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The Effect The Illegal Immigrant Reform & Immigrant Responsibility Act of 1996 (IIRIRA) and Case Law Since The Effective Date of April 27, 1996

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In 1996, Congress passed a shocking immigration Bill and President Clinton signed it into Law. The "new" law, at that time, was called the Illegal Immigrant Reform & Immigrant Responsibility Act of 1996 (IIRIRA) and took effect as of April 27, 1996. The law amended a series of immigration laws and created a list of what is called "Aggravated Felony," INA Section 101(a)(43). In addition, IIRIRA created a category called "Crimes of Moral Turpitude." Although there is no list of crimes of moral turpitude, the USCIS refers to INA Section 101(f), as well as previous case law and BIA administrative decisions to make the determination.

In the midst of this new law, thousands of people were rounded up and went through removal proceedings and were deported. Those who were not "rounded-up" were eventually removed because of subsequent minor crimes, at the interviews for Adjustment of Status or Naturalization, or after an innocent traffic stop by local police, who then contact the Immigration and Customs Enforcement (ICE). The following three (3) cases are successful challenges of IIRIRA and shed glimpses of hope for immigrants.

In St. Cyr, INS v. St. Cyr, 533 U.S 289 (2001), Mr. St. Cyr, and others, were convicted of crimes before the effective date of IIRIRA 1996. These individuals PLEADED "guilty" or "nolo contendre" to crimes that were not "inadmissible" under the now repealed law, Section 1182 of the INA. Another word, at the time these immigrants plead guilty to the crimes, they plead with the understanding that they were will not be deported. The presumption is that, had the indictment happened after April 1996, and these aliens know that they may be removed from the U.S. if convicted; they would have challenged the allegation at trial, rather than pleading guilty. Therefore, the court concluded that these immigrants are still protected under the repealed law, INA section 1182, and therefore, cannot be removed from the U.S.

In Zadvydas, Zadvydas v. Davis, 533 U.S 678 (2001), the Supreme Court held a few months after St. Cyr, and also has a profound affect on many immigrants, especially people from Vietnam. Mr. Zadvydas and others were convicted of crimes that are removable under IIRIRA, as well as the repealed section of the INA. These individuals were ordered by the immigration court to be removed from the U.S. However, the Service (USCIS) cannot remove these aliens because the U.S. and their home countries do not have a "repatriation treaty." USCIS argues that 8 U.S.C.S. § 1231(a)(6) allows the government to hold removable aliens indefinitely, beyond the 90 days set forth in the code, until the date that each respective country signed a Repatriation Agreement/Treaty with the U.S. The U.S. Supreme Court disagreed and held that the statue provides a "reasonable time" limitation in which the Service may hold these aliens. That "reasonable time" period is six (6) months. Therefore, if within six months and at the request of the alien, the Service does not reasonably believe that a Repatriation Agreement will be in effect in the foreseeable future, the Service must parole the alien into the United States.

In Lopez, Lopez v. Gonzales (No. 05-547) (Dec. 5, 2006), the U.S. Supreme Court held that USCIS may not charge aliens who committed drug crimes that is adjudicated as a felony under State crime, but that would be a misdemeanor under the Controlled Substance Act, 21 U.S.C. Section 844(a), as an "Aggravated Felony." Although a conviction of a drug crime would still make an alien an "inadmissible alien," such alien is not "removable. These are two different standards and are guide under two different sections of the INA. Thus, aliens who committed drug crimes that are not an "Aggravated Felony" may be eligible to apply for exclusionary waivers, such as "extreme hardship." Depending on the crime, this does not mean that the alien is not removable but that the alien may apply for waivers from removal and waiver for inadmissibility if applicable. The waivers are discretionary and a denial of the waiver may not be appealed in Federal Court.

How can the alien file for waivers in light of Lopez v. Gonales?

Aliens who have not been ordered removed may apply for a waiver of excludability, Form I-601, with USCIS. If approved, the alien will be able to travel abroad and may be able to maintain his/her permanent residency. However, depending on the crime, the person may still have problems applying for naturalization.

If the alien is currently in removal proceeding, the waiver may be applied with the IJ. If the IJ denied, the person must timely (30 days from the date of denial) appeal to the BIA. If 30 days have past, the alien must file a Motion to Reopen. Within 90 days from the date of denial, the BIA must hear the motion. If 90 days from the date of appeal have past, the alien must file a Motion to Reopen Sua Sponte (on his/her own accord). If the BIA denies the appeal, the alien does not have any other remedy because the removal and excludability waivers are discretionary and only the Attorney General has the authority (not federal courts).

If the alien has been ordered removed, but that were allowed to parole into the U.S. because the U.S. and the alien's home country does not have a repatriation agreement (such as Vietnam), the alien may appeal with the BIA by writing a Motion to Reopen Sua Sponte. If successful in the appeal (i.e. the BIA agrees that the crime committed was not an Aggravated Felony), the BIA may grant the waiver or remand to the IJ to make the determination.

How IIRIRA affect aliens, especially those countries that do not have repatriation agreements with the U.S, such as Vietnam?

The three (3) cases above have profound effect on aliens, especially for people from countries that do not have repatriation agreement with the U.S, such as Vietnam. In light of Zadvydas, all removable aliens from countries such as Vietnam must be released from Immigration and Customs Enforcement's (ICE) detention within 6 months and allow to parole into the U.S if it is determined that there will be such agreement signed in the foreseeable future. Often times, the accused or convicted criminal immigrants do not understand the consequences of their convictions. They often do not challenge the removal allegations in immigration courts (thinking they will be release within 6 months anyway). The fact of the matter is that the person may be removed once a Repatriation Agreement has been reached by the U.S. and the Vietnamese Government. In an age where U.S. and Vietnamese economic and military ties are getting closer, that agreement may be reached sooner than what people think.

What Are The Rights of A Paroled Alien Based on Zadvydias?

Once released from ICE's detention and allowed to parole into the U.S., the alien may have the right to:

  • Work by applying for work authorization;
  • Can travel within the United States and in its territorial jurisdiction and water;
  • Can have a driver license;
  • Can get a Tax I.D. to file taxes;
  • Can marry anyone, including a U.S. Citizen or Permanent Alien (which may or may not help them, depending on their crimes and convictions);
  • Because many aliens are fishermen and depend on sea-travel for their livelihood, if applicable, clients should also be warned not traveled more than 24 nautical from the "base-line" (the shore-line). Outside 24 nautical miles is not longer under U.S. "Contiguous Zone" and is not under the USCIS's administration. Thus, if clients traveled 50 miles to fish (which falls under the U.S.'s Exclusive Economical Zone, up to 200 nautical miles from the base-line), the alien may be considered as leaving the U.S.'s jurisdiction and may be inadmissible. Some clients will argue that they have traveled beyond 50 miles and were stopped by the U.S. Coast Guard, but that they were allowed to come back into the U.S. Perhaps this is because paroled aliens have a work authorization permit and the Coast Guard did not do a through background check. This experience does not guarantee that they will be treated in the same manner the next time, especially in cases that the boat/ship is in violations of maritime law or state fishing licensing.

Unfortunately, in most cases, the aliens will not be able to regain their green cards. They will not be able to be naturalized and become a U.S. citizen. Finally, the aliens must not leave the U.S. and/or its territories.

If you or someone you know is need of family law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.

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