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Involuntary Migrants Face Harsh Consequences of Immigration Law Reforms
by Jonathan Montag

Recent events help highlight a particular humanitarian crisis that has resulted from the immigration "reforms" that were passed by Congress and signed by former President Clinton on September 28, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The recent events include two recent Supreme Court decisions. The first, INS v. St. Cyr, 121 S.Ct. 2271 (US Jun 25, 2001), makes clear that habeas corpus review still exists for aliens being deported for past criminal or immigration violations. The court also held that an old form of relief is available for old criminal or immigration violations. The second decision, Zadvydas v. Davis, 121 S.Ct. 2491 (US Jun 28, 2001), holds that the IIRIRA does not authorize life imprisonment for aliens ordered deported who have nowhere to be deported to. Another recent event is the discussion by the US Bush Administration and the Mexican Fox administration of some kind of "legalization" or "regularization" of undocumented Mexicans in the United States.

These events highlight that some harsh things resulted from the 1996 law and that implementation was even harsher than it had to be. Much has been written about the harsh impact of the 1996 laws on aliens who committed crimes in the past and their families, particularly aliens whose past criminal activity was minor or for only a brief period, but who face deportation without any opportunity for relief, leaving behind wives and children, and returning to countries they have at best distant memories of. Another group was also severely adversely affected. This group consists of non-criminal aliens who have lived in the United States for many years and are being deported not because of conduct, but because of lack of immigration status.

Before the 1996 laws came into effect, aliens who lived in the United States continuously for seven years, with or without documents, were often eligible to obtain permanent residence through a form of relief called "Suspension of Deportation," found at INA Sec 244(a)(1). The standard for granting suspension was a high one. The alien had to demonstrate extreme hardship to himself or herself, or to a parent, spouse, or child who is a United States citizen or lawful permanent resident. Also, there was a requirement of being a person of good moral character. While the standard was a high one, it was not impossible to meet, and many aliens who had been in the United States and could demonstrate extreme hardship and dood character were granted permanent residence through this relief. Sometimes immigration judges and INS officials were generous and sometimes they interpreted the laws unusually strictly. Though not an entirely fair statute and though sometimes not fairly administered, nonetheless, for many aliens there was at least a form of relief available.

One class of aliens that did benefit from Suspension of Deportation was young adults who came to the United States as children and were raised in the United States. Immigration courts, and even INS attorneys, were often sympathetic to the plight of people who came to the United States at a young age, were essentially raised in the United States, and then subject to being deported to countries of which they had no memory or experience, particularly after attaining some degree of accomplishment in the United States. Thus, high school scholars and athletes and even regular kids would be granted Suspension of Deportation and issued permanent resident visas because of the extreme hardship they would face if they had to leave the country. Further, in years past, these same youngsters often had other forms of relief available to them. Ten or fifteen years ago, it was usual for these children's parents to have entered before January 1, 1982, and to have been applicants for amnesty. If these children also entered before this date, they too could benefit from amnesty. For those children who entered the United States before May 5, 1988, whose parents were amnesty eligible, the children would have been eligible for "family unity," rendering them non-deportable until their legalizing parent was able to immigrate them. See, Immigration Act of 1990, Pub. L. No. 101-649, ' 301, 104 Stat. 4978. Further, as parents often became permanent residents through amnesty and could then petition for their children, their children could adjust their statuses through a parent.s petition with the passage of time. Of course there were always some kids who fell through the cracks and were ineligible for Suspension of Deportation, amnesty, and family unity. In situations where an alien got caught at the border, he or she could not seek suspension, which was only available to those that accomplished a legal or illegal entry into the United States. Sometimes an alien failed to meet the continuous presence requirement for suspension. As for family unity, a child would become ineligible if his or her parents never filed for amnesty or if the parent was ineligible for amnesty, if the child waited too long to apply for family unity (i.e., the child turned 21); the parent failed to petition for the child before the child turned 21, or the petitioning parent died before the child could adjust status through the parent, or the child married. While the classes of people who fell between the cracks was large, at least there was relief available to many of these involuntary migrants.

The 1996 laws did away with this option for most of these children. The new law replaced Suspension of Deportation with a new form of relief, Cancellation of Removal for Certain Nonpermanent Residents, found at INA Sec 240A(b). For Cancellation of Removal, the length of time of continuous presence was increased from seven to ten years. Harsh cutoff provisions came into force (retroactively affecting Suspension of Deportation cases as well). The people to whom hardship had to be shown could no longer include the alien himself or herself - only hardship to a parent, spouse, or child, who is a Untied States citizen or lawful permanent resident counted. Also, the hardship standard was elevated to one of "exceptional and extremely unusual hardship" from "extreme hardship." At the same time, with the passage of time, it has become more and more unlikely that a parent or the child himself will have been eligible for amnesty or the child eligible for family unity. With the diminished chance that the parent can attain lawful permanent residence because the amnesty option does not exist any longer, there is also less chance that the child would have a lawful permanent resident or citizen parent whose hardship would qualify him or her for Cancellation of Removal or could even petition for the child. This renders the child without relief.

As a consequence, not a week goes by where an undocumented young man or woman does not come to my office to inquire about legalizing. The young man or woman is often a long-term resident whose parent brought him or her as a child. The parents may or may not have found a way to become residents or citizens, but even if a parent or parents have gotten residence of their own, the opportunity for the child to benefit from a parent.s fortune has most often passed except for the possibility of applying for Cancellation of Removal, which is dramatically harder to win because of the more stringent requirements and often impossible to even be eligible for. If the parent has not become a permanent resident, there probably is not even a qualifying relative, and thus there is often nothing that can be done. While with time, a parent who has found a method of legalizing his or her status can legalize the child, a child who finds himself in removal proceedings may lack the time necessary for a petition to become current. The child could also legalize if he or she marries a United States citizen depending on other factors. (A permanent implementation of INA ' 245(i) would go a long way to help people able to adjust status through parents or spouses as 245(i) allows aliens to adjust status despite entering without inspection or being out of status. Not having to leave prevents being faced with the three and ten year bars of INA ' 212(a)(9)(B) punishing those with .illegal presence. in the United States..)

People who consider the plight of undocumented aliens in the United States and their humanitarian treatment are of mixed minds about what a just solution to the problem is. One would hope there can be more unity about humanely resolving the situation of young people who find themselves in the United States and have been here for many years without any opportunity to legalize their statuses and for whom the act of being here without proper documentation is not their own fault, but the fault of their parents. As the situation is now under the current immigration laws, the "iniquity" of the fathers (and mothers) is visited on the children. A more humane approach would be instead to visit mercy. If reforming the laws to help solve the problems of the undocumented needs to be done incrementally, this is a great place to start.

About The Author

Jonathan D. Montag has been practicing Immigration Law in San Diego since 1994. He works at the Law Offices of Jonathan D. Montag in San Diego, California. He previously worked as an attorney at the firm of Jan Joseph Bejar, A P.L.C. Mr. Montag graduated the University of San Diego School of Law in 1994. While in school he interned at the Superior Court of California for the County of San Diego. Mr. Montag was the Vice Chapter Chair of the San Diego chapter of the American Immigration Lawyers Association in 1999-1200 and edited AILA's 12 Annual California Chapters Conference Handbook in which his article, "Detention and Bond", an overview of current immigration detention and bond law and policy, appeared. Mr. Montag co-wrote a course book and lectured at a seminar, Legal Writing for Paralegals, conducted by the Institute for Paralegal Education in San Diego in December 1999. He lectured at the 2001 AILA Convention in Boston, Massachusetts, on the subject of aggravated felonies and taught at the State Bar of California.s Winter 2001 Section Education Institute on the subject of Immigration Consequences of Crime.

Jonathan D. Montag
Law Offices of Jonathan D. Montag
P.O. Box 124801
San Diego, California 92112