Legislative Efforts to Restore Immigrant Rights
By Carol Leslie Wolchok
Although immigration is a national issue, not many members of the American public understand the intricacies of U.S. immigration law and policy, and relatively few voters consider it a priority. This year, however, immigration became a prominent political issue as both parties vied for the support of Hispanic and Asian voters.
Only four years ago, the 104th Congress enacted massive reforms and overhauled virtually every aspect of the nation's immigration law. Many due process protections, including judicial review, were eliminated from the deportation process, and new grounds of deportation were established that retroactively subject long-term legal immigrants to mandatory detention and automatic deportation for offenses committed long ago. Low-level immigration officers at airports and other points of entry were authorized to deport arriving immigrants and asylum seekers, and a special court was created to receive secret evidence against aliens in deportation proceedings. Other provisions imposed new financial obligations on an immigrant's sponsors, restricted legal immigrants and refugees from receiving a wide range of public benefits, and required service agencies to verify the citizenship or immigration status of individuals applying for public benefits. The 1996 reforms produced great anxiety and hardships for immigrants and their resident family members.
Several measures were enacted in the 105th Congress to lessen the punitive effects of the 1996 laws. Significant public benefits were restored for selected groups of immigrants and refugees, including food stamps, Medicaid, and Social Security (SSI). (Pub. L. 104-193.) "Suspension of deportation" relief that had been totally eliminated in 1996 was reinstated for nationals of certain Central American and former Eastern Block nations. In addition, Nicaraguans and Cubans benefited from a less stringent legalization program. (Pub. L. 105-306.) Haitians brought to the United States from Guantanamo in the early 1990s were provided opportunities to adjust to permanent immigrant status. (Pub. L. 105-277.) Also, $171 million was appropriated to relieve the naturalization backlogs caused by record numbers of immigrants applying for U.S. citizenship. (Pub. L. 105-277.) These victories bolstered the spirits of immigration advocates and set the stage to seek further improvements in the 106th Congress.
The American Bar Association (ABA) has been actively involved in many of the immigration policy debates of the last two decades. The ABA is guided by an array of policies concerning the substantive and procedural rights of immigrants and refugees, and immigration is an ABA legislative and programmatic priority. ABA President Martha Barnett recently called upon the nation's lawyers to volunteer their services to help meet the legal needs of indigent immigrants and refugees and has urged the United States Commission on Civil Rights to study the civil rights implications of our nation's immigration laws.
At the beginning of the 106th Congress, the ABA redoubled its efforts to restore legal protections for foreign-born residents and joined other organizations across the country in a campaign to "fix" the 1996 laws. The "Fix '96" campaign has five goals:
- To reestablish due process hearings with access to counsel when deportation is at stake;
- To restore discretion in the U.S. Attorney General to grant waivers from deportation;
- To eliminate retroactivity of the law so that new grounds of deportation cannot be used to deport people for crimes committed before the law was changed;
- To eliminate mandatory detention without a custody hearing or bond; and
- To ensure federal court review of immigration decisions and INS practices.
ABA leaders have addressed these issues in policy letters and opinion pieces, and they have been vocal in meetings with members of Congress and the administration. The issues also have received considerable media attention. News accounts in papers and broadcast media throughout the country carry stories of long-term immigrants whose families are fighting to halt their deportation for minor offenses committed long ago. They include men and women who were adopted as infants by U.S. citizen parents, refugees who were resettled in the United States and have no country or relatives abroad, and veterans of U.S. military service. These longtime residents paid for their mistakes and are now leading productive lives. Their families have organized to convince the American public that the new deportation rules unfairly punish their loved ones twice for the same crime.
Elected officials also have begun to recognize that the 1996 laws have gone too far. A number of bills were introduced in the 106th Congress to correct various aspects of the 1996 laws. Senators Edward Kennedy (D-MA) and Bob Graham (D-FL) introduced the Immigrant Fairness Restoration Act of 2000 (S. 3120) to repeal many of the most punitive provisions of the 1996 laws. Supported by the ABA, the legislation proposed to return to the Attorney General the authority to release from detention immigrants who are not safety or flight risks; to repeal retroactive portions of the law that require deportation for minor offenses that predate the 1996 laws; to expand the attorney general's discretion to grant relief from deportation on a case-by-case basis; and to restore the historic role of the judiciary in reviewing immigration decisions.
Several bills also were introduced in the House, among them H.R. 2999 by Representative Bill McCollum (R-FL) and H.R. 1485 by Representative Barney Frank (D-MA) and others, to correct what were characterized as the "unintended consequences" of the 1996 laws by permitting certain long-term legal immigrants to be considered for discretionary relief from deportation. In addition, Representative John Conyers (D-MI) introduced a comprehensive package of reforms, the Restoration of Fairness in Immigration Act of 2000 (H.R. 4966).
As the legislative session progressed, however, none of the corrective bills received a hearing or was the subject of further committee action in either house. In July 2000, Representative Henry Hyde (R-IL), chair of the House Judiciary Committee, brought together Representatives McCollum, Frank, and others to see what could be done. Their discussions led to the introduction of H.R. 5062, which would give legal immigrants with seven or more years of legal residence a chance to apply for discretionary relief to remain in the United States if their offense was committed before the law changed but was subsequently designated an "aggravated felony" for which deportation is mandatory. H.R. 5062 passed the House on September 19, 2000, by unanimous consent on the suspension calendar. Representative McCollum, H.R. 5062's main sponsor, was a leading proponent of the 1996 reforms and many earlier get-tough deportation provisions. His leadership in seeking reforms was significant to many colleagues and was expected to result in swift passage in the Senate, in which Representative McCollum was running for a seat. In fact, Senate passage seemed so certain before the election that White House Chief of Staff John Podesta wrote to Senator Orrin Hatch (R-UT), chairman of the Senate Judiciary Committee:
Indeed, there is bipartisan support for H.R. 5062 that would provide relief for certain individuals affected by changes in the 1996 immigration law. Such efforts would go a long way to achieving fairness in our immigration system. The time for finding a solution is upon us, and we look forward to working with you to achieve that end. I look forward to hearing from you regarding next steps.
The Senate, however, was also the scene of a contentious battle between Democrat and Republican lawmakers over legislation to increase the number of temporary "H-1B"-visas for skilled foreign professionals who are allowed to enter the U.S. each year. In addition to putting aside many longstanding objections to the importation of H-1B workers, the administration endorsed a package of remedies to provide legal status to immigrant workers already established in the United States. The H-1B Plus package, supported by a broad coalition of business, labor, civil rights, and religious organizations, would eliminate the disparate treatment of various immigrant groups and help others caught in bureaucratic limbo.
At the same time, agricultural employers pressed harder for legislation to expand the importation of temporary farm labor. Farmworkers, a predominantly immigrant population, are one of the most vulnerable and exploited groups of workers in the United States. The ABA opposes lowering the existing requirements that employers must satisfy and supports reforms to improve the wages and working conditions of U.S. farmworkers and to enable workers who are not legally authorized to work to obtain permanent immigrant status. Agricultural employers saw the H-1B Plus debate as a chance to enact a temporary guestworker program that the administration threatened to veto.
As the elections approached, the high-tech industry grew more impatient and insisted that the H-1B bill pass without the Plus or agricultural guestworker amendments, which it did. Meanwhile, President Clinton announced his intentions to veto the Commerce-Justice-State appropriations bill if it did not contain the Plus provisions that had been dropped from the H-1B legislation. Senator Orrin Hatch (R-UT) and other Republican senators countered with a more limited proposal. The White House and Senate were facing a stalemate when Congress recessed for the 2000 elections. After the elections, the White House and Congress finally agreed to provide relief for hundreds of thousands of immigrants who tried to legalize under laws passed in 1986 and for people who have waited years to reunite with family members. However, Congress did not resolve the status of Haitian, Salvadoran, and other long-term residents.
Given this backdrop, it is important to point out that several smaller but important immigration bills were enacted this year, including the Child Citizenship Act (Pub. L. 106-395), to eliminate many of the bureaucratic naturalization procedures for the children of U.S. citizens, and the Victims of Trafficking and Violence Prevention Act (Pub. L. 106-386), to crack down on international traffickers and expand protections for the immigrant victims of forced prostitution, sexual slavery, and domestic violence.
There is growing consensus that statutory reforms are long overdue. As part of a nation of immigrants founded on the principle of equal justice under the law, many Americans are uncomfortable with a two-tiered system of justice that deprives immigrants of fundamental legal protections and believe that guarantees of fairness and due process must be restored to our nation's immigration policy.
Carol Leslie Wolchok is staff director of the ABA Coordinating Committee on Immigration Law, which was established to review the nation's immigration laws; to coordinate immigration and refugee activities among ABA entities; and to educate members of the bar, the judiciary, the public, and affected individuals about immigration law and procedure.
Check These Out!ABA Coordinating Committee on Immigration Law: immcenter@abanet.org
ABA Immigration Pro Bono Development Project: nugentc@staff.abanet.org
ProBar: ProbarTX@worldnet.att.net
The California Rural Legal Assistance Foundation's Border Project: www.stopgatekeeper.org
