Tolerance No more

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.

However, there is one facet of immigration law and policy which finds few defenders except among immigration attorneys and the families affected by those laws. This well kept secret is the benefit which allows permanent resident aliens to apply for a waiver of serious crimes to escape deportation. Found in Section 212(c) of the Immigration and Nationality Act, the waiver is naturally called a "212(c) waiver." The purpose of the waiver is to protect from deportation those individuals who undoubtedly have rehabilitated and reformed their lives, and to ensure unification of the family.

To qualify for the waiver, permanent residents are required to meet a series of criteria: the alien must have maintained seven years of domicile in the United States; he or she must be able to show complete rehabilitation; the alien must be able to prove that deportation would cause extreme hardship to either him or herself or his or her family members;¹ and finally, he or she must prove to the Court that his or her case warrants the exercise of discretion. Serious drug offenses, burglary, assault with firearms, defrauding the government, and attempted murder are a sampling of the types of serious crimes which would make a permanent resident deportable under U.S. law. The complete list of deportable offenses is, in fact, quite long, and when one considers that these are merely generic examples, one can understand the impatience displayed by those who criticize the law and the practices followed by INS and the courts who review its decisions.

On April 24, 1996, bending to the winds of change, Congress enacted the AEDPA, an acronym for the "Antiterrorist and Effective Death Penalty Act of 1996." As most well know, this legislation was drafted in the wake of such terrorist activities as the World Trade Center bombing and the tragedy in Oklahoma City. However, the bill had many unrelated riders attached to it by Congressional zealots who took advantage of the popularity of the anti-terrorism bill and realized that the President could not, with political sanity, veto such legislation.²

In fact, AEDPA goes far beyond its intended reach. Despite the fact that lawful resident aliens were not responsible for the terrorist activities decried by our legislators, the sweep of AEDPA extends to all who have committed aggravated felonies in the past,³ as well as future crimes, notwithstanding any mitigating factors or hardships imposed on United States citizen relatives of the deportable permanent residents. AEDPA intentionally and specifically eliminates the 212(c) waiver of the crimes enumerated therein, including most felony drug, firearm, and other violent crimes. It forbids appellate review of Board of Immigration Appeals ("BIA") decisions denying 212(c) relief. For terrorist activities, it provides inter alia a federal death penalty.

Undoubtedly, AEDPA will foment a mass of litigation, some of which seems intentional on the part of Congress. For example, AEDPA did not set forth an effective date, and at the time of enactment, there were over 2,000 applications for Section 212(c) relief pending. An immediate conflagration burst upon the immigration field concerning the availability of relief in those cases pending before the Immigration Judges (IJ's), the BIA, and the courts, and the initial judicial decisions on this issue showed a conspicuous lack of uniformity. In Atlanta and Phoenix, the IJ's granted the government's Motions to Pretermit in 212(c) cases. In Buffalo, they initially did so but then were persuaded to continue cases before them. Judge's were split in Houston. In Baltimore, judges ruled that AEDPA did not apply to cases involving convictions prior to April 24, 1996. Similar disparities appear in cases in Philadelphia and York, Pennsylvania.⁴

Finally on June 26, 1996, the BIA rendered a very split decision on the issue of retroactive application of AEDPA. In a seven to five decision, the Board ruled that it would accept appeals from those permanent residents who had been convicted of aggravated felonies and who had filed applications for the 212(c) waiver prior to April 24, 1996. However, review of the BIA's decision is being sought in the appellate court.⁵

In the Courts of Appeal, there exists a similar inability to predict this issue's ultimate ending based on existing precedent. Ruling that AEDPA removes jurisdiction to review pending cases challenging final deportation orders issued by the BIA, the 5th Circuit dismissed a case based on lack of jurisdiction⁶ (as did the 6th Circuit⁷). The 2nd Circuit accepted jurisdiction to review but dismissed the appeal for other reasons.⁸ In the 9th Circuit, the Court discussed the issue and found it had jurisdiction, but in the end, it did not grant relief to the petitioner.⁹

Given that President Clinton has expressed his view that the current law should be changed, the provision curtailing 212(c) relief in the Antiterrorist and Effective Death Penalty Act of 1996 may very well end up on the cutting room floor. If it does, then this litigation all would have been in vain. And that is a comment in itself.

Published in the Gwinnett County Bar Association Newsletter

2. When particularly serious crimes, like drug offenses and violent crimes, have been committed, the alien is required to show "unusual" and "outstanding" equities.
   
3. "The bill also makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents and restrict a key protection for battered spouses and children. The provisions will produce extraordinary administrative burdens on the Immigration and Naturalization Service. The Administration will urge the Congress to correct them in the pending immigration reform legislation." Press release by President William J. Clinton, April 24, 1996.
   
4. AEDPA §441(e) includes the following as aggravated felonies: murder, illicit trafficking in controlled substances, firearms violations, money laundering, explosive materials offenses, violent crimes, theft, burglary and receipt of stolen property, racketeering, engaging in prostitution business, fraud or deceit involving $200,000, tax evasion of $200,000 or more, alien smuggling, document fraud and trafficking in such documents, and others.
   
5. Press release by the American Immigration Lawyers Association (AILA), June 26, 1996.
   
6. In re Soriano, File #A39 186 067 -- Napanoch (BIA 1996)
   
7. Mendez Rosas v. INS No. 95-60472 (5th Cir. 1996)
   
8. Qasquargis v. INS, No. 96-3505 (6th Cir. 1996)
   
9. Hunter v. INS, No. 95-4227 (2nd Cir. 1996)
   
10. Lewin v. INS, No. 94-70867 (9th Cir. 1996)