I. INTRODUCTION AND SCOPE OF ARTICLE
For many years, the debate in our country over immigration law and policy has raged throughout the land. How shrilly, stridently, and acrimoniously this argument reverberated, and what remedies were suggested for perceived problems has depended largely upon the ethnic population in that section of the country which played host to the debate. Emotions run high and are often publicly vented in local neighborhoods, cities, and our nation's capital as we consider the controversy in moral, economic, and political terms. This is the backdrop that led to the passage of IIRAIRA on September 30, 1996, and currently, the enactment of this harsh, massive anti-immigration legislation.
The article addresses the highlights of IIRAIRA and attempts to summarize the important aspects and ramifications of this legislation. It is not intended to be an exhaustive discussion and analysis of IIRAIRA.1 This article briefly focuses on five main topics of IIRAIRA consisting of new grounds of inadmissibility, new removal proceedings, asylum changes, nonimmigrant changes, and public benefits and affidavit support.
II. NEW GROUNDS OF INADMISSIBILITY
The following is a list of new grounds of inadmissibility that has been implemented by IIRAIRA and incorporated into the Immigration Nationality Act (INA):2
- Under health-related grounds, an individual seeking admission as an immigrant or seeking adjustment of status is prevented from obtaining resident status if he or she is not in compliance with INA § 212(a)(1)(A)(ii). This section requires that the individual present documentation of vaccination against vaccine-preventable diseases;
- Under economic grounds, an individual seeking admission or adjustment of status must be in compliance with INA § 212(a)(4)(A)and(B). This provision modified previous documentary requirements for proving that an individual will likely not become a public charge by requiring the sponsoring individual to execute a stringent and legally binding and enforceable affidavit of support (Form I-864);3
- Under labor provisions, a health-care worker other than a physician is inadmissible unless, he or she complies with INA § 212(a)(5)(C) which requires the alien to present a certificate from the Commission on Graduates of Foreign Nursing Schools, or a certificate from an equivalent independent organization approved by the Attorney General in consultation with the Secretary of Health and Human Services verifying an alien's education, license and experience;
- Under the category of immigration violators, we have several new grounds of inadmissibility:
A. An alien present in the United States without being admitted or paroled, or who arrives in the U.S. at any time or place other than as designated by the Attorney General is inadmissible under INA § 212(6)(A)(i);
B. An alien who fails to attend a removal proceedings is inadmissible for five years from the alien's departure or removal under INA § 212(6)(B);
C. An alien who falsely represents himself to be a U.S. citizen for any purpose under the INA or any federal or state law is inadmissible for five years from the alien's departure or removal under INA § 212(6)(C)(ii);
D. An alien admitted as a nonimmigrant who obtains benefits for which the alien is ineligible through fraud or misrepresentation under Federal Law is inadmissible for five years from the alien's departure or removal under INA § 212(6)(C)(iii);
E. An alien subject to a final order for violation of section 274(C) is inadmissible under INA § 212(6)(F);
G. An alien who obtains the status of a student (F-1), and who violates the terms or conditions of such status is inadmissible for five years from the date of the violation under INA § 212(6)(G);
- This new section referenced under "aliens unlawfully present," demonstrates the far reaching provision and probably the most controversial and draconic effect of IIRAIRA.
A. Under INA § 212(a)(9)(A)(i), an alien ordered removed from the U.S. is inadmissible for five years and inadmissible for twenty years for any subsequent removal, or if removed due to a conviction of an aggravated felony defined by INA § 101(a)(43);4
B. Under INA § 212(a)(9)(A)(ii), an alien not described under the above section who has been ordered removed, or who has departed the U.S. while an order of removal was outstanding is inadmissible for 10 years and 20 years for any subsequent removal, and permanently for aliens convicted of an aggravated felony;
C. Under INA § 212(a)(9)(B)(i)(I), an alien who is unlawfully present in the U.S. for more than 180 days, but less than one year, who voluntarily depart from the U.S. prior to the commencement of removal proceedings is inadmissible for three years. An alien who is unlawfully present in the U.S. for more than one year, who voluntarily departs from the U.S. prior to the commencement of removal proceedings is inadmissible for ten years under INA § 212(a)(9)(B)(i)(II). The time in unlawful status before April 1, 1997 is not counted. The key to interpreting this provision hinges on several terms which consists of "unlawful presence" and "authorized stay by the Attorney General."5 INA § 212(a)(9)(B)(i)(III) exempts these individuals from the above grounds of inadmissibility if they are minors (under 18), asylees (those who have been a bona fide pending application for asylum who have not engaged in unauthorized unemployment), beneficiary of the family unity protection under section 301 of the INA of 1990, battered women and children, alien who has filed a non-frivolous application for change of status, and an immigrant who is a beneficiary of a waiver based upon extreme hardship to the citizen or resident spouse, son, or parent.
- Under the miscellaneous category, an alien who votes in violation of any federal, state, or local statute or regulation is inadmissible under INA § 212(A)(10)(D). Under INA § 212(A)(10)(E), a former citizen of the U.S. is inadmissible if he or she renounced U.S. citizenship for the purpose of avoiding U.S. taxation.
III. NEW REMOVAL PROCEEDINGS
To fully appreciate and understand the new removal proceedings established by IIRAIRA in Section of 235, 236, 239 and 240 of INA, one must look back at the previous mechanism which consists of deportation and exclusion proceedings. In the past, the concept of "admission" was a crucial factor that determined whether an alien would be subject to deportation or exclusion proceedings. Generally, an alien who has been placed in deportation proceedings was provided more rights and reliefs as opposed to exclusion proceedings. The above aforementioned section implemented by IIRAIRA destroys this differentiation, and creates a process known as removal proceedings which covers the entire mechanism for dealing with aliens who are in violation of INA.
This section will briefly summarize the new removal proceedings with regards to its mechanisms, and general reliefs that are available. These new removal proceedings arises in two context: expedited removal and removal proceedings.6
- Expedited Removal Proceedings
A. General Nature and Applicability
INA § 235 and 236 establishes the expedited removal process. The statute eliminates evidentiary hearing or administrative or judicial review for two class of aliens and allows an immigration officer to enter an order of removal. The two classes of aliens consists of: aliens who are deemed admissible at the port of entry who failed to possess valid travel and/or visa documents, or for possessing false travel or visa documents, and the second class of aliens consist of those who enter without inspection and cannot satisfactory show an immigration officer that he or she has continuously resided in the U.S. for at least two years immediately prior to the date of admissibility determination. One caveat regarding those who enter without inspection and can establish more than two years of continuous physical residence is that the statute allows for the Attorney General in her discretion to modify the application of expedited removal process for aliens regardless of the amount of continuous physical residence.
Pursuant toINA § 235 and 236, there are two exceptions for the application of expedited removal proceedings; they apply to those who are Cuban citizens who arrived only through aircraft, and those who manifest intention to apply for asylum.
- Removal Proceedings
A. General Nature and Applicability
If the alien has been admitted or those who enter without inspection and resided in the U.S. continuously for more than two years, the applicable process of removal is defined under INA § 239, 240, 242 and 243. The process commences with the filing of new charging documents, otherwise, known as Notice To Appear (NTA)7 with the Immigration Court. The NTA basically contains information regarding the nature of the proceedings, the charges against the alien, and the relevant statutory provisions for the alleged act, warnings regarding failures to appear, notice, and time and place of the hearing.
B. General Forms of Relief
a. Voluntary Departure
Under INA § 240, the periods of voluntary departure are severely limited under these proceedings. The INS or the Immigration Judge prior to the conclusion of proceedings are limited to a maximum of 120 days of voluntary departure. If the hearing is concluded, the immigration judge is limited to issuance of a maximum of 60 days of voluntary departure if the alien has been physically present in the U.S. for a period of at least one year immediately preceding the date of the NTA was served to the alien pursuant to INA § 239. Various forms of mechanisms are in place to insure compliance which consist of posting bond to guarantee departure, surrendering passport or travel document. Furthermore, failure to depart will result in ineligibility for a period of ten years of voluntary departure and various other forms of reliefs available in removal proceedings. In addition, the alien will be subjected to a civil penalty fine between $1,000 to $5,000.
b. Adjustment of Status
The immigration judge still has the jurisdiction to grant an adjustment of status under INA § 245.
c. Cancellation of Removal
INA § 240A allows certain permanent residents to make an application for the cancellation of removal proceedings. In order to qualify for this provision, an individual must establish that he or she is an alien lawfully admitted for permanent residence for not less than five years, has resided in the U.S. for 7 years after having been admitted in any status, and has not been convicted of an aggravated felony.8 Also, under INA § 240A, cancellation of removal and adjustment of status for certain nonpermanent resident allows for an alien to become a permanent resident if he or she has been physically present in the U.S. for more than ten years immediately preceding the date of such application, has been a person of good moral character for such time, has not been convicted of an aggravated felony, and establish that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a U.S. citizen or a permanent resident.9 A more distressing aspect of this statute places a cap of adjustment of 4,000 per year. Currently, this is subject of litigation since the cap was exceeded in the previous fiscal year.10
d. Waiver of Inadmissibility
Various waivers are still available in removal proceedings consisting of various grounds such as medical grounds or misrepresentation, etc. However, we will discuss one waiver of interest which is the 212(h) waiver. This section provides for a discretionary waiver of a single offense of 30 grams of marijuana, crimes of moral turpitude, two or more convictions with aggregate sentences exceeding five years or more, and prostitution. INA 212(h)(2) effectively eliminates this waiver for aliens who have been convicted of an aggravated felony. Strangely enough, the same bar does not apply to an alien who is seeking adjustment of status and applies for the 212(h) waiver. This result will give rise to constitutional challenges in the future.
e. Curtailment of Judicial Review
INA § 242 dramatically seeks to eliminate judicial review for various denial of discretionary relief from the Immigration Judge and the BIA. The statute explicitly states "no court shall have jurisdiction to review any judgement regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245." Likewise, final orders against criminal aliens are not reviewable by any courts. These provisions will be subject to strict scrutiny by courts. Recently, a federal district court in New York, rejects this statute and held that it still has jurisdiction to review under its general habeas corpus powers Title 28 § 2241.11
IV. ASYLUM CHANGES
There are several major changes affecting asylum seekers under IIRAIRA. First, the new law requires that the applicant file for asylum within one year of arrival or one year after April 1, 1997, whichever is later in time.12 The only exception to this one year period is changed country condition which materially affects the applicant's eligibility or "extraordinary circumstances" relating to filing. Under INA § 208(d)(6), if an Immigration Judge or the Board of Immigration of Appeals make a finding that a frivolous application was filed by the applicant, then that applicant will be barred permanently for any other immigration benefits. If the applicant is convicted of an aggravated felony, then he or she will be statutory ineligible for asylum.13 Also, discussed earlier under INA § 235, is that applicants seeking to apply for asylum may be severely restricted since an immigration officer will make an initial assessment of the existence of a "credible fear." If there is a negative determination, the applicant can ask an immigration officer to review this finding within seven days. If the Immigration Judge concurs, the applicant will stay in detention and be removed by the INS. If the Immigration Judge finds credible fear, the applicant will be placed in removal proceedings in order to apply for asylum. There is no review of the Immigration Judge's decision.
V. NONIMMIGRANT CHANGES
IIRAIRA amends INA § 222(g) to affect aliens who overstay their authorized nonimmigrant stay. This provision only deals with aliens who enter under a visa issued by a consulate. This provision does not affect those who enter pursuant to the Visa Waiver Pilot Program. For those who entered on a visa and overstays beyond the nonimmigrant stay, their nonimmigrant visa previously issued is automatically void, and there are no exceptions to this. Even one day of overstaying will result in a void visa. Furthermore, the alien must obtain another nonimmigrant visa in the country of the alien's nationality.
There are two exceptions to obtaining a visa from the alien's home country. First, if there is no consular office in that country, the alien must travel to the designated country determined by the Department of State. Second, an exception will be made upon satisfactory demonstration to the Department of State that there exists extraordinary circumstances.
Other changes brought by IIRAIRA which can affect nonimmigrants are discussed earlier with respect to the 3 year to 10 year bar under INA § 212(a)(9)(B)(i)(I) and (II).14 Also, major changes for nonimmigrant under the student status are addressed in IIRAIRA. INA § 212(a)(6)(G) excludes any alien who obtains F-1 status on or after November 30, 1996, and subsequently uses that status to attend a public elementary school, attend publicly adult education, or attend a public high school without reimbursing the school authority for the cost of the education.
VI. PUBLIC BENEFITS AND AFFIDAVIT OF SUPPORT
Provisions restricting noncitizen from receiving public benefits are outside the scope of this article and author's expertise. The Welfare Legislation and IIRAIRA will bar most non-citizens from receiving food stamps and Supplemental Security Income.15
A major provision enacted by IIRAIRA is INA § 213A. This provision implemented four major changes to the affidavit of support. The current affidavit of support (I-134) only requires the executor of this document to agree to support the alien for three years.
Furthermore, the executor could be a friend, relative, or an employer, and they did not have to be U.S. citizen or permanent resident. This affidavit of support was not legally enforceable and constituted only a moral obligation.
The changes brought by INA § 213A will be released shortly with a new form, I-864. This new affidavit of support will be legally enforceable. The sponsor must agree to maintain the alien at an annual income of at least 125 percent of the poverty income line.16 If the sponsor fails to maintain the alien at this level or if the alien receives any benefits "means-tested program"17, then the sponsor can be sued within ten years after the benefit was provided. The sponsor must pay the amount of benefit plus attorney's fees, court costs, and costs that are incurred with collecting the judgement. The sponsor must be a U.S. citizen or permanent resident who is at least 18 year of age and must demonstrate an annual income equal to at least 125 percent of the poverty income guideline. Furthermore, the sponsor must be domiciled within the U.S. or its territory. The sponsors have a liability for a period until the immigrant is naturalized, or until the immigrant earns or works for 40 qualifying quarters under social security purposes. Last, the sponsor has a continuing obligation to inform the INS and the State within 30 days of any new address or be subject to a civil fine ranging from $250.00 to $5,000.00.
IIRAIRA is a massive and complicated piece of legislation which is basically anti-immigration. In the coming months, many changes are in the works to interpret, clarify, and amend this legislation. It is important for those who are advocates for immigrants to understand these changes and use the political channel to undue the excess of this draconic legislation.
Published by the Institute of Continuing Legal Education in Georgia
- For a fuller discussion and analysis of IIRAIRA, see AILA's 1997-1998 Annual Handbook, AILA's New Law Handbook, and Interpreter Releases' publication Understanding The 1996 Immigration Act.
- The new provision of IIRAIRA will be cited under the incorporated section of Immigration Nationality Act (INA).
- The details of this requirement will be discussed later in this article under "Affidavit of Support."
- It is outside the scope of this article to engage in a discussion about the new definitions of an aggravated felony. However, IIRAIRA dramatically redefines the definition of what constitutes an aggravated felony and the definition of a conviction under the INA. In addition, IIRAIRA's definition of an aggravated felony is retroactive; therefore, the date of the conviction is immaterial. This is a highly significant point as an alien that is convicted of an aggravated felony is severely restricted from making any applications for benefits under INA. For a more detail discussion about this subject, please refer to the suggestion of footnote supra 1.
- At the time of writing this article, the regulations interpreting this section of IIRAIRA have not been released to the public. Paul W. Virtue, Acting Executive Associate Commissioner, and his office have produced several field memos interpreting this provision to apply only to those who have physically departed the U.S. and defining the provision what constitutes "unlawfully presence" or "period of authorized stay by the Attorney General." For details about this area, we ask that you review the memos and carefully review regulations that are promised by Mr. Virtue shortly before October 1, 1997.
- For a fuller discussion of this process, please review the above suggested publications set forth in footnote no. 1.
- A sample Notice to Appear is attached to the appendix of this article.
- This section replaces the previous waivers under the prior law known as the "212(c) waiver." This waiver was available to permanent residents who had been convicted of serious crimes even aggravated felonies as long as they have not served not more than five years of actual incarcerations for the crime.
- This addition to IIRAIRA is the replacement of suspension of deportation that existed under the prior law. Previously, an alien needed only seven years of continuous physical residence, good moral character, and extreme hardship to the alien or to his U.S. citizen or permanent resident's families or relatives.
- The INS has taken the position that the 4,000 cap limits the grant of 4,000 cases per year by an Immigration Judge. AILA and various other immigrant advocates argue that the statute authorizes the immigration judge an unlimited number grant of suspension but limits the number of adjustments to 4,000 per year. The remaining number of people granted suspension after the 4,000 cap is exceeded would be placed in a waiting line similar to those granted asylum.
- The court reasoned that if the government's interpretation of the statute would hold up then the entire deportation process would be entrusted nearly exclusively to the Executive Branch. Mojica v. Reno, Case No. 97 CV 1085 and Navas v. Reno, No. 97 CV 1869.
- See INA § 208(a)(2)(B).
- In the past, the test was to determine whether the person has been a convicted of a particularly serious crime for a finding of statutory ineligibility of asylum. This test involves a court or an asylum officer making a determination that the person convicted of this particularly serious crime would constitute a danger to the community or if there are reasonable grounds for regarding the alien as a danger to the security of the U.S. Under INA § 208(b)(2)(B), an aggravated felony is deemed to be a particularly serious crime. This is a crucial point because under IIRAIRA the definition of an aggravated felony is extremely expansive and in some case can even consist of a misdemeanor conviction.
- The danger for those who are in the U.S. on a nonimmigrant status is that even if they have a minor violation of their status then presumably the applicable bar three to ten years bar may apply depending on how long they are considered in "unlawful presence" or not "authorized to stay by the Attorney General." If that is the case, they must remain either from three or ten years outside the United States.
- Furthermore, there are current discussions regarding some remedial legislation surrounding this area. For a fuller discussion of this subject, please see AILA handbook's article Immigrant Sponsorship and Public Benefits.
- The poverty income guideline is attached in the appendix.
- "Means-tested program" has not been actually defined yet. However, the general consensus is that the following program will be considered as a "Means-tested program:" Medicaid, Food Stamps, Supplemental Security Income, and Temporary Assistance for Needy Families. Future developments will be very important as this term is defined.