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[Congressional Record: September 27, 2000 (Senate)]
[Page S9381-S9394]
From the Congressional Record Online via GPO Access []


      Mr. KENNEDY (for himself, Mr. Graham, Mr. Leahy, Mr. Kerry, Mr. 
        Wellstone, Mr. Durbin, and Mr. Feingold):
  S. 3120. A bill to amend the Immigration and Nationality Act to 
modify restrictions added by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996; to the Committee on the 

[[Page S9387]]

             the immigrant fairness restoration act of 2000

  Mr. KENNEDY. Mr. President, I am honored to join my colleagues, 
Senators Graham, Leahy, Kerry, Wellstone, Durbin, and Feingold in 
introducing the Immigrant Fairness Restoration Act. This legislation 
will restore the balance to our immigration laws that was lost when 
Congress enacted changes in 1996 that went too far.
  The 1996 law has had harsh consequences that violate fundamental 
principles of family integrity, individual liberty, fairness, and due 
process. Families are being torn apart. Persons who are no danger to 
the community have languished in INS detention. Individuals who made 
small mistakes and atoned for their crimes long ago are being summarily 
deported from the United States to countries they no longer remember, 
separated from all that they know and love in this country.
  The Immigrant Fairness Restoration Act will repeal the harshest 
provisions of the 1996 changes. It will eliminate retroactive 
application of these laws. The rules should not change in the middle of 
the game. Permanent residents who committed offenses long before the 
enactment of the 1996 laws should be able to apply for the relief from 
removal as it existed when the offense was committed. Unfair new 
consequences should not attach to old conduct.
  Our legislation will also restore proportionality to our immigration 
laws. Current immigration laws punish permanent residents out of 
proportion to their crimes. Relatively minor offenses are now 
considered aggravated felonies. Permanent residents who did not receive 
criminal convictions or serve prison sentences should not be precluded 
from all relief from deportation.
  Our proposal also restores the discretion of immigration judges to 
evaluate cases on an individual basis and grant relief from deportation 
to deserving families. Currently, these judges are unable to grant such 
relief to many permanent residents, regardless of their circumstances 
or equities in the cases. Their hands are tied, even in the most 
compelling cases, and deserving legal residents are being unfairly 
treated by these laws.
  In addition, our proposal will end mandatory detention. The Attorney 
General will have authority to release person from detention who do not 
pose a danger to the community and are not a flight risk. The 
traditional standards governing such determinations should be restored 
to immigrants. Dangerous criminals should be detained and deported. But 
indefinite detention must end. Those who have lived in the United 
States with their families for years, established strong ties in our 
communities, paid taxes, and contributed to the Nation deserve to be 
treated fairly.
  The 1996 changes also stripped the Federal courts of any authority to 
review the decisions of the INS and the immigration courts. As a 
result, life-shattering determinations are often now made at the 
unreviewable discretion of an INS functionary. Immigrants deserve this 
day in court, and our proposal will provide it.
  It is long past time for Congress to end these abuses. Real 
individuals and real families continue to be hurt by the unacceptable 
changes made four years ago.
  Armando Baptiste of Boston was recently featured in a column in the 
New York Times by Anthony Lewis. Armando came to the United States at 
the age of 9 from Cape Verde. As a teenager, he became involved in a 
gang and was convicted of assault. Later, he joined a church-sponsored 
group and turned his life around. He became a key figure in the city, 
helping other young people in the Cape Verdean community avoid the 
mistakes that he had made.
  But the 1996 law made Armando deportable as a result of his earlier 
conviction. In February, he was jailed by the INS, and he now awaits 
deportation. The immigration judge will not be able to consider his 
positive contributions to his community, his family ties, or the 
hardship that severing those ties will cause.
  Mary Anne Gehris was born in Germany and adopted by a family in 
Georgia when she was 2 years old. She is married and has two children, 
including a 14-year-old with cerebral palsy. Eleven years ago, she 
pulled another woman's hair during an argument and pled guilty to a 
misdemeanor. Although she never spent a day in jail, the crime is a 
deportable offense under the 1996 laws. Mary Anne was pardoned by the 
Georgia Board of Pardons this year. The Board does not usually grant 
pardons for misdemeanor convictions, but it decided to do so because, 
it said, the 1996 laws have ``adversely affected the lives of numerous 
Georgia residents.''
  Ana Flores also deserves a chance. For several years, she complained 
to police about physical abuse by her husband. In 1998, she bit her 
husband during a domestic dispute. Without consulting a lawyer, she 
pleaded guilty at the urging of a judge and was placed on probation for 
six months. Because the 1996 immigration law calls domestic violence a 
deportable offense, she is now being deported to Guatemala, even though 
she has two children who are U.S. citizens.
  We still have time to act this year to end these abuses. The House of 
Representatives has already passed legislation that is an important 
first step in this process, but it fails to deal with many of the most 
harmful aspects of the 1996 laws. The legislation we are introducing 
today is needed to end these festering abuses once and for all, and we 
urge Congress to enact it.
  Mr. GRAHAM. Mr. President, I rise today, with my colleagues, Senators 
Kennedy, Leahy, Durbin, Kerry, and Wellstone to introduce legislation 
that will help restore fairness and justice to our legal system.
  Our nation is known worldwide for our system of justice.
  We proclaim that everyone is equal under the eyes of the law.
  Since the passage of the 1996 immigration law and the Anti-Terrorism 
and Effective Death Penalty Act, this statement has been only partially 
  There have been thousands of individuals who have been, in simple 
terms, punished twice: once for a crime, even a very minor crime, that 
was committed, and once again for their immigration status.
  These are individuals who are legally here in the United States; but 
they are not U.S. citizens.
  I do a workday once a month.
  On these days I work a full shift on jobs ranging from garbage 
collection to teaching.
  In my 345th workday, in May 1999, I spent the day at the INS Krome 
Detention Center near Miami.
  I met individuals who had been legally present in the United States 
for years.
  They had committed a crime, and for that they had fully served any 
criminal sentence that was imposed.
  When I met them, they were being indefinitely detained by the INS 
solely because of their immigration status.
  Under the two laws we passed in 1996, the United States could not 
release them.
  And because we don't have a treaty with their country of origin--in 
this case--Cuba, we could not deport them.
  Cuba won't take them back.
  So we are locking up for life individuals who may have bounced a 
check, or stolen a car radio and have already been sentenced, and have 
completed their sentence, for those crimes by a court of law.
  Allow me to offer a few examples from my home state of Florida.
  Catherine Caza was born in Canada but came to this country as a legal 
permanent resident when she was three years old.
  She has always considered herself an American.
  Until recently, she had no reason to believe otherwise.
  Twenty years ago Ms. Caza made a terrible mistake. She sold drugs to 
an undercover policeman. For this she pleaded guilty and received five 
years probation--which she successfully completed.
  That was 20 years ago. Now she is 40 years old. She is the mother of 
a 7-year-old girl. She is attending college, hoping to someday become a 
social worker. The INS wants to deport her.
  Ms. Caza is scared, and justifiably so. She wonders how she will be 
able to build a new life for herself and her daughter, her American-
born daughter, in a country that is wholly unfamiliar.
  Roberto and Sheila Salas are facing an equally bleak future.

[[Page S9388]]

  Mrs. Salas dreamed of going overseas with the United States Air 
Force. Naturally, she planned to take her husband and two children with 
  Her husband, 31-year-old Roberto Salas, came to this country from 
Peru as a permanent legal resident when he was 17.
  At 19, he was sentenced to five years probation. He was released from 
probation two years early because he followed all the rules. He has 
followed the rules ever since.
  His family calls him a loving husband and father and a good provider. 
In 1997 he applied for naturalization so his wife could go overseas. 
Months later he was told that his adopted country was sending him back 
to Peru. The rules had changed.
  These are, as I have said, just two of countless stories from every 
state in the nation. This is not fair. This is not humane. This is 
simply not reasonable.
  Our legislation tries to restore a measure of sanity to the laws 
governing deportation of legal aliens.
  First and foremost: It is blatantly unfair to change the rules in the 
middle of the game. This is what we did in 1996.
  We passed a bill that applied new rules retroactively. We need to fix 
this. Under our legislation, if you committed a crime 10 years ago, the 
rules that will punish you will be the rules that were in place then.
  This bill restores proportionality to our immigration law. With the 
passage of Immigrant Fairness Restoration Act, the ``punishment will 
fit the crime.''
  Under our current law, an individual can be deported for very minor 
  They can be punished even if a judge and jury hand down no jail time.
  This person may have children who were born in this country, a spouse 
who is a U.S. citizen, even a business with many U.S. citizen 
  This legislation returns to judges the discretion they had before 
1996. There are some cases where deportation is the appropriate 
sanction. There are other cases where it is clearly not.
  Let's let judges look at the facts and decide instead of taking over 
their role and insisting on a one-size-fits-all system of justice.
  Let's not treat someone who stole a car as a teenager, served his 
time, and has since become a law-abiding productive adult, the same way 
we treat someone who has committed violent crimes over and over again.
  Let's also not lock someone up for life because they have the bad 
fortune to come from a country that won't take them back. Long-term 
detention is an extremely powerful judicial tool.
  We ask that the INS use this action only when necessary--not as a 
first option.
  This is a very difficult issue to advocate. These are criminals. I 
absolutely believe they should be punished. They should fully repay 
their debt to society through incarceration, monetary restitution, 
community service, or any other sanction.
  Judges and juries decide these punishments, and the legal immigrant 
should fully comply with each and every decision. However, from that 
point on, they should be allowed to start over.
  As Americans, we cannot and should not re-punish them.
  What we are doing now is locking up everyone: car radio thieves, 
check bouncers, and others, all mixed in with the most dangerous 
felons. Everyone should get an equal change to plead their case.
  Experienced judges should have the discretion to keep together 
American families who now face the prospect of lifetime separation. I 
do not want a mass release of legal immigrants who pose a threat to our 
  However--I do want fairness and discretion restored to all those who 
legally live in the United States.
  Mr. LEAHY. Mr. President, I am proud to be a cosponsor of a bill as 
important as the Immigrant Fairness Restoration Act, which would 
restore a number of the due process rights that were taken away by the 
passage in 1996 of the Illegal Immigration Reform and Immigrant 
Responsibility Act (IIRIRA) and the Anti-Terrorism and Effective Death 
Penalty Act (AEDPA). With those laws, we turned our back on our 
historical commitment to immigration and the rule of law. It is long 
past time to undo the damage that was done then, and this bill provides 
an excellent foundation for such important change.
  First, this bill would eliminate the retroactive effects of the 1996 
laws. Those laws not only contained new and overly harsh provisions 
calling for increased deportations for minor offenses, it applied those 
new provisions retroactively. Under those laws, immigrants who may have 
committed a crime years before and had since gone on to live productive 
lives suddenly faced removal from the United States. Some had plead 
guilty to minor offenses--many of which did not even require jail 
time--with the understanding that such a plea would have no effect on 
their immigration status. And that was true at the time. But suddenly, 
with the passage of this law, they face removal and are not even 
allowed to apply for relief. They receive no due process, despite the 
fact that they have American families and legal immigration status.
  This part of our immigration law simply must be changed. I have 
previously introduced legislation that would at least provide 
noncitizen veterans of our Armed Forces the right to due process before 
being removed for past offenses under these laws--the Fairness to 
Immigrant Veterans Act (S. 871). This bill has the support of the 
American Legion, the Vietnam Veterans of America, and other veterans' 
groups. It is unconscionable that those who served our country would be 
forced to leave it for a crime they committed 20 years ago, under a 
different immigration law regime, without even receiving the chance to 
convince a judge that they deserve the opportunity to stay. But in 
truth, this country should not treat any immigrant in that way, and I 
welcome a total eradication of the retroactivity provisions of these 
  The Immigrant Fairness Restoration Act also refines the definition of 
``aggravated felony'' that was itself altered in the 1996 legislation. 
This redefinition will ensure that immigrants who commit relatively 
minor offenses will not be classified as aggravated felons and 
precluded from all relief from deportation. Current law is unfair even 
when it is not applied retroactively, and we must fight to restore the 
concept of judicial review in our immigration law. The United States 
has historically been committed to the idea that people should be 
judged as individuals, and that we are just to impose penalties--
whether they be criminal penalties or severe civil measures such as 
removal--because we have considered them carefully. We must return to 
that historical commitment.
  The bill will also return the definition of ``crimes involving moral 
turpitude'' to the pre-1996 definition of that term. Before the 1996 
laws were passed, an immigrant had to have been sentenced to a year in 
prison for a crime involving moral turpitude to be deportable. Today, 
any crime that could lead to a sentence of a year--even if a judge 
decides to impose no sentence whatsoever--qualifies as a crime 
involving moral turpitude. A one-year prison term requirement makes 
sense and could prevent great unfairness. Our immigration law should 
respect the decisions of judges and juries, not seek to undermine them.
  This bill also touches on an area that I have worked on extensively--
expedited removal. Expedited removal allows low-level INS officers with 
cursory supervision to return people who enter the United States to 
their home countries without opportunity for review. Although those who 
say they fear returning are given the opportunity for a credible fear 
hearing, there is ample evidence that that protection is insufficient 
to help those who have learned to fear authority in their native lands, 
or those whose grasp of English is halting or nonexistent. Senator 
Brownback and I last year introduced S. 1940, the Refugee Protection 
Act, which would restrict the use of expedited removal to immigration 
emergencies, as certified by the Attorney General. I have been greatly 
disappointed that the Judiciary Committee has not scheduled a hearing 
on this bipartisan bill. I hope that we can still take action in this 
Congress to resolve this critical human rights issue. Meanwhile, I 
strongly support this bill's provision to restrict the use of expedited 
removal to our ports of entry. The INS has recently begun implementing 
expedited removal inside the United States. I believe an expansion of 
this program is inappropriate,

[[Page S9389]]

considering the bipartisan movement in Congress to reevaluate its 
existence even at our ports of entry. This bill will limit expedited 
removal's growth while we continue our efforts to restrict its use 
  I would also like to note this bill's restoration of the authority of 
federal courts to review INS decisions. Portions of this authority were 
stripped in both 1996 bills, a move I opposed at the time and continue 
to oppose today. Congress should not be in the business of 
micromanaging the federal docket, especially in politically sensitive 
areas such as immigration law. We should restore the pre-1996 status 
quo and give federal courts back the power we improvidently removed in 
the midst of the anti-immigration movement that seized this Congress.
  I have highlighted only some of the excellent provisions in this bill 
today. This legislation also contains good provisions addressing the 
detention of immigrants, and allowing immigrants who have already been 
deported under the 1996 laws to reopen their cases. We cannot be 
content simply to fix these problems while ignoring those who have 
already been harmed by them. Rather, we must find a way to rectify the 
situations of those who have been treated unfairly over the last four 
  Although it is late in this Congress, there is a real opportunity for 
action on these issues. The House has already passed bipartisan 
legislation eliminating some of the retroactive effects of the 1996 
laws. That legislation is not comprehensive enough in my view, but it 
is a good start, and it shows that members on both sides of the aisle 
are concerned about the effects--perhaps unintended--of those laws.
  I would like to thank Senator Kennedy and Senator Graham for their 
hard and consistent work on these issues. I am happy to be able to join 
with them and I hope that we can work together to gain attention for 
this bill, and convince our colleagues and the Administration that 
these are changes that need to be made this year.