Legislation Update: New Developments Regarding Aliens Who Entered Without Inspection and Aliens Conv

President Clinton signed new “anti-terrorism” legislation into law last month which contained sweeping, and potentially disastrous, immigration provisions. As you may recall, I published an open letter to the President criticizing these immigration provisions, and specifically the provision which would subject aliens who had “entered without inspection” to exclusion proceedings. Fortunately, it seems that both the President and Congress have listened to the many criticisms and are in the process of amending some of the Bill’s harsher provisions. Unfortunately, the INS is also acting expeditiously to implement the Bill as it is currently written. This will undoubtedly result in the detention, exclusion and deportation of many aliens while Congress and the President are working to correct their oversight.

One of the provisions the President is seeking to correct is the provision which would make “Suspension of Deportation” unavailable to any alien who has “entered without inspection.” Under current INS definitions, people who enter with fake passports or by using another person’s passport have “entered without inspection.” Under the new anti-terrorism Bill, all these people are now subject to exclusion and not deportation. Since “Suspension of Deportation is only available in Deportation Proceedings, the anti-terrorism Bill had the effect of making this important form of humanitarian relief unavailable to literally tens of thousands of aliens – many of whom have been here for ten, fifteen or even twenty years or more.

Fortunately, these provisions will be deleted according to the current version of the Simpson Bill, one of two comprehensive Immigration Reform Bills currently pending in Congress. Another unduly harsh provision, allowing “expedited exclusion” of aliens seeking entry, will also be severely limited in its application. However, these reforms will not take place until the Simpson Bill is itself signed by the President, and this is still several months away.

While we are waiting for Congress to correct its mistakes the INS, in typical fashion, is acting quickly to implement the current provisions of the Bill relating to criminal aliens. The Bill currently requires the INS to take into custody all aliens convicted of certain crimes, including aggravated felonies, drug possession and possession of a firearm, and to deport these aliens “as expeditiously as possible.” This means that anyone convicted of any of these crimes cannot be released on bond during their deportation proceedings. They will remain in jail until their deportation proceedings have concluded. This also means that anyone in this situation who has an upcoming deportation hearing stands a substantial risk of being taken into custody at that hearing.

As a result of these developments, as well as the pending immigration reform bills, immigration law and procedure have become increasingly less certain. Almost every day, prospective clients come to my office with the intention of handling their immigration matter themselves, all they want is “a little advice” regarding how to fill out an INS form, or what to expect at an interview or hearing. These are the people who are the most at risk right now. Unfortunately, everyone with an immigration problem or seeking an immigration benefit now needs to be represented by a qualified immigration lawyer. This requirement will continue at least until Congress has finished passing its new immigration legislation and immigration practitioners have had time to determine what the new legislation means for immigrants.