It’s been a year since Congress took aim at illegal immigration by passing a new immigration law. The law had a tarnished look when it was minted on September 30, 1996. After living with the law for 12 months, there are reasons for wishing it was out of circulation completely.
Three aspects of the law are particularly distressing.
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First, it’s an affront to the principal of due process. The law makes it virtually impossible in most cases to challenge immigration-related decisions made by the Justice Department in the Federal Courts. Aliens charged with being illegally in the U.S. have a right to a “removal” hearing before an immigration Judge and to an appeal before the Board of Immigration Appeals (BIA). However, both the Immigration Judge and BIA members are emloyees of the Justice Department, as are the attorneys who represent the INS in removal proceedings.
When a federal agency acts as both prosecutor and judge, little is left of the constitutional doctrine of separation of powers. Generally, when an administrative agency abuses its discretion, the courts have the authority to reverse the action of the agency. Not so with the Justice Department under the new law.
Consider the case of refugees arriving at U.S. airports. Under the new law, if the refugee has no papers, and if an INS examiner and an Immigration Judge agree that the person does not have a “credible fear” of persecution in his home country, he may be immediately deported.
Is there danger that this section of the law could be abused?
The New York Times told of an Albanian woman who claimed she was raped because of her political beliefs. Determinations in such cases are required by the new law to be accomplished in a speedy fashion. So swiftly in this case that the woman’s attorney, who was out of town, did not have time to return for the hearing. His new associate could not prevent the woman from being deported, and she is back in Albania hiding from her assailants.
Prior to the new law, the Federal Courts frequently reversed the rulings of the BIA. Now, administrative efficiency appears to be more important than due process. Since deportation from the U.S. is akin to banishment, the Justice Department should be held accountable for its actions.
The law also required that persons who entered the U.S. illegally, or overstayed or violated the terms of their visas, leave the country before September 27, 1997. Those who failed to do so may be barred from receiving permanent or temporary visas for three to ten years.
Punishing immigration law violators is entirely appropriate. The problem is twofold, the new law seeks to punish the wrong people and the penalty is disproportionate to the offense. About 68% of those subject to the three and ten year bars are either spouses or children of U.S. citizens and permanent residents. They now are trying to legalize their status through family relationships. In the past, these people could adjust their status after paying a fine (currently set at $1,000 per person) to the INS. However, the fine provision is set to expire on October 23, 1997. Without this provision, most aliens will choose to remain in the U.S. underground, rather than face a separation period of up to ten years away from their families.
Though the law is intended to reduce illegal immigration, its effect will be to create new illegal immigrants by preventing family members from legalizing.
Last, though the law is aimed at illegal immigration, many of its provisions seek to make it more difficult to immigrate legally. One notable amendment to the law concerns foreign health care workers, who now must pay a private agency in excess of $325 to take an English test and have their education credentialed, even though such tests already are currently administered by the states. Even non-citizen nurses and therapists who were trained in the U.S., are licensed and seeing patients here must go through this process.
Since no regulations have been issued regarding this amendment, all green card applications for foreigh health workers have been placed on hold throughout 1997, with no end to the logjam in sight. The only winner is the private agency, which is collecting its credentialing fees despite the lack of regulations implementing the amendment.
The fact is that the new law is more of a PR ploy than an honest attempt to control illegal immigration. It allows Congress to say it has taken steps to control the influx of illegal immigrants. Its real effect, however, is to undermine due process, drive legalizing aliens underground and harass legal immigrants.
A more sensible immigration law was passed in 1986. It addressed the real underlying force driving illegal immigration — jobs — by allowing the INS to fine and jail employers of illegal aliens. How many employers have gone to jail in the last ten years under this law? None.
When existing laws go unenforced, there is little point in passing new ones.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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