving the U.S. Under current law, many battered immigrants are forced to leave the US to obtain their lawful permanent residence. Traveling outside the U.S. deprives these women of the protection provided by U.S. courts, legislation, custody decrees, and law enforcement. Permits battered women to safely obtain immigration status in the U.S. Removes barriers to cancellation or suspension relief for battered immigrants who are placed in deportation or removal proceedings and restores to them the legal relief they were granted by VAWA in 1994. Additionally, exempts VAWA applicants from the cancellation removal cap and allows battered immigrants to file motions to reopen beyond the ninety day limitation in removal cases if the purpose of the motion is to attain VAWA relief.

 

Problems with VAWA Implementation. - Grants battered immigrants access to information about their abuser's immigration status that they need to file for VAWA immigration relief. Additionally, ensures that changes in the abuser's citizenship or immigration status can either have a positive effect or no effect on a battered woman's application for immigration relief. Likewise, the abuser's death does not bar the battered immigrant from applying for relief. Also requires the adjudication of family-based visa applications without the abuser when credible evidence of abuse is presented to the INS, and allows remarriage of battered immigrants after their self-petition has been approved.

 

Waivers for VAWA Eligible Applicants. - Provides discretion to waive certain bars to immigration relief and grounds of deportation for qualified VAWA applicants who either committed, were arrested for, were convicted of, or had pled guilty to crimes they committed when they acted in self-defense, were convicted of violating a protection order issued to protect themselves which should not have legally been enforced against them, acted under duress from their abuser or committed other crimes related to the domestic violence. Also exempts battered immigrants from certain other immigration violations that would bar them from VAWA immigration relief. Removes barriers to VAWA relief newly imposed by IIRIRA and other post-VAWA immigration laws.

 

Physical Presence Waiver for VAWA Immigration Relief. - Under current law, VAWA applicant must be continuously present in the U.S. in order to obtain VAWA immigration relief. Therefore, an abuser who wishes to undermine the victim's cooperation with authorities in his criminal prosecution for domestic violence need only remove the victim from the US for a certain period of time to render her ineligible for VAWA immigration relief. This section provides for a waiver of certain breaks in continuous presence for humanitarian purposes when the applicant has been a victim of domestic violence.

 

Improved Access to VAWA for Battered Immigrant Women. - Removes the residency in U.S. requirement, granting access to VAWA protection to abused wives and children of U.S. military, U.S. government workers and other U.S. citizens and lawful permanent residents residing abroad. Also deletes the extreme hardship requirement, which impedes access to VAWA for many unrepresented victims. Allows children who file or are included in their mother's VAWA petition when they are under twenty-one to receive their green cards along with their mother as part of their mother's self-petition after turning twenty-one. Also allows VAWA applicants under twenty-one years of age to include any children they may have of their own in their self-petition or cancellation application. VAWA self-petitioning is also available to victims who file within two years of divorce, death or loss of legal immigration status of their citizen or lawful permanent resident abusive spouse or parent. Also expands access to VAWA self-petitioning to certain other needy immigrants battered by family members.

 

Improved Access to VAWA Cancellation of Removal. - Expands access to VAWA immigration relief to victims of elder abuse; spouses married to bigamists; certain divorced victims; abused children over 21 years old; abused spouses; and children living abroad who are married to or are the children of citizens or permanent resident abusers. Also allows child abuse victims filing as children, sons or daughters to include any children they may have of their own in cancellation cases. Provides battered immigrants with the option of having their children follow to join the persons receiving cancellation of removal rather than placing them in deportation proceedings.

 

Good Moral Character. - Creates a discretionary waiver for good moral character determinations for self-petitioning immediate relatives, second-preference self-petitioners, VAWA cancellation, and VAWA suspension of deportation. Permits waivers when there is a connection between the abuse and the commission of, arrest for, conviction of, or plea to a crime.

 

Battered Immigrant Women's Economic Security Act. - Battered immigrant women who leave their abusers often thereby sever ties with their prime source of economic support. VAWA sought to help battered immigrants gain independence by offering them access to immigration relief, work permits, and some public benefits. This section addresses gaps, errors and oversights in current law that impede battered immigrant women's ability to flee violent relationships and survive economically. Also ensures that battered immigrants with pending immigration applications are able to access public benefits, Food Stamps, SSI, housing, work permits, and immigration relief.

 

Access to Shelter Services and Legal Representation. - Grants VAWA eligible battered immigrants access to funds from the Legal Services Corporation to be used in their protection order and immigration cases. Also allows programs to use private funds to represent any battered immigrant who qualifies for relief under state domestic violence laws. Provides access to Legal Services attorneys to aid battered immigrants in obtaining the security necessary to flee violent homes while gaining economic security. Clarifies that the definition of "under served populations" under VAWA clearly covers immigrants. Specifically allows VAWA and other domestic violence grant funds to be used for legal and social service assistance to battered immigrants, and requires a report detailing funds serving under-served populations to be submitted to Congress.

 

VAWA Training. - Makes grant money available for training of federal and state civil and criminal judges, including immigration judges, INS officers, the military and other justice system personnel on issues affecting battered immigrants. There have been increased reports of judges, prosecutors and police who are inquiring into the immigration status of domestic violence crime victims who call them for help. In such communities, battered immigrants are unwilling to call the police or seek protection orders. Instead they are forced to remain with their abusers and continue suffering ever increasing violence. This section stops judicial and law enforcement system employees from inquiring into the immigration status of crime victims.

 

Protection for Certain Crime Victims Including Crimes Against Women. - Allows victims of rape, torture, incest, battery or extreme cruelty, sexual assault, female genital mutilation, forced prostitution, trafficking, being held hostage, or any other violent crime to obtain a non-immigrant visa and to later apply for lawful permanent residency if they can demonstrate humanitarian need. The victim can self-petition for a visa but should submit an affidavit from a law enforcement officer, prosecutor or state enforcement agency verifying that they have information that has assisted or would assist in the investigation or prosecution of a crime. By providing temporary legal status to foreign nationals who have suffered severe victimization, this provision will strengthen the ability of law enforcement agencies to investigate and prosecute cases of trafficking foreign nationals and cases of domestic violence while protecting victims of such offenses. Also grants the Attorney General discretion to adjust such nonimmigrants to permanent resident status when justified on humanitarian grounds or in the interest of the nation.

 

NACARA, Haitian Refugee Immigration Fairness Act, and Cuban Adjustment. - Permits battered spouses and children of NACARA petitioners, Haitian Refugee Immigration Fairness Act petitioners and Cuban adjustment applicants to self-petition for relief. Moreover, removes the requirement that battered immigrant spouses and children of Cuban Adjustment applicants must be living with the Cuban Adjustment applicant at the time of filing.

 

TITLE VII - UNUSED EMPLOYMENT BASED IMMIGRANT VISAS

 

Sec. 701. Recapture of Unused Employment Based Immigrant Visas.-- Incorporates section 101(b) of the "Helping to Improve Technology Education and Achievement Act of 2000" (H.R. 3983), which was introduced by Rep. Zoe Lofgren (D-CA) and Rep. David Dreier (R-CA) on March 15, 2000, and allows unused visas from FY 1999 and FY 2000 to be recaptured for use in future years.

 

The problem to be addressed derives from the fact that 140,000 employment-based visas are available each year but frequently cannot be fully used due solely to INS processing delays. For example, in FY 1999, less than 40,000 visas were issued because of INS processing delays although demand was much greater. This provision will recapture the unused visas to create a "bank" of visas for use in future years when the cap is reached because INS processing of applications has improved.

 

TITLE VIII - MISCELLANEOUS PROVISIONS

 

Sec. 801. Technical and Conforming Change Concerning Board of Immigration Appeals. - Adds a definition of "appellate immigration judge" to the existing definition of "immigration judge" and specifies that the Attorney General may delegate authority to the appellate immigration judges.

 

IIRIRA included a definition of "immigration judge" in the INA.(70) This section adds a definition for "appellate immigration judge." The definition for "appellate immigration judge" is a slightly modified version of the existing definition for "immigration judge."

 

Sec. 802. Limiting Forfeiture for Certain Assets Used to Violate INA Where There Was No Commercial Gain. - Limits the seizure and forfeiture of a vehicle used to harbor or smuggle a foreign national to cases in which the purpose of harboring or smuggling the foreign national was commercial advantage or private financial gain.

 

With a few exceptions, INA provides that any vehicle used to harbor or smuggle an foreign national is subject to seizure and forfeiture.(71) This section limits seizure and forfeiture to cases where it is being done by professional smugglers.

 

Sec. 803. Elimination of Ban on State and Local Governments from Preventing Communications with the INS. - Repeals a provision in IIRIRA(72) which prohibits any federal, state or local government official from preventing or restricting any government entity from sending to or receiving information from INS regarding the citizenship status or immigration status of any individual, or maintaining such information.

 

This subsection restores the right of state and local government entities to decide the extent to which they will participate in the enforcement of immigration laws. For instance, a local government might want to provide charitable benefits to immigrant children without fear of information being released about which immigrants receive the benefits, which could discourage the immigrant community from taking the benefits. Under IIRIRA, the local government is prohibited from keeping such records confidential from INS.

 

Sec. 804. Elimination of Authority to Permit State Personnel to Carry Out Immigration Officer Functions.-- This provision repeals section 287(g) of the INA(73) which allows the Attorney General to enter into agreements with State and local governments to have enumerated immigration functions handled by local law enforcement agencies. Cities, such as New York City, Salt Lake City and Miami, have objected to being engaged in functions that are beyond their general scope and experience. Moreover, the rights of citizens and foreign nationals are better protected by those with the requisite knowledge and understanding of the immigration laws.

 

Sec. 805. Parole Authority - Deletes the present standard for determining when to parole a person into the United States temporarily, which is, "for urgent humanitarian reasons or significant public benefit, "(74) and substitutes in its place, "for emergent reasons or for reasons deemed strictly in the public interest."

 

The present standard does not provide sufficient discretion for responding to an unexpected or urgent need to enter the United States in cases where the person involved has not been able to establish his or her admissibility. For instance, a person with a technically deficient entry document might suddenly develop a dental problem that requires attention but is not serious enough to be considered an urgent humanitarian reason for parole or a matter of significant public benefit. This section would permit but not require parole in such a situation.

 

Sec. 806. Enhanced Border Patrol Recruitment and Retention. -- Incorporates the text of the "Border Patrol Recruitment and Retention Act of 1999" (H.R. 1881), which was introduced by Rep. Jackson Lee (D-TX) on May 20, 1999. It provides for an increase to the GS-11 grade level for Border Patrol agents who have completed one year of services at a GS-09 grade level and who have fully successful performance rating. It also directs the INS Commissioner to establish an Office of Border Patrol Recruitment and Retention to (1) develop outreach programs to identify and recruit prospective Border Patrol agents; (2) develop programs to retain such agents; and (3) submit recommendations to the Commissioner relating to such agents' pay and benefits.

 

Sec. 807. Elimination of Denial of Immigration Benefits for Erroneous Asylum Application. - Eliminates two IIRIRA provisions limiting the rights of persons seeking asylum. Section 208(d)(6) of the INA implemented by section 604 of IIRIRA prohibited foreign nationals who have knowingly made a "frivolous" asylum application from ever receiving any benefit under the INA. Similarly, section 208(d)(7) of the INA implemented pursuant to section 604 of IIRIRA stated that nothing in the asylum provisions of the INA can be construed to create a legally enforceable substantive or procedural right or benefit.(75)

 

Sec. 808. Authorization of Appropriations for Implementation of Act. - Authorizes appropriations for the various provisions included in the Act.

 

TITLE IX - EFFECTIVE DATES -- Sets forth various effective dates with regard to the Act's provisions.

 

1. Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub.L. 104-302, 110 Stat. 3656 (Oct. 11, 1996). The bill also applies to largely overlapping provisions included in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA").

 

2. Section 242 of the INA, 8 U.S.C. § 1252.

 

3. Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998).

 

4. Henderson v. Reno, Nos. 97-2599, 97-2600, 97-2629, 97-4050, 97-4070 (2d Cir. Sept. 18, 1998).

 

5. Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998).

 

6. See Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989).

 

7. Section 301(b)(1) of IIRIRA.

 

8. Section 309(c)(4) of IIRIRA

 

9. Section 291 of the INA, 8 U.S.C. § 1361.

 

10. Section 304 of IIRIRA.

 

11. Section 212(a)(9) of the INA, 8 U.S.C. § 1182(a)(9)

 

12. Section 240B of the INA, 8 U.S.C. § 1229c.

 

13. Section 302(a) of IIRIRA.

 

14. Section 301 of IIRIRA.

 

15. Section 305(a) of IIRIRA.

 

16. Section 236(a) of the INA, 8 U.S.C. § 1226(a).

 

17. Id.

 

18. Section 101(a)(43)(A) of the INA, 8 U.S.C. § 1101(a)(43)(A)

 

19. Section 212(a)(2)(A) of the INA, 8 U.S.C. § 1182(a)(2)(A).

 

20. This exclusion ground does not apply to a foreign national who committed only one crime if...(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed...) did not exceed imprisonment for one year... Section 212(a)(2)(A)(ii)(II) of the INA, 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

 

21. Section 101(a)(43)(B) of the INA, 8 U.S.C. § 1101 (a)(43)(B)

 

22. Section 101(a)(43)(F) and (G) of the INA, 8 U.S.C. § 1101(a)(43)(F) and (G).

 

23. Section 321(a)(3) of IIRIRA.

 

24. Section 101(a)(43)(N) of the INA, 8 U.S.C. § 1101(a)(43)(N)

 

25. Section 321(a)(8) of IIRIRA.

 

26. Section 238(b)(5) of the INA, 8 U.S.C. § 1227(b)(5).

 

27. Section 322(a)(1) of IIRIRA.

 

28. Id.

 

29. Section 237(a)(2)(A)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(i).

 

30. Section 304(b) of IIRIRA.

 

31. Section 240A(a) of the INA, 8 U.S.C. § 1229b(a).

 

32. Under IIRIRA, the accrual of such time would stop at the time of the alleged offense or date of notice to appear for removal proceedings. Section 240A(d)(1) of the INA, 8 U.S.C.

 

§ 1229b(d)(1).

 

33. A third type provided relief for battered spouses. Section 244(a)(3) of the INA, 8 U.S.C. § 1254(a)(3). The requirements for this type of suspension have been retained in nearly the same form in the new provision for cancellation of removal for battered spouses. Section 240A(b)(2) of the INA, 8 U.S.C. § 1229b(b)(2).

 

34. Anthony Lewis, Punishing the Past, N.Y. Times, March 30, 1998, at A17.

 

35. Section 301(c) of IIRIRA.

 

36. Section 346 of IIRIRA.

 

37. Section 344 of IIRIRA.

 

38. Section 212(h) of the INA, 8 U.S.C. § 1182(h).

 

39. Section 348(a) of IIRIRA provides: "No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."

 

40. Section 301(b)(1) of IIRIRA.

 

41. Section 203 of the INA, 8 U.S.C. § 1153.

 

42. In fact, a person seeking asylum must establish that he meets the definition of a "refugee."

 

43. Section 349 of IIRIRA.

 

44. Section 212(i) of the INA, 8 U.S.C. § 1182(i). This change was made by IIRIRA even though the counterpart for this waiver in the context of deportation grounds did not have such a requirement. Section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H).

 

45. Section 345 of IIRIRA.

 

46. Section 212(a)(6)(B) of the INA, 8 U.S.C. § 1182(a)(6)(B).

 

47. Section 212(a)(6)(G) of the INA, 8 U.S.C. § 1182(a)(6)(G).

 

48. Section 212(a)(9)(A)(I) and (ii) of the INA, 8 U.S.C. § 1182(a)(9)(A)(I) and (ii).

 

49. Section 212(a)(9)(B)(I) of the INA, 8 U.S.C. § 1182(a)(9)(B)(I).

 

50. Section 1255(i) of the INA, 8 U.S.C. § 1255(i).

 

51. Section 212(a)(9)(B) of the INA, 8 U.S.C. § 1182(a)(9)(B).

 

52. Section 240B of the INA, 8 U.S.C. § 1229c. An Immigration Judge may also afford a person voluntary departure when adjudicating a removal proceeding.

 

53. Section 304(a) of IIRIRA.

 

54. Id.

 

55. Id.

 

56. Section 212(a)(4)(C) and (D) of the INA, 8 U.S.C. § 1182(a)(4)(C) and (D).

 

57. Section 212(a)(4)(A) of the INA, 8 U.S.C. § 1182(a)(4)(A).

 

58. Section 531 of IIRIRA.

 

59. Section 604(a) of IIRIRA.

 

60. Section 208(b)(1) of the INA, 8 U.S.C. § 1158(b)(1).

 

61. Section 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A).

 

62. Section 209(b) of the INA, 8 U.S.C. § 1159(b).

 

63. Section 207(d) of the INA, 8 U.S.C. § 1157(d).

 

64. The rationale is similar to the benefits in applying for naturalization provided to Hmong Veterans who served with special guerilla units or irregular forces in Laos during the Vietnam War.

 

65. Pursuant to the enactment of Public Law 103-416.

 

66. P.L. 99-603.

 

67. Reno v. Catholic Social Services, 509 U.S. 43 (1993).

 

68. Section 277 of the INA, 8 U.S.C. § 1327; Section 377 of IIRIRA. Section 377 of IIRIRA specifically provides that: "[N]o court shall have jurisdiction [to hear a claim by or on behalf of any person] unless such person in fact filed a [legalization application within the statutory filing period] or attempted to file a complete application . . . but had the application and fee refused by an [immigration] officer." Id.

 

69. IIRIRA and the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 (Aug. 22, 1996) ("PRWORA") were passed two years after the 1994 Violence Against Women Act offered protection to battered immigrant women. IIRIRA made it more difficult for battered immigrants to access lawful immigration status. Some changes included a cap on the number of cancellation grants a year, requiring "substantial connection" between abuse and unlawful entry, and a new definition of "continuous presence." Under PRWORA, battered immigrants were granted access to some public benefits, but across the board, this legislation significantly reduced access to public benefits for all immigrants. PRWORA eliminated eligibility for most immigrants for SSI and federal food stamps and gave States the discretion to determine whether immigrants can qualify for federal, state, and local public benefits programs. PRWORA also replaced AID to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF) programs, which States have the discretion to provide or deny. Considering the unique set of economic, cultural, and social barriers faced by battered immigrant women, lack of access to immigration status and public benefits increases the vulnerability of immigrant women who are victims of domestic violence. In addition, the 1998 CJS bill contained a provision that eliminated the benefits of Section 245(i) of the Immigration and Nationality Act for all immigrants seeking permanent residency status.

 

70. Section 101(b)(4) of the INA, 8 U.S.C. § 1101(b)(4).

 

71. Section 274(b) of the INA, 8 U.S.C. § 1324(b).

 

72. Section 642 of IIRIRA.

 

73. Section 133 of IIRIRA.

 

74. Section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A).

 

75. The provisions that are being eliminated illustrate the extreme rigidity and harshness of IIRIRA. Under the former provision, rights entitled to asylum seekers under the INA's asylum provisions, including the rights and processing requirements in INA section 208, can no longer be enforced by the foreign national. Under the latter provision, an asylum applicant who makes a good faith persecution claim that is deemed to be frivolous may be declared permanently ineligible for any benefits under the INA. This means that in addition to being declared ineligible for asylum, such a person would be removed from the United States as quickly as possible without any possibility of ever returning lawfully, regardless of the individual's circumstances.



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