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Central America: NACARA [Nicaraguan Adjustment and Central American Relief Act] (leg.)
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Central America: NACARA [Nicaraguan Adjustment and Central American Relief Act] (leg.)
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NACARA
Congress of the United States
House of Representatibes
Mashington, BC 20515
October 15, 1997
OCT 20 PM1:24
The Honorable William J. Clinton
President of the United States
The White House
Washington. DC 20500
Dear Mr. President:
We are writing to express the very serious reservations of the Congressional Hispanic Caucus
concerning the agreement reached between Congressmen Lamar Smith and Lincoln Diaz-Balart,
which has the backing of the House Republican Leadership, regarding legislative relief for
approximately 250,000 Guatemalans. Nicaraguans and Salvadorans currently facing uncertain
immigration status.
There are several aspects of this agreement that we find extremely objectionable because they
represent a retreat from the efforts of the Congressional Hispanic Caucus to provide just treatment
for all immigrants to our nation. While the legislative language is not yet available, our
understanding is that the agreement would grant amnesty to all Nicaraguans who entered the
country before December 1. 1995. In turn. Salvadorans and Guatemalans who entered the country
before 1990 would be allowed to pursue permanent residency through suspension of deportation
hearings under the rules in place before the enactment of the 1996 immigration law, except that
judicial review would not be available for these decisions. The agreement would also codify the
Board of Immigration Appeals' decision Maner of N-J-B-, which would apply the 1996
immigration law retroactively. Finally. the current employment visa category of "unskilled
workers" would be eliminated entirely.
First, we do not support making the Salvadoran and Guatemalan cases unreviewable by a federal
court. The Smith-Diaz-Balart agreement removes the ability for immigrants to have judicial review
of an erroneous decision. This severely limits the rights of these immigrants to meaningful due
process in the resolution of their immigration status.
Our second concern is that except for Salvadorans, Nicaraguans and Guatemalans specifically
exempted. the agreement codifies the N-J-B- decision and makes it impossible for others who were
already in the process of pursuing permanent resident starus through suspension of deportation to
pursue their claims. The Attorney General. as 8 matter of law and her good judgment, vacated the
N-J-B decision for further review, determining that "[legislation] should not be applied
retroactively in the absence of a clear statutory directive." See Landeraf V. USI Film Products. 511
U.S. 244 (1994). The codification of N.J.B. threatens the immigration status. and could lead to
the deportation, of at least 25,000 immigrants in our narion.
Third, we find it unacceptable that an entire category of legal immigrants is negotiated away as part
of this deal. The Smith-Diaz-Balart agreement ties together the potential relief for Central
Americans with the abolition of the unskilled worker visa category. Elimination of this long-
standing visa category will affect approximately 10,000 immigrants annually from all over the
10/21/97
00:
THISE
The Honorable William 1. Clinton
October 15, 1997
Page 2
world who come to the U.S. under this provision. At this time, there is a large backlog of
approximately 21,000 immigrants who qualify for this category of visa, and who have been
waiting patiently for years. The fate of these pending cases is uncertain under the Stuith-Diaz-
Balart proposal. The nig should not be pulled out from underneath those who have played by the
rules and waited in line.
Fourth, there is simply no rational basis for the disparate treatment of these groups of Central
American immigrants. From the beginning. we urged you, Mr. President, to take action in crafting
a fair solution for the thousands of Central Americans caught in the pipeline when the 1996
immigration law changed the rules mid-stream. Our goal was to qear everyone who was already
in the process of pursuing legal residency fairly. We applaud you for your leadership in
fashioning bi-partisan legislation that would allow these immigrants to proceed with the rules under
which they started.
We support and will continue to advocate for the fair and equal treatment of all similarly situated
immigrants. We find the agreement of Congressmen Smith and Diaz-Balart to grant amnesty to
Nicaraguans in this country before December 1, 1995, to be a posirive development that we should
build upon. We find it promising that the House Republican Leadership is now supporting
amnesty as a possible solution. However. if amnesty is to be made available to Nicaraguans, it
should also be made available to Guatemalans and Salvadorans. The Guaremalans and
Salvadorans find themselves in virtually identical circumstances as the Nicaraguans; we strongly
support treading them equally.
Lastly, we think you would agree Mr. President that We should not grant favorable treatment to
one group at the expense of others. Sadly, the Smith-Diaz-Balart agreement suggests that our
nation is unable to be fair to one group of immigrants without being unfair to another. The
elimination of the unskilled worker category affects 10.000 immigrants a year and the codification
of N-J-B closes the door on those left out of the deal who have pending claims.
We hope to meet with you as soon as possible to discuss this critical situation. We appreciate your
continued leadership and work on this very important issue. We know that your efforts on behalf
of Central American immigrants. including your administration's offer to work with Congressman
Diaz-Balan in a bipartisan manner on legislation that was drafted by your administration has been
largely responsible for keeping hope alive for Central American immigrants.
Thank you again for your work. We look forward to your continued support for a final resolution
that will help all Central Americans without causing other, additional harm to our nation's
immigration policy.
Sincerely.
XAVIER BECERRA
Chairman, Congressional Hispanic Caucus
Task Chairman, LUIS Force GUTIERREZ CHC Immigration
and Oftizenship
NOTE FOR ELENA KAGAN/LEANNE SHIMABUKURO
FROM :
ROB MALLEY
Subject: Administrative Steps on Suspension of Deportation
At the meeting today, the advocates strongly urged us to consider
administrative, as opposed to legislative, steps. The most
important ones they propose are:
1. That the AG reverse the NJB decision -- which held that the
rule on accrual of time for suspension purposes applied
retroactively. As you know, 5 of the 7 BIA judges on the NJB
panel dissented from the majority opinion, and some, federal
courts also have disagreed with NJB.
I have raised this with DoJ and INS in the past, and have been
told that OLC's. view is that the advocates' position is not
defensible. OLC has SO advised the AG. of course, the White
House could request that this be reviewed, and could inform DOJ
of its preferred policy outcome, but this is hardly likely to
yield a different result.
2. That DoJ and INS interpret the cap provision to apply to the
total number of adjustment granted per year, not the number of
suspensions/cancellations of removal. Aliens who are granted
suspension would be placed on a waiting list and permitted to
remain here legally until a number is available for adjustment in
a subsequent fiscal year.
My recollection on this one is that INS/GC thought this was not
the preferred interpretation, albeit a defensible one. At the
same time, DOJ/INS strongly believed that adopting that approach
would be viewed on the Hill (i.e., by Smith) as an end-run around
the cap. In litigation on this issue, DOJ has opposed the
advocates' view.
The WH could ask Justice whether it the advocates' approach is
defensible and, if it is, could request that it be adopted.
However, without the other fixes that we would like (regarding
NJB and the retroactive application of the hardhsip standards for
ABC class members), this would be of limited value.
3. That DoJ interpret the ABC agreement to guarantee that
suspension claims of class members would be adjudicated under the
old rules. ABC class members would be subject to 7 year, more
lenient standard, regardless of when they were put in
proceedings.
2
I have not discussed this with DoJ or INS at all, and therefore
do not know whether the settlement can be so read. However, DoJ
has taken the firm position that the settlement only had to do
with asylum, not with suspension -- which gives us some clue as
to where they would come out.
NATIONAL SECURITY COUNCIL
FAX COVER SHEET
NATIONAL
From: Rob Malley
SECURITY
To: Elena Kagan/Leanne Shimabukuro/S. Warnath
COUNCIL
Agency: DPC
Fax Number: 62878/67028/55567
Date/Time:
17th & Penn, N.W.
Washington, D.C.
No. of pages to follow: 5
20504
Message: Yet another version -- this time as a
discussion memo we might distribute. I have added
Did you get a complete,
clear transmission? If
a short section on administrative steps. Have a nice
not, please call:
weekend.
(202) 456-9141
Rob
DISCUSSION MEMORANDUM
Background
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) severely restricts the availability of
suspension of deportation in three ways:
(1) it extends the length of time immigrants must have resided in
the U.S. to be eligible for suspension from seven to ten years
and requires a greater showing of hardship. These rules apply to
persons placed in removal proceedings after April 1, 1997;
(2) it sets a 4,000 annual cap on the total number of suspensions
that can be granted, regardless of the number of individuals
found eligible for suspension. Previously, there was no ceiling;
(3) it requires immigrants to meet the 7 (now 10) year residency
prong before being placed in removal proceedings. (Prior to the
IIRIRA, time would accrue throughout the course of proceedings.)
This "stop-time" rule applies retroactively to individuals who
were placed in proceedings prior to April 1, 1997.
The combination of these changes will dramatically reduce the
number of immigrants currently in the U.S. who will be eligible
for suspension. During your trip to Central American, you stated
that you would work with Congress to seek to alleviate the
harshest consequences of the law.
Persons Affected by the Law
While the suspension provisions of the IIRIRA will affect all
nationalities, its consequences will be most acutely felt by the
large number of Central Americans who entered the U.S. illegally
in the mid/late 1980s in response to civil war and large-scale
political persecution.
Nicaraguans: Approximately 40,000 Nicaraguans currently are in
deportation proceedings. The Reagan Administration protected
most of them from deportation during the pendency of a special
DoJ review of their asylum applications. That program ended in
June 1995 and the last available form of relief for Nicaraguans
is to apply for suspension of deportation. Because of the way
their cases were handled, Nicaraguans will be most severely
affected by the retroactive application of the "stop-time" rule.
Guatemalans and Salvadorans: As a result of a settlement in a
major class action lawsuit (known as ABC) that was reached in
1991, Salvadoran and Guatemalan asylum-seekers who came to the
U.S. in the 1980s were protected from deportation until their
CC: Vice President
Chief of Staff
2
asylum claims could be decided under special adjudication
procedures. Congress and the Executive branch also protected
Salvadorans from deportation through various programs that
expired in 1994. The ABC class is comprised of roughly 190,000
Salvadorans and 50,000 Guatemalans.
Because INS only fully put in place its special asylum procedures
on April 7, 1997, and because ABC members did not press for rapid
asylum hearings (believing that they were accruing time for
purposes of suspension), a majority of them still have pending
asylum applications and have yet to seek suspension of
deportation. As a result, and barring a legislative change, they
will be subject to the IIRIRA's stricter rules. Others were
placed in proceedings before the accrual of seven years, and
therefore will be barred by the "stop-time" rule.
In short, absent legislative fixes, approximately 280,000 Central
Americans may eventually be subject to deportation. This could
lead to serious disruptions to families in the U.S. and threaten
the stability of Central American nations that rely heavily on
remittances from immigrants and whose labor markets could not
absorb a large number of returnees.
Congressional Sentiment
The legal modifications appear to have been motivated by the
feeling that suspension was granted too generously. In addition,
some in Congress wanted to eliminate the possibility of an
amnesty-like program for Central Americans. At the same time,
many Members were not aware of the full impact of these changes,
particularly on long-standing de facto residents such as the ABC
members.
Legislative Strategy Options
Option 1: Lift Cap for Cases in Proceedings Prior to April 1.
This option would affect between 19,000 to 38,000 individuals who
would be granted suspension absent the cap. However, it would
not address the core concerns of the immigrant community or of
Central American governments because it would not assist about
215,000 ABC members not in proceedings as of April 1 (and
therefore affected by the cap and the new suspension rules), nor
would it help the 40,000 Nicaraguans affected by retroactive
application of the "stop-time" rule. This is the most modest
option which DoJ already is discussing with Members of Congress.
In the meantime, DoJ has put a hold until September 30 on
deportations of people who would have qualified but for the cap.
3
Option 2: Lift Cap for Cases in Proceedings Prior to April 1 and
Reverse Retroactive Application of the "Stop-Time" Rule.
This option would benefit between 38,000 and 76,000 individuals -
- essentially those helped by option 1 plus Nicaraguans and
others affected by retroactive application of the "stop-time"
rule. It could be justified as a fair transitional measure as
the Administration moves toward full implementation of the law.
However, it would be criticized from both sides: it would not
help approximately 215,000 ABC class members not in proceedings
as of April 1, and is likely to be strongly opposed by the
principal congressional backers of the IIRIRA. Absent high-level
White House efforts, proposing this could undermine our chances
on option 1.
Option 3: Lift Cap for ABC Members and Individuals in Proceedings
Prior to April 1; Reverse Retroactive Application of the "Stop-
Time" Rule for Cases in Proceedings Prior to April 1; and Apply
pre-April 1 Suspension Standards to ABC Members.
This is the broadest option and is expected to benefit roughly
119,000 individuals -- those covered by option 2 plus ABC members
who would have qualified had there been no change in the law.
This is the only option that addresses the bulk of the Central
Americans' and immigrant community's concerns. Special treatment
of ABC class members can be justified by their unique
circumstances, which includes their long presence in the U.S.
under temporary legal status and the fact that their asylum cases
were delayed while INS put in place special asylum procedures --
as a result of which they are being barred from suspension
because of legislation passed 6 years after the settlement
agreement with DoJ. The Administration also could point out that
these are transitional measures, and that full implementation of
the immigration law will soon follow.
However, this option is likely to generate strong opposition from
Members of Congress who will liken it to an amnesty and question
the Administration's resolve to seriously enforce the immigration
law. Moreover, it might be criticized for singling out for
special treatment Salvadorans and Guatemalans. Absent high-level
White House intervention along the lines of the final days of
debate on the 1996 bill, even proposing this option could
jeopardize the chances of options 1 or 2.
Related Issues
Two additional issues need to be resolved based on your decision
on the foregoing options:
4
Issue #1: Whether to temporarily stop deporting individuals who
would qualify for suspension under the option you select.
This would avoid the deportation of immigrants who may otherwise
qualify were we to reach agreement with Congress. At the same
time, the hold would not prejudge the outcome of our negotiations
with Congress as deportations could resume if and when necessary.
Issue #2: Whether to agree, in negotiations with the Congress, to
offset any increase in the number of suspension grants with a
reduction in legal immigration numbers.
While not our preferred option, some Members of Congress might
condition their agreement on an offset. With roughly 900,000
legal immigrants admitted per year, even the most generous option
(#3) would entail reducing that number by only slightly over 10%
or, if spread over several years, a fraction thereof.
However, any such option could be seen to conflict with the
Administration's principle of favoring legal immigrants over
those without legal status. In addition, several Members --
including Senator Abraham -- strongly oppose an offset, which
they fear might re-open debate on other legal immigration issues.
Administrative Options
Immigration advocates are pressing us to take administrative
steps instead of/in addition to legislative ones.
Step #1: Temporarily Halt ABC Asylum Interviews
Pursuant to the settlement, INS began conducting new asylum
interviews of ABC members in April 1997. Interviews are
resulting in large numbers of denials and placement of aliens in
deportation proceedings -- thereby cutting off the accrual of
time for suspension/cancellation purposes. Advocates seek an
immediate, temporary halt to interviews as the Administration
considers its options, arguing that the INS waited 6 years to
schedule the interviews, only to hold them when they will cause
most harm to the aliens as a result of the new "stop time" rule.
However, a halt will be viewed by some Members as inconsistent
with INS' commitment to move forward with interviews.
Step #2: Re-interpret the Cap Provision
Advocates argue that the IIRIRA can reasonably be read to impose
a 4,000 cap on the number of adjustments of status granted
annually, not on the number of suspensions. They ask that aliens
granted suspension be placed on a wait list and permitted to
remain in the U.S. legally until a number is available for
5
adjustment of status in a subsequent fiscal year. While this
arguably is a defensible interpretation of the law, it risks
being viewed by some Members as an end-run around the cap.
Step #3: Reverse the decision applying the stop-time rule
retroactively
Advocates are urging the Attorney General to reverse the Board of
Immigration Appeals decision (known as NJB) holding that the
stop-time rule applies retroactively. They argue that NJB was a
7-5 split decision by the Board and that a reversal would be
legally justified. However, OLC has reviewed this issue and does
not believe the advocates' interpretation is defensible.
04/21/98 TUE 10:40 FAX 202 456 5426
PLM
002
259884
OAD
NATIONAL BAR ASSOCIATION
THE NATIONAL
B
ASSOCIATION
Reply To:
A
1925
Randy K. Jones
March 31, 1998
President
San Diego, CA
VIA FACSIMILE (202) 456-2883 AND REGULAR MAIL
Beverly McQueary Smith
President-Elect
President William Jefferson Clinton
Huntington, NY
The White House
Harold D. Pope
1600 Pennsylvania Avenue
Vice President
Washington, D.C. 20500
Detroit, MI
Dear President Clinton:
Patricia M. Rosier
Vice President
Washington, DC
I write to you on behalf of the National Bar
Association, the nation's oldest and largest
Ray L. Shackelford
association of African American lawyers and judges, to
Vice President
Houston, TX
urge you to support legislation, namely S. 1504 and
H.R. 3033 to redress the inequities that Haitian
Sharon E. Strickland
immigrants suffered when the Nicaraquan Adjustment and
Vice President
Central American Relief Act (NACARA), which did not
Chicago, IL
include relief for Haitians, was adopted
Andrea Pair Bryant
Secretary
The enactment of S. 1504 and H.R. 3033 are in the
Austin, TX
national interest and consistent with American
traditions of equitable treatment and protection of
Joseph H. Hairston
the persecuted and oppressed. The Haitians refugees
Treasurer
Washington, DC
protected by S.1504 and H.R. 3033 are already in the
United States, and many were admitted after the INS
Rodney C. Moore
determined that they had demonstrated credible fear of
General Counsel
persecution. These temporarily-protected Haitians are
San Jose, CA
now in a legal limbo, similar to that in which Central
Robie A. Beatty
Americans and others found themselves prior to passage
Parliamentarian
of the NACARA last year. These bills would provide
Washington, DC
similar relief to that already provided for
Nicaraguans and Cubans.
John Crump
Executive Director
The number of Haitians who would benefit from this
Washington, DC
legislation, according to INS estimates, is fewer than
40,000--a much smaller number than the number of
Nicaraguans and Cubans who were granted relief under
NACARA.
APR
7
1096
NATIONAL BAR ASSOCIATION, 1225 11TH STREET, N.W., WASHINGTON, DC 20001-4217, 202-842-3900 FAX 202-289-6170
73RD ANNUAL CONVENTION 0 JULY 25-AUGUST 1, 1998 . MEMPHIS, TENNESSEE
04/21/98 TUE 10:40 FAX 202 456 5426
PLM
5. 003
Letter to President Clinton
Page 2
There is a significant precedent for providing to
Haitians the relief which S. 1504 and H.R. 3033
accord. Congress enacted similar legislation in 1957
for Hungarians; in 1966 for Cubans; in 1977 for
Indochinese; in 1992 for Chinese students; in 1996 for
Poles and Hungarians; and in 1997 for Nicaraguans and
Cubans.
The limited number of Haitians protected under S. 1504
and H.R. 3033 have contributed greatly to the
communities in the United States in which they now
live. Many have married, had children who are U.S.
citizens, started businesses and served in the
military. In Miami, New York, Boston, Chicago, and
many other areas where Haitians reside, state and
local officials from both parties support the
enactment of S. 1504 and H.R. 3033.
The National Bar Association urges you to support and
fight for the passage of both bills. We thank you in
advance for your continued commitment to equality for
all.
Sincerely
Randy Randy K. Jones
President
National Bar Association
04/21/98 TUE 10:41 FAX 202 456 5426
PLM
004
258773
C.N.C.
Cuban American National Council, Inc.
March 23, 1998
President of the United States
The White House
1600 Pennsylvania Ave.
Washington, D.C.20500
Dear President Bill Clinton:
The enactment of S. 1504 and H.R. 3033 is in the national interest and consistent with
American traditions of equitable treatment and protection of the persecuted and oppressed The
Haitian refugees protected by S. 1504 and H.R. 3033 are already in the United States, and
many were admitted after the INS determine that they had demonstrated credible fear of
persecution. These temporarily-protected Haitians are now in a legal limbo, similar to that in
which Central Americans and others found themselves in prior to passage of the NACARA last
year. These bills would provide similar relief to that already provided for Nicaraguans and
Cubans.
The number of Haitians who will benefit from this legislation, according to INS estimates, is
fewer than 40,000-a much smaller number than the number of Nicaraguans and Cubans who
were granted relief under NACARA.
There is significant precedent for providing to Haitians the relief which S. 1504 and H.R. 3033
accord. Congress enacted similar legislation in 1957 for Hungarians, in 1966 for Cubans; and
in 1977 for Indochinese; in 1992 for Chinese students; in 1996 for Poles and Hungarians; and
in 1997 for Nicaraguans and Cubans.
MAR 31 1998
1223 S.W. 4th Street, Miami, Florida 33135-2407
Tel: (305) 642-3484 Fax: (305) 642-7463 http://www.cnc.org
& United Way Supported Agency
001
04/21/98 TUE 10:42 FAX 202 456 5426
PLM
The limited number of Haitians protected under S. 1504 and H.R. 3033 have contributed
greatly to the communities in the United States in which they now live. Many have married,
had children who are U.S. citizens, started businesses and served in the military. In Miami,
New York, Boston, Chicago,, and many other areas where Haitians reside, state and local
officials from both parties support the enactment of S. 1504 and H.R. 3033.
We urge you to support and fight for the passage of both bills and we thank you in advance for
your commitment to equality for all.
Sincerely,
thing
Guarioné M. Díaz
President
GMD:le
c:BClinton-Haitians
04/21/98 TUE 10:40 FAX 202 456 5426
PLM
001
THE WHITE HOUSE
WASHINGTON
Facsimile from Diane Ikemiyashiro
Office of Presidential Letters and Messages
Voice: (202) 456-5519 FAX: (202) 456-5426
Number of Pages (including cover) : 5
Date: 4.21.98
Time: 10:25am
To Julie Fernanden
Voice: 6.6558
FAX: 6.5581
[ ] incoming letter (s) from:
re:
[ ] for your review
as
per my e-mail or voice-mail message to you
[
per your request
Additional comments:
Julie-
I have 2 incoming letters here.
Thanks for your help.
A
11/19/97 WED 13:24 FAX 202 456 9140
NSC DEMOCRACY
1
002
Central Americans Legislation
November 19, 1997
Q:
What is the Administration's view of the immigration legislation that addresses the
situation of Central Americans?
A:
The Administration is pleased that the Congress has acted on the President's
initiative to ameliorate the harsh impact of the new immigration law as it relates to
Central Americans. This makes good on the President's pledge when he went to
Central America last spring. As the President made clear during that trip, the
United States has a particular obligation to help these people ÷ not only because
they have now established deep roots in our communities but also because sending
them home at this time would very likely disrupt the important progress these
countries have made towards peace, democracy, and economic reform.
Nevertheless, we are concerned about several aspects of the bill passed by Congress:
The
covered bn this bill all
First, we believe it inappropriately provides different treatment for similarly
situated persons. Central Americans who came to the United States because of
persecution on civil strife war in their countries and have established substantial ties
They
here should be treated similarly. However, we believe that these differences can be
minimized in the implementation process. The President has asked the Attorney
General to consider the ameliorative purposes of the legislation and the history and
circumstances of the people covered by it in that process.
Second, we are concerned that it fails to address the situation of Haitians, many of
whom the Bush Administration brought to this country after the overthrow of
President Aristide in 1991. Like persons from Central America, these persons were
fleeing persecution and civil strife and have developed substantial ties to the U.S.
We will pursue a legislative solution for these people in the next session of Congress.
Third, Congress should not have continued to permit the application of new,
harsher immigration rules to other persons with pending cases. Changing the rules
in the middle of the game is unfair, unnecessary, and contrary to our values. We
intend to revisit this issue as at the earliest opportunity.
Signing Statement on "Victims of Communism Relief Act"
I am pleased that this bill includes legislation that responds
to my initiative, following my recent trip to Central America,
to address the circumstances of Central Americans and others who
were treated unfairly by last year's immigration bill. These
provisions take account of the compelling reasons that caused
these individuals to seek refuge in the United States, the
important ties they have established here, and the fragile and
difficult conditions that exist in their home countries.
believe
Math
Nevertheless, I am concerned about several aspects of this
disf.
legislation. First, I believe that it treats similarly situated
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people differently. This is wrong. The violence and oppression
1
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are fully achieved of This les.
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specifically the situation of Haitians, who are not covered by
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I ask The AC to
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Ciram.
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have continued application
to law of permitharshor new, not the pending immigration cases the middlest unnecessary, as well. and
rules Changing the to game intend the is rules assa to in revisit unfair t this and is sue
we
TO BE INSERTED IN DC APPROPRIATIONS SIGNING STATEMENT
During my trip to Central America in May, I pledged to address
the circumstances of Central Americans who were treated unfairly
by last year's immigration bill. In July, I transmitted to the
Congress a legislative proposal that offered relief to these
people. I am very pleased that this bill includes provisions
that do just that.
Most Central Americans who sought refuge in the United States did
so because of the civil war and human rights abuses that plagued
that region for many years. As I noted during my trip, I believe
more than war
that the United States has a particular obligation to help these
people not only because they and their families have now
established deep roots in our communities but also because
sending them home at this time would very likely disrupt the
important progress these countries have made towards peace,
democracy, and economic reform.
Nevertheless, I am concerned about several aspects of this
legislation as passed by the Congress. First, I am troubled by
the fact that it treats similarly situated people differently.
The Central Americans covered by this bill fled similar violence
and persecution; they have established similarly strong
connections to the United States; and their home countries are
all fledgling democracies in need of our assistance. The relief
made available to these people should be consistent as well
tenke
I believe, however, that the differences in relief offered by the
legislation can be minimized. I am asking the Attorney General
to consider the history and circumstances of the people covered
by this legislation and its ameliorative purposes in implementing
its provisions.
I am also concerned about the plight of certain Haitians who are
not covered by this legislation. Many Haitians were also forced
to flee their country because of persecution and civil strife and
they deserve the same treatment that this legislation makes
possible for other groups. We will seek passage of legislation
providing relief to these Haitians early in the next session of
Congress, and take appropriate administrative action while we
pursue this solution.
Finally, I believe that Congress should not have continued to
permit the application of new, harsher immigration rules to other
persons with pending cases. Changing the rules in the middle of
the game is unfair, unnecessary and contrary to our values We
intend to revisit this issue at the earliest opportunity.
12/01/97 MON 17:58 FAX 202 456 5426
PLM
001
THE WHITE HOUSE
WASHINGTON
Facsimile from Diane Ikemiyashiro
Office of Presidential Letters and Messages
Voice: (202) 456-5519 FAX: (202) 456-5426
Number of Pages (including cover): 5
Date: 12.1.97
Time: 5:00pm
To Julie Fernandes
Voice:
FAX: 6.5581
[ ] incoming letter (s) from: 1) Bernard Cardinal faw 2) Jose Media
re:
3.) Walter Johnson
[ ] for your review
[ ] per my e-mail or voice-mail message to you
[ ] per your request
Additional comments:
Thanks for your help, Julie.
P.S. - my draft to Cardinal it more low personal, is a bit
the essence of my original draft has
different. 1 made but
not changed.
12/01/97 MON 17:59 FAX 202 456 5426
PLM
005
Century
CHARTERED
IN
SAN FRANCISCO LABOR
1893
COUNCIL, AFL-CIO
1993 AFI. FEDERATION & INDUSTRIAL OF WE Propress of
1188 FRANKLIN STREET. SUITE 203. SAN FRANCISCO, CALIFORNIA 94109 415/440-4809
FAX 415/440-9297
email: [email protected]
SEND ALL COMMUNICATIONS TO:
SECRUTARY-TREASURER
Via Fax 202-456-6212 & U.S. Mail
241983
WALTER L. JOHNSON
PRESIDENT
JOSIE MOONEY
United Dublic Employees. 790
Nov 6, 1997
VICE PRESIDENT
BOB BOILBAU
Operating Engineers, :
EXECUTIVE COMMITTEE
JAMPS AHERN
The Honorable William Clinton
Pire Fighters, 708
ANDY CIRKELIS
President of the United States
Newspaper & Periodical Drivers. 921
F.X. CROWLEY
The White House
Theatrical Stage Employees, 16
DOUG CUTHERBERTSON
1600 Pennsylvania Avenue
Northern California
Newspaper Guild 32
Washington, D.C. 20500
PEGGY GASH
United Educators of San Francisco
AFT Council
Dear President Clinton:
FRANZ GLEN
I.B.E.W.6
MICHAEL HARDEMAN
Sign. Display & Allied Cratis. 510
I have been following the ABC issue and of this date and time it appears a
DONNA LEVITI
Carpenters 22
consensus is developing in Congress to grant immediate citizenship to Nicaraguans
RICHARD LEUNG
covered by the Bill and requiring Salvadorans and Guatemalans to begin the
Service Employees
International Union. 87
process of applying for permanent residence!
GUNNAR LUNDEBERG
Sallors' Union of the Pacific
LAWDENCE B. MARTIN
Transport Workers Union of America
I believe this republican "solution" to give preference to some immigrants
California Conference
LARRY MAZZOLA
while delaying the process for others is politically motivated, patently unfair, and
Dlumbers. 38
GEORGE MC CARINEY
ideologically driven. This issue provides this country with an opportunity to
ST.U. Atlantic. Gull &
Inland Waters District
organize with immigrant workers and community allies on a concrete proposal
ROBERT MC DONNELL
which improves the lives of immigrant workers. It also provides an opportunity to
Laborers International Union. 261
RUDY MERAZ
close a regretful chapter of military solutions which do not work and to begin a
Graphic Communications Union. 583
ROBERT MORALES
process of healing.
Sanitary Truck Drivers. 350
DAVID NOVOGRODSKY
I.P.P T.P., 21
I would like to request your involvement to insure equity for all immigrants
FRED PPCKPR
International Longshoremen's &
from Central America. This country was founded on principles of equity and
Warehousemen's Union. 6
KATIE QUAN
fairness. Let's continue to apply those founding principles to this important issue!
Pacific Northwest Disr.
Council. I.L.G.W.I.
JOSEPH SHARPE
United Food &
Sincerely,
Commercial Workers, 648
JOAN MARIE SHELLEY
United Educators of San Francisco
AMT Council
Walt Johnson
AL TRIGUEIRO
S.I. Police Officers
Association. S.E.I.L. 911
Walter L. Johnson
PAUL VARACALLI
United Dublic Employees. YYO
Secretary-Treasurer
HOWARD WALLACE
Health Care Workers, 250
NANCY WOHLPORTH
Office & Professional Employees. 3
SGT. AT ARMS
LUPE ORDEZA
opeiu#3aflcio(11)
NOV 10
Pointers. 4
1937
TRUSTEES
VINCENT COSS
Senforers International Union
JOHN OVERSTHEET
Mortuary Employees Union
CLAIRE ZVANSKI
United Public Employees. 790
PRESIDENT EMERITUS
DATE DEMORTED
UNITY IS STRENGTH!
12/01/97 MON 17:59 FAX 202 456 5426
PLM
004
242788
COUNTY as OF
Member
Board of Supervisors
City and County of San Francisco
CITY THE OF SEAL OFSAN FRA SAN
JOSE MEDINA
November 13, 1997
President William J. Clinton
The White House
Washington, DC 20500
Re:
ABC Case and Equal Treatment of Immigrants
Dear President Clinton:
I am writing to ask for your timely intervention in support of the 18,000 Haitians, and the
260,000 Salvadorans and Guatemalans struggling to make their personal residence in this
country
Since the U.S. is actively participating in the post-war reconstruction of the countries of
El Salvador and Guatemala, it makes sense to offer these individuals the hope of asylum.
Especially, since many of them have U.S. citizen children or have businesses and other
ties to this country.
On Monday, November 17, 1997, the San Francisco Board of Supervisors will vote on a
resolution asking you to issue an executive order to streamline the process under which
Salvadoran, Guatemalan, and Haitian refugees apply for suspension of deportation. As
the author of that resolution, I hope that your intervention might lead to an adjustment of
their status to permanent residence.
In the San Francisco Bay Area, there are approximately 30,000 persons who fall under
the ABC Class. Please intervenc to enhance the "Victims of Communism Relief Act"
passed by the U.S. Senate on November 10, 1997 to offer an asylum policy of equal
treatment to all immigrants.
Sincerely,
Jase José Medina
IM/im
MOV
17
12/01/97 MON 17:58 FAX 202 456 5426
PLM
002
241526
CARDINAL'S RESIDENCE
2101 COMMONWEALTH AVENUE
BRIGHTON, MASSACHUSETTS 02135
617-782-2544
ID LIVE S
CHRIST
817-782-8358
October 31, 1997
The Honorable William Jefferson Clinton
President of the United States of America
The White House
Washington, D.C. 20500
Dear Mr. President:
The purpose of this letter is to urge you to prevent the deportation of more than 300,000 Central
American nationals who fled to the U.S. in the 1980s in the face of persecution and violence in their
homelands. Should these deportations occur, they would have a disastrous impact on not only these
300,000 individuals but also on their family members, many of whom are citizens or Lawful Permanent
Residents of the United States. There could be as many as a million people living in this country who
would face the severe hardship of separation from their families and/or forced return to countries they
do not know or consider their home. The overwhelming majority are Catholic who are heavily
concentrated in the states of California, New York, Florida, Washington D.C., Massachusetts and
Texas.
Specifically, I write today to ask you to intervene in discussions underway on Capitol Hill regarding
relief for Central American and Caribbean refugees: certain nationals of Guatemala, El Salvador,
Nicaragua and Haiti. These are people who have lived in the United States for many years. Most have
been given some form of immigration status and authorization to work here. The Immigration and
Naturalization Service, however, has not yet acted on the majority of their claims for relief. In the
intervening years, these immigrants have built lives here even while their legal status aud lives have
been clouded by uncertainty. I urge you to intervene now so we can obtain a solution that is fair to all
similarly situated refugees and does not require the enactment of unacceptable provisions that would
harm other groups of immigrants and refugees.
It is my understanding that a number of members of Congress have reached agreement on a proposed
legislative solution that would address some of the concerns of some of the affected groups. The
existence of this compromise is a step in the right direction. It represents a bipartisan recognition that
Central American refugees in danger of deportation have built enormous equities here and deserve to
have their cases adjudicated in a manner that is fair and just.
12/01/97 MON 17:58 FAX 202 456 5426
PLM
003
Letter to The Honorable William Jefferson Clinton
October 31, 1997
Page 2
While we await specific legislative language, I understand that this agreement would provide
Nicaraguans with an opportunity for lawful permanent residency. Guatemalans and Salvadorans would
be able to apply for suspension of deportation roughly under the rules that applied to them prior to
1996. Although I am very pleased that Congress and the Executive branch have entered into
discussions to endeavor to resolve this injustice, I am troubled by a number of other aspects of the
reported agreement. For instance, nationals from other nations -- including Haiti -- would have a much
more difficult time applying for relief from deportation, and this would happen retroactively. Also, the
number of immigrants who may benefit from "diversity" and "low skilled worker" visas each year
would be reduced.
The Catholic Church in the U.S. has a long tradition of standing in solidarity with immigrants. This is
our history. I am most grateful to those who seek to provide relief for Salvadoran, Guatemalan and
Nicaraguan refugees here in our midst. I am concerned, however, by several aspects of the proposed
legislation. First, the proposed legislation would not extend the same relief to similarly situated
refugees such as those who fled the turmoil of Haiti. Second, the proposed legislation would
retroactively change the rules for nationals of all other countries, making it impossible for many of them
to obtain relief from deportation. Third, the proposed legislation would reduce the number of
immigration visas in order to provide relief to a refugee-like population, an action that would barm
many who have been waiting in line for visas and would create a dangerous precedent for the future
treatment of refugee populations. I urge you to intervene with the interested parties in the House and
the Senate to correct these inequities so that meaningful relief for Central American refugees and
similarly situated populations can become enacted into law.
Asking God to bless you, I am
Sincerely yours in Christ,
Archbishop of Boston
Los Angeles Times
Relief Plan for Refugees
Monday
November 3
Seen as Unfair to Some
1997
Immigration: GOP proposal to recognize 'victims of
communism' could create political heirarchy, critics say.
By JODI WILGOREN
TIMES STAFF WRITER
REFUGEES:
T
he legislation, which was re-
dubbed the "Victime of
WASHINGTON-Republican
Communism Relief Act" after a
congressional leaders have taken
meeting of Republicans last week.
legislation intended to provide
Relief Plan
will probably be attached to a
relief to Central American refugees
pending appropriations bill this
and rewritten it to favor "victime of
week. Both houses must still vote
communism," angering some Dem-
on it.
ocrats and immigrant advocates.
Continued from A1
This is the latest version of a
The new proposal would allow
thousands of immigrants from var-
Refugees from Haiti and other
Clinton administration plan
lous countries to stave off deporta-
countries are not included in the
intended to undo some provisions of
deal, which would also slash in half
last year's immigration reform leg-
tion without meeting strict
the number of visas available to
islation, which dealt retroactively
guidelines passed last year, but
critics say that it would create an
low-skilled workers, to 5,000 per
with Nicaraguan, Salvadoran and
year.
Guatemalan refugees who had
unfair hierarchy tinged with poli-
applied to have their deportations
tics in favoring certain ethnic
Critics plan to object loudly this
suspended.
groups.
week with a series of protests, news
At the top of the heap would be
conferences and lobbying simed at
Most of these immigrants never
the White House.
obtained legal status, in part
refugees from Nicaragua who fled
because of bureaucratic backlogs.
when the United States was back-
"We shouldn't have to hurt some
ing a brutal war against the leftist
immigrants to help others, or rob
The original bill, which treated
Sandinista regime. The new pro-
Peter to pay Paul," said Frank
members of all three groups equal-
posal would grant permanent resi-
Sharry of the National Immigration
ly, was opposed by Texas Republi-
Forum. "We don't object If the
cans Lamar Smith, who chairs the
dency to any Nicaraguan who
entered the United States before
congressional leadership wants to
House subcommittee on immigra-
December 1995 and who applies for
give more help to more immigrants.
tion, and Sen. Phil Gramm. The
residency by 2000.
But it doesn't have to be done in a
new proposal garnered Smith's
way that sacrifices fairness at the
support but triggered opposition
Without providing similar
altar of political expediency."
from Democrate, who complained
amnesty, the deal would allow
about inequity.
immigrants from Guatemala, Sal-
Rep. Xavier Becerra (D-Los
vador, the former Soviet Union and
Angeles), chairman of the Con-
Meanwhile, Sen. Spencer Abra-
Eastern Europea to apply for a
gressional Hispanic Caucus, said
ham (R-Mich.), who chairs an
suspension of deportation if they
Sunday that he would vigorously
immigration subcommittee,
have been' in the country for seven
oppose the legislation because the
years-rather than 10-and can
benefits for about 500,000 Guate-
prove that leaving would be an
malans and Salvadorans-most of
"extreme hardship."
whom live in Southern California-
would be different than those for
Please see REFUGEES, A4
about 50,000 Nicaraguans concen-
trated in South Florida.
"It's porking, it's pork-barreling
on immigration-which constitu-
encies will help you the most,"
Becerra said. "If you're going to
provide relief for those in one situ-
ation and someone else is similarly
situated, provide the same relief.
That's basic fairness."
WASHINGTON EDITION
Los Angeles Times
Monday
November 3
1997
suggested that Eastern, European
and Soviet refugees deserved
treatment similar to the Central
Americans; in the new deal, those
A
mong Republicans, there is
who arrived by 1990 and applied for
consensus to. aid the Nicara-
asylum by 1991 would be grandfa-
guans. But there is less support for
thered in under the pre-1996 rules.
the much larger number of Guate-
Others officials, including mem-
malans and Salvadorans who left
bers of the Congressional Black
when the United States was pro-
Caucus, suggested that Haitians be
viding military and political aid to
granted relief; they are not
help their countries fight off insur-
included in the new deal, however,
gencies by left-wing guerrillas.
in part because most came less than
"For us, it's like, OK, because we
seven years ago, 60 even the older
were fighting against the United
standard would not help their
States intervention in Central
situation.
America, this is & kind of payback,"
While some Democrats, Catholic
said Carlos Ardon of the Salva-
leaders and other immigration
doran Assn: of Los Angeles, a legal
advocates denounced the deal,
resident who has been in the U.S.
those who crafted it celebrated it
since 1982. "It sends a message like,
for granting special recognition to
You didn't support the administra-
the plight of the Nicaraguans,
tion back in the '80s, now this is
among other things.
what you're getting.'
"This is an historic breakthrough
John McCalla of the New York-
for justice for immigrants. It is
based National Coalition for Hat-
reflective of the greatest American
tian Rights agreed that it is unfair
tradition of generosity," Rep. Lin-
to play favorites for those who fled
coin Diaz-Balart (R-Fla.) said in a
communism.
written statement.
"We're in favor of people being
"This
is a significant victory
equally treated. We don't think it's
for everyone who believes that
only people who were victims of
America should remain a nation of
Communist regimes. who were vic-
immigrants and refuge for those
time of persecution and abuse,"
fleeing war and persecution,"
McCalla said. "If the United States
agreed Abraham.
is going to be doing right by the
Rep. Ileana Ros-Lehtinen (R-
Nicaraguans, they should be doing
Fla.), a Cuban refugee, acknowl-
right by the Haitians. We're going
edged that the plan was "not per-
to cry hell and scream our head off.
fect" but called it "a step in the
We're not going to let this die."
right direction because it recog-
nizes the special place that Nicara-
guans deserve."
10/28/97 TUE 16:09 FAX 202 456 9140
NSC DEMOCRACY
002
below 5 percent. And don't forget the other
burst stock-market bubbles throughout Asia m recent
impor number released yesterday. The budget
S, a dose of rational exuberance here I
not
Congress
deficit for fiscal 1997 came in below $25 billion, an
be a
thing. Rationality begins with the realization
astounding accomplishment considering it was
that what happened yesterday isn't the same as what
If you really wan
more than 10 times that level a mere five years ago.
happened 10 or 68 years ago and that the
eral workers a go
Ten years ago the budget deficit was 3.3 percent of
fundamentals of this economy are pretty sound.
should have waited 1
WASHINGTON TIMES 10/28/97
to print Richard M
commentary, "Esc
premiums."
Immigration scapegoats
What's truly frig
H
Mr. Miniter would
believe that so-cal
is an encouraging sight to see members of Con-
Some hard work by Rep. Lincoln Diaz-Balart in
"non-directed" pref
I
gress willing to face up to an unintended legisla-
the House and Sens. Connie Mack and Spencer
networks are an
tive mistake and work to ensure that fairness is
Abraham appears to have paid off. Rep. Lamar
means for the Fed
Health Benefit Pl
restored. That's what appears to be happening in the
Smith, who chairs the subcommittee responsible for
case of the 300,000 Latin American refugees who
the 1996 legislation, has agreed to a solution as far
"savings" for this p
touted as accomplis
have been in this country since the 1980s and who
as the Central Americans are concerned. While Mr.
able goal, these typ
found themselves squeezed by certain provisions of
Smith rejects any notion that the there is a question
the 1996 Immigration Reform Act. These are people
of retroactivity involved here, he has offered to give
who have not only been through some very difficult
Nicaraguans who arrived in the United States before
times, as civil war ravaged their countries, but also
Dec. 1, 1995 green cards. Salvadoreans and
people the vast majority of whom have become pro-
Guatemalans will get a hearing according to the 1986
'Discordant'
ductive members of this society.
rules.
An arrangement brokered by House Speaker
That's the good news. The bad news is Mr. Smith's
Your Oct. 17 Eml
Newt Gingrich is now in the works to allow the
price is some 30,000 other people caught in much the
"Dueling surveys"
refugees what they have always asked per-
same bind but who do not have the same political
are supposed to b
mission to stay, but simply a hearing before an immi-
clout and high profile as the Central Americans.
results from two 0
gration judge who will decide who gets to stay and
These are people from Eastern Europe, Ireland,
American Jews. A
who has to leave. While the 1986 Immigration act
Cuba, Haiti, Mexico and elsewhere. And in addition,
Forum (IPF) poll sh
allowed them temporary refugee status and the
he's demanding the elimination of a category of
port for the Israt
prospect of a hearing after seven years of good
legal immigrants, so-called "other workers," mean-
peace pro
and
behavior, the law passed last year capped the num-
ing about 10,000 nannies, gardeners and other
facilitation On the
ber of cases at 4,000 each year and upped the num-
unskilled, but certainly highly useful, laborers.
more recent Middle
ber of years to 10. Problem: Once the refugees had
One would hope that the congressional leadership,
(MEQ) poll shows fe
submitted their paperwork and their application
while welcoming Mr. Smith's change of heart on the
from a Palestinian
of Palestinian Auth
process had been started, they stopped "accumulat-
Central Americans, would stand up for all people
Yasser Arafat.
ing" years (as far as the Immigration and Natural-
unfairly caught by a heedless change in rules in the
In fact, the result
ization Service was concerned, at least). This meant
middle of the game. Let new cases be tried accord-
are easily reconcila
that many got trapped at seven years, Kafkaesque-
ing to the new and tougher rules. And let those who
ly complementary,
ly unable to reach the now-needed 10. As has been
have put their trust in the fairness of the American
tions have almost el
pointed out in editorials in this space, that is absolute-
system know that our political leaders take that faith
focuses. Indeed, ans
ly not the way the American system is meant to work
seriously.
three shared q
similar margins,
both polls rate Pr
and Israeli Prime
jamin Netanyahu
The Indonesian gardener's tale
have highly unfavi
Mr. Arafat.
The IPF poll re
D
espite being denied access to the notorious
According to an interview last June from
hardly on the "far le
videotapes of White House fund-raising
Indonesia with Senate investigators, details of which
by MEQ editor Dan
coffees for nearly a year, Attorney General
were obtained by the Los Angeles Times, Mr.
respondents consti
Janet Reno, upon finally viewing them earlier this
Wiriadinata said the initial donations were sought by
representative
month, immediately gave the White House a free
John Huang, the former senior U.S. Lippo official who
ican Jewish pop
answers reveal a CO
pass, claiming to have seen nothing that would cause
at the time was employed at the Commerce
deeply concerne(
her to seek the appointment of an independent
Department. The DNC has maintained that the
security.
counsel. In the light of blockbuster revelations made
initial donations- $15,000 checks given on Nov.
The vast majorit:
by the Los Angeles Times this week where else
8, 1995, three days, it turns out, after Mr. Ning wired
but from a newspaper would Miss Reno learn of any
the funds from Indonesia - were solicited by Mr.
blockbuster development? - she ought to be
Huang's wife, Jane.
compelled to reconsider her opinion of the
As a Commerce official at the time, it would have
information presented by the tapes.
been illegal for Mr. Huang to have solicited the
contributions. Mr. Wiriadinata further maintained in
The Pentago
Probably the most intriguing exchange revealed
by the videotapes was the greeting given to President
his interview that Mr. Huang, in exchange for the
The latest revel
Clinton by a shy "Indonesian gardener," Arief
donations to the DNC, had promised to arrange
recovery of docum
Wiriadinata. "James Riady sent me," Mr. Wiriadinata
meetings between Mr. Wiriadinata and wealthy
excerpts of Gulf Wi
told the president at a Democratic National
Asian-American businessmen. Mr. Wiriadinata, who
and the resultant
Committee (DNC)-sponsored coffee on Dec. 15,
chafes at his depiction as "an Indonesian gardener,"
gation should I
1995. Apart from why an alien from Indonesia living
owned an Indonesia-based computer company that
is enough."
in modest circumstances in northern Virginia would
he had hoped to expand in the United States. That
Since I began is
be invited to a DNC-organized White House coffee,
was why he agreed to be the DNC's benefactor, he
issue in 1993 for the
the immediate question is: Why would James Riady,
told investigators. For more than a year, the DNC has
Pentagon
the scion of a multibillion-dollar Indonesian
maintained that the $450,000 largess, more than two-
records were lost,
conglomerate - the Lippo Group - that has
thirds of which was sent to the DNC after the
known to exist did
extensive interests in China and cl busi
Wiriadinatas had returned to Indonesia, was
pertinent historic:
simultaneousl
relationships with its government, want the president
attributed to the appreciation the Wiriadinatas
locati B.
to know that he had
this "Indo
an gardener"
expi
I in response to a get-well card that Mr.
The chairman o
10/10/97 FRI 10:29 FAX 202 456 9140
NSC DEMOCRACY
002
Central American suspension legislation
October 10, 1997
Q: What are the Administration's views on the bills that have
been recently introduced in the House and Senate to address the
situation of Central Americans who have been in the United
States for substantial periods of time?
A: The Administration welcomes the efforts by the Congress to
respond to the President's initiative to address the special
circumstances of Central Americans and others who have resided
in the United States for long periods of time. We have not yet
received the statutory language relating to both proposals and
thus do not have a position on them at this time. We will be
carefully reviewing the details of these proposals as soon as we
receive them and will work closely with the Congress to achieve
a result that is consistent with the President's original
objectives. These are (1) to bring greater fairness to the
consideration of cases of Central Americans and others who have
resided in the United States for long periods of time; (2) to
respond to the still fragile situations of those Central
American countries that have only recently emerged from civil
war.
Leanne A. Shimabukuro
11/05/97 07:06:13
PM
Record Type:
Record
To:
Elena Kagan/OPD/EOP
CC:
Jose Cerda III/OPD/EOP, Julie A. Fernandes/OPD/EOP
Subject: immigration legislative update
As of this evening:
Central Americans-- Looks like this is back on DC Approps, which the Senate has yet to pass.
Kennedy is holding the Central Americans piece to add Haitians and NJB. He is also trying to get a
relaxed suspension standard (from "extreme hardship" to "hardship for the ABC class, but will
probably pull back on this. Peter is hoping yesterday's letter will give us some leverage with the
CBC and Hispanic Caucus when the House votes on the DC bill. Timing on DC still unclear.
p
245(i)-- The CJS conference is meeting tomorrow at 9:00am. The Senate (Gregg) is exposedly
still holding firm on a permanent extension. Despite the strong House vote on motion to instruct
last week, House conferees will be looking to compromise through some sort of grandfather
provision. The current thinking is that a limited clean extension (2-5 years) of 245(i) is preferable
to a grandfathering provision-- which we might be able to get after the extension expires. INS has
been working with Abraham to get numbers on how much revenue would be lost through
grandfathering.
Commerce/Justice/State
/Chairmanof
Hollins
CJS
subcommittee
Sen Stevens CR)
1996 INS law:
Sets hish standa rd for getting
Sen. Byrd (D)
suspensimifor departation
(hardship)
Cap @ 4000/year.
one wanto show hardship
is # of years.
NJB - BIA decision
+
applying
says time that dont some connt- kinds stops of clock
once certain proceedings
retroactively
AG vacated NJB to review. Hasn't begin. reversed it.
Interest in codifying that provision (NJB)
to
non- Central Americans
Applying 1770 everyone
We want silence. Then AG can reverseit
We are fighting for future applica in
only to one subject to it
retroactively.
Suntum, Margard
Want tobea
list to receive
pressudeases
245(i):
Allows people who are here (:16gally Jusy
(filed) petitions for citizenship
Allows them to stay while petitions are
pending (pay $ 000 penalty.)
Fight extended over whether it can be permanently
Senate House was extended 8 leut. if permanently (passed approp. bill)
so provision was sibut
House had a vote - motion to instruct
(to remove prowsh)
Did not pass-
House conferees are trying todeal
Grandfather certain people
or-hit it
Sen wants a permanent extension
proposal
House
Visa petition
245(i)
Lastyear, created a sunset provision
on 245 (i)
SHIMABUKUR L @ A1
11/05/97 07:35:00 PM
Record Type:
Record
To:
Jose Cerda III, Julie A. Fernandes, Leanne A. Shimabukuro, WARNATH_S@A1@CD@LNGTWY
CC:
Subject: NORTHERN BORDER SENATORS FIGHTING IMMIGRATION PROVISION
Date: 11/05/97 Time: 17:39
BNorthern border senators fighting immigration provision
WASHINGTON (AP) Lawmakers representing states bordering Canada
voiced alarm Wednesday over an immigration provision they fear
could lead to a border traffic nightmare.
They said last year's immigration reform law will force the
Immigration and Naturalization Service to start checking everyone
entering and leaving the United States next fall.
That would stop the current free flow of traffic between the
United States and Canada at numerous points, including the busy
Ambassador Bridge that carries 30,000 cars between Detroit and
Windsor, Ontario, each day.
This is not Checkpoint Charlie. This is the largest unguarded
frontier in the world," Sen. Patrick Leahy, D-Vt., said at Senate
Judiciary immigration subcommittee hearing.
It is generating waves of controversy at our borders," said
Sen. Spencer Abraham, R-Mich., the subcommittee chairman.
Abraham introduced a bill Tuesday that would block the provision
of the 1996 immigration law that directs the INS to start keeping
records in October 1998 of aliens" departing and arriving in the
United States. The idea was to identify foreigners who are
overstaying their visas.
Of the estimated 5 million people living here illegally, roughly
40 percent have overstayed their visas.
The INS says the provision means they must track everyone.
Northern senators say that will create a traffic nightmare,
interfering with high-volume commerce between the nations and
damaging relations.
This can only be interpreted by our friends in Canada as being
mean-spirited," said Sen. Alfonse D'Amato, R-N.Y.
Abraham's bill would free the INS from the congressional mandate
to check all foreigners at northern and southern border crossing
points.
But including the Mexican border has angered some Southwestern
senators in states with high populations of illegal immigrants.
Last year, the INS apprehended 1.5 million people trying to enter
the country illegally, and only 40,000 of those were caught on the
northern border.
I will fight like a tiger anything that will weaken or
lengthen (the) time for us to get this situation under control,"
said Sen. Dianne Feinstein, D-Calif., a member of the subcommittee.
Feinstein said she was concerned about drug runners and the
costs to her state of providing services for an increasing
population of illegal immigrants.
The Clinton administration wants the immigration provision
eliminated for land and sea borders and instead wants a study
examining the feasibility of implementing the system.
Michael J. Jrinyak, deputy assistant commissioner for
inspections at the INS, told the Senate panel that would not delay
the implementation of the system at airports. People expect to
present documents and wait on departure at airports, but not at the
land borders."
Jrinyak said if the INS is allowed to conduct pilot programs, it
could find out if concerns about border delays and the need for
costly border tracking systems are valid."
APNP-11-05-97 1742EST
As of June 23, 1997 (3:19 PM)
Maria Echaveste
June 23, 1997
Jose,
Where are we on this?
Elena and NSC held a meeting on this a few
weeks ago with outside groups. She was going
to work with NSC and pull together a follow-
up meeting.
MEMORANDUM
Date: June 18, 1997
To:
Rahm Emanuel
Fr:
Howard Berman
Re:
DEPORTATION OF CENTRAL AMERICANS
Since the President's trip to Central America, a few things have occurred that would
allow the President, with sufficient bipartisan support, to follow through on his
commitment to find a way to deal with the quasi-legal groups from El Salvador,
Guatemala and Nicaragua.
Immigrants from each of these groups have been in the United States since the civil ware
of the 1980s and have been placed in varying degrees of temporary legal status over the
years. As members of the class action American Baptin Churches V. Thornburgh (ABC),
about 250,000 Salvadorans and Guatemalans have all been here at least since 1990, when
the ABC case was settled. At first, they were granted Temporary Protected Status, but
when that expired, both President Bush and President Clinton chose to extend their time
in the United States by extending the Deferred Enforced Departure policy.
Nicaraguans were welcomed to the U.S. by the Reagan and Bush Administrations during
the civil war in Nicaragua. Roughly 40,000 of the Nicaraguans who came to the U.S.
have yet to gain permanent residency. Under the Nicaraguan Review Program,
Nicaraguans were invited to seek suspension of deportation.
Members of both groups have established roots in their communities, have legally
worked and paid taxes for many years, and have had native-born U.S. citizen children.
Most are technically in deportation proceedings and would qualify for suspension of
deportation as it existed under the old law. The new law changes the eligibility
requirements for relief - now called "cancellation of removal."
Although Lamar Smith made assurances to his Republican colleagues on the Conference
Committee to the contrary. the INS implementation of the new law retroactively targets
these two populations for deportation. Under the old law. B non-permanent resident alien
would be eligible for discretionary relief from deportation known as "suspension of
deportation" if they met a certain set of requirements: 1) continuous physical presence
for 7 years; 2) good moral character; 3) deportation would cause extreme hardship to the
alien, or to their spouse, parent or child who is a green-card holder, or a citizen.
I
The new provision changed the requirements to ten years physical presence instead of
seven, and "exceptional and extremely unusual hardship" to the family but not the alien.
Most significantly, however, the new law changed the way "continuous physical
presence" is tolled and the INS has applied this new tolling retroactively. It is the
retroactive application of the new tolling provision that has snatched relief from
deportation away from the Central Americans.
The law states that "continuous physical presence" ends when the allen is served with a
notice to appear before the INS. The INS has applied this to anyone who has been
served with a notice before, on or after enactment of the new law.
The effect is that even though these Central American groups have been in the country for
more than seven years. most of them have been in close contact with the INS since their
arrival and were issued a notice by the INS called an "Order to Show Cause" before they
accrued 7 years in the United States. This makes them ineligible for suspension of
deportation. On April 7, 1997, the INS began to review the asylum claims of ABC class
members. Because of the changed circumstances in their home countries, most of the
members of the class will not be granted asylum. Unless they are determined eligible for
"suspension of deportation," most of the members of the class and their families - which
may include U.S. citizens will be forced to return to Central America.
While the INS and the Justice Department claim that they are merely implementing the
provision according to the letter of the law, there are legitimate challenges to their
interpretation. This issue has been playing itself out in the courts. In February. the Board
of Immigration Appeals (BIA) narrowly ruled to uphold the INS' interpretation of the law
by a vote of 7-5 in a case called "N-J-B." The dissenting judges argued that the INS
interpretation and retroactive application of the now tolling provision was contrary to
legislative intent. In fact, the dissenting opinion quotes Congressman Smith as saying
that it "was the clear intent of the conferees that, as a general matter, the full package of
changes made by this part of title III [a]fact those cases filed in court after the enactment
of the new law, leaving cases already pending before the courts to continue under existing
law." (142 Congressional Record H12293-01, Oct. 4, 1996).
Unfortunately, there is not much legislative history behind the provision, given the
"behind-closed-doors" process. Still. the INS argues that because the entire Act was
"enforcement-minded" that it should take the toughest possible interpretation.
On May 14. 1997, a federal district court judge in Miami, Judge Lawrence King, placed a
temporary restraining order on deportations of Central Americans and others who were
affected by the retroactive change in tolling. The plaintiffs in the case were basically
asking the Judge to overturn N-J-B. The INS lawyers in the case challenged the court's
ability to hear deportation cases, claiming that the new law barred the court from
jurisdiction. In his order, Judge King did not discuss the merits of N-J-B, but focused on
the jurisdictional issues and denied the INS' motion to dismiss on those claims. The INS
2
has appealed the order to the 11th Circuit in Atlanta, claiming that Judge King's court has
no jurisdiction. The 11th Circuit is awaiting Judge King's ruling.
The TRO expired June 12, 1997, and Judge King has postponed a final ruling on
jurisdiction and on N-J-B while he pores over the thousands of pages of INS testimony.
Preliminary indications are that he will rule in favor of overturning N-J-B. INS attorneys
have indicated that they will also appeal that decision to the 11th Circuit Court
On Saturday, June 7, Newt Gingrich was in Miami at a meeting with Rep. Diaz-Balart,
Rep. Ros-Lehtinen, Job Bush, and others where he was reported to have said that he
opposed "enforcing new laws retroactively on immigrants already in the United States."
As quoted by Reuters, Gingrich said "it's one thing to say about the future, let's set
ground rules we all understand."
Congressman Smith has on multiple times assured his colleagues that the new law is not
retroactive. The latest being in a "Dear Colleague" issued last week in which he claimed
that "aliens who were in proceedings before the April 1, 1997, effective date of the new
Act will, for the most part, have their cases heard under the ruled applicable before April
1." This is not what INS has done.
Given the recent statements and events it seems like the President has enough bipartisan
support to bring us closer to finding & solution to the foreign policy and humanitarian
concerns surrounding deportations of these Central American groups.
The first step would be to keep the INS from initiating deportations until Judge King
makes his ruling. The second, and most important step would be for the INS to let Judge
King's ruling to overturn N-J-B stand. The INS should not appeal to the 11th Circuit
Court. An alternative is for the Attorney General to oversule the BIA's N-J-B decision,
which she has the authority to do. Finally, because there are several options currently
being considered by both the Administration and Congress as to how to deal with this
situation, the INS should stop adjudicating the ABC class asylum claims until the issue is
settled.
I hope that you understand my deep concern in this issue, and that you will recognize that
the events of the past few days have opened up a limited window of opportunity to allow
the President to take administrative action to find a just and permanent solution to this
problem which has serious foreign policy implications.
cc: maria Echaveste
3
OFFICE OF THE DEPUTY ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
FACSIMILE TRANSMISSION SHEET
TO:
Leeann S.
Rob malley
Fax #:
(
)
Voice #: (
)
FROM:
Gerri L. Ratliff, Counsel to the Deputy Attorney General
Office of the Deputy Attorney General Room # 4215
U.S. Department of Justice, Main Justice Building
Washington, D.C. 20530
FAX #: (202) 514-9077 Voice #: (202) 514 - 3392
THIS TRANSMISSION CONTAINS 10 SHEETS INCLUDING THIS SHEET
SUSPENSION
Special
Note (s) :
Idea's the lakst dra.c.t if
you need it - - I have to
NE in John Trasuring's edits
-to the les Stratesy tomorrows
that's H-
If any page (s)
are missing, please call sender at the above voice number for re-
transmission.
###
TOO M
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Introduction
Many Salvadorans, Guatemalans, and Nicaraguans who fled their countries during the mid to late
1980s were afforded some type of temporary status in the United States for many years. In all
cases the status was, by its terms, temporary and not intended to guarantee or lead to permanent
residency, nor was it intended to guarantee that those covered would remain in the United States
long enough to meet the seven-year residency requirement for suspension of deportation.
However, as a practical matter many of these people established strong ties to the United States
during their residency here and held the expectation that they might qualify to apply for
suspension of deportation before their deportation was enforced,
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter IIRIRA)
severely restricts the availability of suspension of deportation by extending the length of time
required in the United States, increasing the hardship requirement, and placing a limit on the
number of cases that can be granted each year. These changes, as discussed below, render the
option of suspension of deportation unavailable for most of the Guatemalans, Salvadorans, and
Nicaraguans who came to the United States in the 1980s -- a matter which is of major concern to
countries in the region. In his recent trip, the President pledged to consult with Congress on this
issue. Below is a brief history of these cases and options for Congressional action.
Background
During the mid to late 1980s, in response to civil war and wide-spread political persecution in
Central America, large numbers of civilians from Guatemala, El Salvador and Nicaragua fled to
the United States, most entering illegally at the/Southwest border. Many of these individuals
were bona fide refugees, others fled general conditions of civil unrest or came for economic
reasons. Some were apprehended by the Immigration and Naturalization Service (INS); some
who were not apprehended came forward and affirmatively applied for asylum; and others have
resided unidentified in the United States. The dases of those known to the INS were handled
through a variety of means. In addition to the Salvadorans, Guatemalans, and Nicaraguans who
have resided in the United States under a form of temporary status, there are many others from
these countries residing in the United States who were never under such status. These include
illegal residents who were not apprehended and never came forward to identify themselves, and
many who entered the United States illegally during the 1990s.
Nicaraguans
The Nicaraguans' affirmative asylum claims were largely heard and resolved by the INS. Those
denied asylum were placed in deportation proceedings before the Executive Office for
Immigration Review (EOIR), where most renewed their claims for asylum. Those Nicaraguans
apprehended by the INS were also placed in proceedings, and many of those also filed asylum
claims with EOIR In July 1987, the Nicaraguan Review Program was established under
Attorney General Meese. Under this program, approximately 30,000 Nicaraguans in proceedings
(or who already had a deportation order) were entitled to a special Department of Justice (DOJ)
review of their asylum application, if it had been denied, prior to being deported. During this
review period, which lasted until June 1995, most of the Nicaraguans in proceedings were
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protected from deportation and were entitled to work authorization. When the program ended in
June 1995, as a special transitional measure, Nicaraguans with a final order of deportation were
informed that they could continue their work authorization if they filed with EOIR a prima facie
valid motion to reopen their proceedings to apply for suspension of deportation. They would
meet this test if they had seven years physical presence in the United States and had no serious
criminal records.
As of April 1, 1997, approximately 38,000 Nicaraguans were in deportation or exclusion
proceedings. This includes 16,400 Nicaraguans who had final orders of deportation as of July 1,
1996. It is not known how many of these Nicaraguans were those who fled their country in the
mid to late 1980s.
Guatemalans and Salvadorans
There was considerable controversy regarding the treatment and status of Salvadorans and
Guatemalans during the 1980s. A major class action law suit, American Baptist Churches V.
Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (ABC), was filed against the United States
government in 1985, alleging discriminatory treatment of Guatemalans and Salvadorans in
asylum adjudication, both by the INS and by EOIR. The DOJ settled the case in 1991, entitling
class members to special asylum adjudication procedures which were only fully put into place as
of April 7. 1997, for the bulk of the class. Pursuant to the settlement, the vast majority of ABC
class members have been protected from deportation until their asylum claims are decided, and
they are entitled to apply for work authorization. The ABC class is specifically defined by
nationality and date of entry to the United States: Guatemalans who entered on before October
1, 1990, and Salvadorans who entered on or before September 19, 1990.
Estimated ABC class: 240,000, includes:
190,000 Salvadorans
50,000 Guatemalans
(The class includes 25,000 class members in proceedings prior to April 1,
1997; nationality unknown)
Another important note is that as an exceptional act of Congress, as part of the 1990 Immigration
Act, Congress authorized Temporary Protected Status (TPS) for Salvadorans then in the United
States (approximately 190,000 registered), temporarily suspending their return to their war torn
country. TPS was in effect through June 30, 1992, and through the vehicle of Deferred Enforced
Departure, protection was extended by both the Bush and Clinton administrations until
December 31, 1994. Virtually all Salvadorans protected under TPS were also ABC class
members.
ABC class members have had asylum applications pending in the asylum backlog for many
years, pending the termination of TPS and DED for Salvadorans and while the Administration's
priority was reforming the asylum program and handling recently filed cases first. It is expected
that only a small percentage of the ABC class members will now be eligible for asylum because
of changes in their countries. Until recent changes in the Immigration and Nationality ACT, many
expected that they might have the chance to apply for suspension of deportation under pre-
2
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IIRIRA law, This was not part of the settlement agreement, but the expectation arose from the
suspension provisions of the pre-IIRIRA Immigration and Nationality Act.
Changes in the New Law and Congressional Intent
The recent changes to the immigration law dramatically restricted the discretionary relief of
suspension of deportation, now called cancellation of removal. The Conference Committee's
report on the IIRIRA stated that these changes were made because suspension of deportation was
being applied too widely and not as an extraordinary remedy in extreme cases, as it was
originally intended. Immigration Judges had been granting suspension at a 50% rate, then the
rate went to about 75% after the decision by the Board of Immigration Appeals (BIA) in Matter
of O-J-O, Int. Dec. 3280 (BIA 1996).
However, it is likely that many in Congress may not have been aware of the consequences of
some of the changes to the suspension provisions and the impact they would have on long-
standing de facto residents. In particular, many may not have been aware of the provisions
which severely limited any transitional measures for the ABC class and those already in
proceedings before the April 1, 1997, effective date of the IIRIRA. For others in Congress, even
the extreme changes were deliberate. specifically aimed at eliminating the possibility of an
amnesty-like program for Central Americans who came illegally to the United States in the
1980s, and at further restricting relief for illegal immigrants. For these members of Congress,
there will be strong resistance to any modification of the new laws.
1.
Raised Standard for Hardship and Length of Time in the United States
The new cancellation of removal provisions, which apply only to people placed in
proceedings after April 1, 1997, limit relief to individuals who have been physically
present in the United States for a period of ten, as opposed to seven, years. The hardship
standard was raised so that the individual must now demonstrate that removal would
result in "exceptional and extremely unusual hardship," as opposed to extreme hardship.
Further, this hardship must be to the individual's spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent residence; a showing of
extreme hardship to the individual himself or herself no longer suffices.
2.
Created a Cap on the Number who Can Be Granted Relief
Congress also sought to limit the number of individuals who could be granted either
suspension of deportation or cancellation of removal, by limiting to 4,000 the number of
cases that may be approved per year. Previously, there was no limit on the number of
individuals who could be granted suspension of deportation. The cap was adopted as a
compromise to avoid eliminating suspension altogether. It was set considerably higher
than available figures (2,500 grants in FY 1994), but the members trying to preserve
suspension did not attend to the likely effect of the ABC caseload and other factors
causing a steady upward trend (3,750 grants in FY 95, and 7,500 in FY 96).
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By mid-February 1997, the 4,000 cap for fiscal year 1997 was nearly exhausted. In light
of the need to address the transitional issues raised by the new cup, the Attorney General
has decided not to deport before September 30, 1997, those who would qualify for
suspension of deportation but for the cap, pending negotiations with Congress. In this
context, the INS and the DOJ have initiated discussions on the Hill concerning possible
legislation exempting from the cap transitional cases (those in proceedings prior to April
1, 1997). The DOJ will soon issue a regulation implementing the cap by means of a
lottery among the pool of persons who would otherwise have received suspension.
Winners will receive lawful permanent resident status; those not selected will receive a
deportation order.
3.
Established Rule to Stop Time in the United States from Accruing after Initiation of
Proceedings
Formerly, individuals could continue to accrue time toward the seven years throughout
the course of proceedings and appeals. To eliminate the incentive for prolonging
immigration proceedings, Congress created a rule providing that the time necessary for
purposes of cancellation of removal must have accrued before initiation of removal
proceedings. The Administration supported this rule for prospective application, but the
conference committee bill, in a poorly drafted provision. made the stop-time rule
retroactive. The poor drafting has led to continuing litigation, but the BIA ruled that it is
fully retroactive. Matter of N-J-B, Int. Dec. 3309 (BIA 1997). The retroactive
application of the stop-time rule has significant consequences for the approximately
38,000 Nicaraguans who, prior to April 1, 1997, were placed in proceedings or had a final
order of deportation issued and the 25,000 ABC class members who were placed in
proceedings prior to April 1, 1997.
Effect of the New Law and Options for Congressional Action
Although suspension of deportation was always a discretionary form of relief, and by no means &
guarantee for any individual, the new standards combined with the cap and the retroactive
application of the stop-time rule dramatically limit this form of relief. As a result, approximately
280,000 Central Americans may eventually be subject to deportation -- of those only a small
percentage will be eligible for asylum or cancellation of removal. The Central American
governments are concerned that this threatens the stability and security of the region. Central
American governments are very concerned about not only the loss of remittances, which
comprise a significant percentage of their revenue, but also their ability to reintegrate this
population into their developing economies and post-war societies.
During his recent trip, President Clinton pledged to consult with Congress regarding ways to
soften the harsh consequences of the new law for this population. Set forth below are the major
options for Congressional action.
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1.
Lift or Modify Cap for Cases in Proceedings prior to April 1, 1997
The most modest option is to eliminate or modify the 4,000 cap for individuals who were
placed in proceedings prior to April 1, 1997. The DOJ is already working with staff from
the House and Senate immigration subcommittees towards a legislative modification of
the cap. Our preferred modification would be to move the effective date of the cap from
October 1, 1996, to April 1, 1997, and make the cap applicable only to deportation cases
filed after April 1, 1997. With such modification, the thousands of cases already in the
pipeline before April 1st that meet the suspension criteria could be granted suspension
without the number of grants being limited by the cap.
Staff for Rep. Lamar Smith, Chairman of the House Immigration Subcommittee, are
interested in modifying the cap. but only if we agree to: (1) offsetting legal immigration
numbers to compensate for the increased number of suspension grants that would result
and (2) codifying the BIA's N-J-B decision. However, staff for Senator Abraham,
Chairman of the Senate Immigration Subcommittee, do not favor an offset to legal
immigration. As a result, we are caught in the middle. In addition, there needs to be a
decision on how such an offset should be structured, if we eventually have to make such a
recommendation.
We are relatively confident that the DOJ will be able to work out an acceptable legislative
modification to the cap that will partially ameliorate the harsh effects of the new
provision. However, we strongly believe that any broader legislative options would
require White House intervention with Congress at a higher level than the Immigration
Subcommittees.
Effect: Lifting the 4,000 yearly cap could affect a relatively small number of individuals;
it is roughly estimated that from berween 19,000 to 38,000 individuals who were placed
in proceedings prior to April 1, 1997, would be granted suspension of deportation if there
were no cap applicable to them. (We do not know how many of these are Central
Americans, but we believe a strong majority consists of Central Americans and
Mexicans.) This option alone would do nothing to help the approximately 215,000 ABC
class members who have not been placed in proceedings, because they would still be
required to meet the new ten-year and heightened hardship requirements and would be
subject to the 4,000 yearly cap. Nor would it assist those Nicaraguans and ABC class
members already in proceedings by April 1, 1997, who cannot meet the physical presence
requirement due to retroactive application of the stop-time rule.
Pros: This affords important relief to at least 19,000 individuals, while avoiding a
nationality-specific remedy, Also, because it is a modest proposal and keeps unchanged
the substantive limits to suspension, it may be acceptable, as a transitional mechanism, to
the harshest critics on the Hill.
Cons: Because this option, taken alone, would affect a relatively small number of
individuals, it would not address the concerns of the Central American governments or
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most of the Guatemalans, Nicaraguans, and Salvadorans who have been living in the
United States.
2.
Reverse the Retroactive Effect of the Stop-Time Provision and Lift or Modify Cap
for Cases in Proceedings prior to April 1, 1997
A legislative reversal of the BIA holding in Matter of N-J-B could enable a number of
those who were placed in proceedings prior to April 1, 1997, to be eligible for suspension
of deportation. Although the BIA decision could be overturned on appeal in federal
court, we discuss here the possibility of legislation providing that the stop-time provision
is not to be applied retroactively to cases already in proceedings prior to April 1, 1997.
Effect: It is estimated that the number of individuals already in proceedings by April 1,
1997, who would be granted suspension of deportation if Matter of N-J-B were overruled
would be 38,000 to 76,000. This number includes all nationalities. With regard to
Central Americans, this change would largely assist those Nicaraguans who were placed
in proceedings prior to April 1, 1997. However, it would potentially affect only a small
percentage of the ABC class (25,000), since the bulk of the class, approximately 215,000
individuals, has not yet been placed in removal proceedings.
Pros: This avoids a nationality-specific remedy. It would have a significant impact on
the availability of suspension for Nicaraguans who came to the United States in the mid
1980s and were placed in proceedings prior to April 1, 1997.
Cons: This would have relatively little effect on availability of suspension of
deportation to the ABC class, which is of great concern to the governments of Guatemala
and El Salvador. This option is also likely to meet with strong opposition from the
principal backers of the IIRIRA in Congress, and the proposal could undercut the chance
to gain their support for a version of option one.
3.
Apply pre-April 1, 1997, Suspension Standards to ABC Class Members,
Lift or Modify the 4,000 Cap for ABC Class Members and Individuals in
Proceedings prior to April 1, 1997, and Reverse the Retroactive Application of the
Stop-Time Rule for Individuals in Proceedings prior to April 1, 1997
Individuals in proceedings prior to April 1, 1997, are already subject to the substantive
requirements for suspension of deportation under the INA, before it was amended by the
IIRIRA. This option would extend the application of the previous suspension
requirements to the entire ABC class.
Effect: Unlike the options above, this option gives all 240,000 ABC class members a
chance to apply for suspension under the old rules. This does not mean that all 240,000
will qualify; we expect about 50% to apply, allowing for no-shows and those who obtain
other forms of relief, and 75% of those to succeed, yielding approximately 90,000 who
will obtain lawful permanent resident status. Depending on how quickly the asylum
office and EOIR caseload is handled, which we estimate would be from 3 to 5 years, this
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would amount to an average of 18,000 to 30,000 suspension grants to ABC class
members per year. Taking into account those not in the ABC class who would also
benefit from this option, we estimate that this option could result in grants of suspension
of deportation to roughly 119,000 individuals.
Pros: This option would significantly benefit members of the ABC class, whose
expectation has been, until recently. that they might eventually be able IO apply for
suspension of deportation should asylum be denied. It would additionally benefit the
Nicaraguans who have been residing in the United States since the mid to late 1980's and
who were placed in deportation proceedings prior to April 1, 1997. As such, it would go
far to foster stability and security in Central America and address the concerns of the
governments of Guatemala and El Salvador regarding integration of this population into
their developing economies and post-war societies.
It has been argued by ABC class counsel and special interest groups that special treatment
for the ABC class is justified by these individuals' special legal status under the
settlement agreement, which was viewed by them as a remedy for past mistreatment.
Such treatment arguably also recognizes the exceptional circumstances faced by these
individuals, as demonstrated by Congress in granting TPS, and their long standing status
in the community.
Cons: Applying pre-April 1st suspension requirements to the ABC class singles out two
nationalities for special treatment and cuts against Congress's intentions in granting TPS
-- by definition a temporary form of protection. In addition, critics will argue that there
is no basis to afford ABC class members special treatment in terms of suspension,
because the settlement focused solely on class members' asylum adjudications. Class
members expectations about suspension were arguably no different from persons of
other nationalities living for a long period in the United States illegally. There were also
many non-ABC cases in the asylum backlog similarly affected by the new law. Finally,
critics will portray this position as an amnesty and will use it to call into question the
Administration's commitment to serious enforcement of immigration laws. Without the
Administration's complete commitment to fighting for it, even proposing this option,
would jeopardize the success of either option number one or two, as it could cause the
principle supporters of the IIRIRA in Congress to harden their position on any potential
changes to the law.
4.
No Change in Standard, but Eliminate or Modify the Cap for All Cases Regardless
of Date Proceedings Initiated
Effect: Assuming there is no change in the cancellation of removal rules, some
proportion of ABC class members and Nicaraguans will meet the requirements for either
suspension or cancellation. Either they will have been placed in proceedings prior to
April 1, 1997, and meet the requirements of the old suspension of deportation law, or
they will meet the requirements of the new cancellation law because they will have been
in the United States continuously for ten years, show good moral character, and
demonstrate the requisite hardship to relatives who are United States citizens or lawful
9
800
roa
20202 514 9077
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05/15/97
MHY.
15.
DRAFT 4/15/97
permanent residents. Approximately 25% of the ABC class members entered in 1987 or
earlier, meeting the threshold qualification (ten-year physical presence) of the new
suspension rules. This number will increase over the course of processing the ABC cases,
especially if we adjudicate cases on 4 first in, first out basis. However, this change would
not benefit a significant number of ABC class members and Nicaraguans who cannot
meet the cancellation standards or are precluded from meeting the suspension residency
requirement because of the retroactive application of the stop-time provision.
Pros: Elimination or modification of the quantitative cap on what are qualitative
decisions would be a positive step toward fairly providing relief and bringing the cap
more in line with the numbers of individuals who may qualify for suspension of
deportation or cancellation of removal. This option is more equitable than the lottery
system described above.
Consi This option would not significantly help ABC class members and Nicaraguans. In
addition, Congress intentionally included the cap with the goal of restricting the number
of people who will have this relief available to them. The Administration would face
opposition to this proposal and would have to explain why the 4,000 number is too low,
especially when stricter cancellation standards were designed to limit the number of
grants. Like option number three, proposing this option could also jeopardize the success
of either option number one or two, as it could cause the principal supporters of the
IIRIRA in Congress to harden their position on any potential changes to the law. It will
heighten suspicion that the DOJ will not enforce the new tighter rules as Congress
intended.
Possible Offset against Legal Immigration
In preliminary discussions on the Hill regarding transitional approaches for implementing the
new law, one proposal has been to have an enlarged cap offset by the legal immigration number.
Possible options include using slots from the diversity visa lottery (55,000 immigrants per year)
or the unused employment-based visa numbers. This is a controversial approach, particularly if
the unused employment-based visas are used. Slots taken from this category would otherwise be
made available to the preference category for spouses and unmarried children of lawful
permanent residents, thereby slowing progress of those on the waiting list. already facing over
three years' wait. Based on current estimates, it would require annual offsets as follows:
Option 1:
19,000 - 38,000; over $ years: 3,800 . 7,600 per year
Option 2:
38,000 - 76,000; over S years: 7,600 - 15,200 per year
Option 3:
119,000; over 5 years: 23,800 per year
Option 4:
Difficult to estimate
S
ГОД
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17:19
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MAY. 15.1997 11:04HM
DRAFT 4/15/97
Numbers and Status of Certain Central Americans in the United States
Although it is difficult to come up with a precise number of Nicaraguans, Salvadorans, and
Guatemalans living in the United States who are affected by the changes to the law governing
suspension of deportation, we can provide the following approximations:
Base Population
Nicaraguans
Total: 38,000 in deportation or exclusion proceedings (as of 4/1/97)
This number includes 16,400 with final orders of deportation as of 7/1/96, some of whom
may have filed motions to reopen.
ABC cases pending: 1
Total: 240,000
Salvadorans: 190,000
Guatemalans: 50,000
These numbers include 25,000 ABC class members placed in proceedings prior to 4/1/97
Potential Numbers to Benefit From Proposed Options
1.
Lift or Modify Cap for Cases in Proceedings prior to April 1, 1997
Total: 9,000 . 38,000
Per year over 5 years: 3,800 - 7,600
2.
Reverse the Retroactive Effect of the Stop-Time Provision and Lift or Modify Cap
for Cases in Proceedings prior to April 1, 1997
Total: 38,000 - 76,000
Per year over 5 years: 7,600 - 15,200
3.
Apply pre-April 1, 1997, Suspension Standards to ABC Class Members,
Lift or Modify the 4,000 Cap for ABC Class Members and Individuals in
Proceedings prior to April 1, 1997, and Reverse the Retroactive Application of the
Stop-Time Rule for Individuals in Proceedings prior to April 1, 1997
Total: 119,000
Per year over 5 years: 23,800
4.
No Change in Standard, but Eliminate or Modify the Cap for All Cases Regardless
of Date Proceedings Initiated
No estimate.
1 Based on TPS and ABC registration databases
ГОД
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NATIONAL SECURITY COUNCIL
FAX COVER SHEET
Office of Democracy, Human Rights
and Humanitarian Affairs
NATIONAL
From:
SCOTT BUSBY
SECURITY
To:
MARIA ECHAVETTE 66218
COUNCIL
Agency:
PETER JACOBY
62604 6
ROB WEINER
6 1647
Fax Number:
STEVE WARNER 5 5576
Date/Time:
LEANNE SHIMABUKURO
17th & Penn, N.W.
67028
Washington, D.C.
No. of pages to follow:
1
20504
Message:
Did you get a complete,
/ ABRAHAM OFFER TO BE
clear transmission? If
not, please call:
DISCUSSED AT 5 P.M. PLS HOLD
(202) 456-9141
CLOSE ( DO NOT SHARE w/
GROUPS )
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DOJ
d
002
09/09/97
17:45
202 514 5499
OLA
1
002
09/09/97 TUE 11:37 FAX 202 225 3672
IMMIGRATION & CLAIMS
$
003
Embargoed
Outline of Proposed Provisions for Legislation on Central Americans
Codify rule in N-J-B-, as decided by the Board of Immigration Appeals. Clarify that in
cases where the Attorney General terminates and initiates new procedures under the
post-IIRIRA rules, the previously-issued Order to Show Cause is void and thus, time
continues to Fun until the new Notice to Appear is issued.
Provide exception to N-J-B- rule for Salvadorans and Guatemalans in the ABC class and
for Nicaraguans who first entered the United States prior to April 1, 1990. In such
cases, the period of continuous physical presence is deemed to terminate on April 1,
1997.
For suspension of deportation applicants other than the ABC class members,
Nicaraguans. and asylees described in previous paragraph, the suricter standard of
exceptional and extremely unusual hardship to a citizen or legally-resident immediate
relative of the applicant will apply. This new requirement will be effective on the date
of enacument of these amendments.
Aggregate limitation of 4,000 is further clarified ID apply to decisions to suspend/cance)
(and not only to adjustments. thus overturning adverse court decisions to this effect).
For FY 1997 only. 4,000 limitation applies to decisions to cancel or suspend made after
April 1, 1997. For future years. limitation can be exceeded by up to 10,000. but for
each number over 4,000, a visa must be subtracted from the following year's allotment
for diversity immigrant visas.
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10/09/97
UCI DD yr 10:43 22025145231 FR 00000
13:00
HQCIR
1002/003
IU 95140400
1.02/03
oct.
3
Lemark
Smith Proposed
Nicaragusm Adjustment and Central American Deportation Relief Act
Any Nicaraguan present in the United States on date of enactment (A) whose presence
was pursuant to a lawful admission after inspection by an immigration officer prior to
December 1. 1995; or (B) who otherwise entered the United States prior to December
1. 1995, and who prior to December 1, 1995 either. (1) applied for asyhm with the
INS; (2) was issued an Order to Show Cause under section 242 or 242B of the
Immigration and Nationality Act (as in effect prior to April 1, 1997); (3) was placed in
exclusion proceedings under section 236 of the Immigration and Nationality Act (as in
effect prior to April 1, 1997); (4) applied for employment authorization; (5) applied for
adjustment of status under section 245; or (6) applied for any other benefit under the
NK
Immigration and Nationality Act may be adjusted to the status of an alien lawfully
wuty by
admitted for permanent residence if the alien makes an application for such adjustment
re/1/95
and is otherwise admissible to the United States for permanent residence. Application
must be filed by April 1, 2000. A decision by the Anorney General regarding the
eligibility of any alien for such adjustment shall not be reviewable in any COUIL
Any Nicaragum who entered the United States prior to December 1, 1995, but does not
meet any of conditions listed in (A) or (B)(1) through (6) above shall be eligible to
apply for parole, with employment authorization, from the Attorney General. Parole
may be granted for Я period of up to 12 months, during which time the alien shall have
the burden to establish that the alien did, in fact, enter the United States prior to
December 1, 1995. If the alien meets this burden, the alien is eligible to apply for
adjustment to lawful permanent resident status under same conditions as above.
Any Nicaraguan who is the spouse, child, or unmarried son or daughter (provided that
such unmarried son or daughter entered the United States prior to December 1, 1995)
of an alien adjusted to lawful permanent resident status under the prior two paragraphs
shall be eligible to apply fox such adjustment.
In deportation cases pending prior to April 1, 1997, the "stop-time" rule enacted in the
deportation. 1996 Megal Immigration Reform Act will apply to any applications for suspension of
The stop-time rule will not apply to the following classes of Central Americans: (I)
Guatemalans and Salvadorans who are members of the plaintiff class in ABC v.
Thoraburgh; (2) other Gustemalans and Salvadorans who applied for asyium on or
before April 1, 1990, and whose claims were not adjudicated prior to April 1, 1997; (3)
the spouses and minor children (at the time of granting relief) of Guatemalans and
Salvadorans described in (1) and (2); (4) adult, unmarried sons and daughters of
Guatemalans and Salvadorans described in (1) and (2) and who have been granted
relief, 1990. provided such sons and daughters entered the United States prior to October 1,
DANE
as
10/09/97 THU 14:39 FAX 202 456 9140
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10/09/97 13:01 C2025145231
HQCIR
003/003
Members of these defined categories of Salvadorams and Gustemalans whose cases are
under the jurisdiction of the post-April 1 rules will have their claims for cancellation of
removal adjodicated under the more generous standard of 7 years continuous residence
to ale
and
extreme
hardship.
( as opp 10 4 R5/ exceptional + musual hardship
To cliizen /LPR.)
Any member of the defined classes of Guatemalans and Salvadorans who was demied
eligibility to apply for suspension of deportation or cancellation of removal due to the
time-stop rule prior to July 10, 1997, shall be eligible w petition for reopening of the
case and rehearing under the new rules established in this legislation (under time
periods specified in H.R. 2533).
The defined classes of Guaternalans and Salvadorans shall not be subject to the
numerical cap 8 suspensions of deportation and cancellations of removal. Aliens in
deportation proceedings prior to April 1. 1997, and who apply for suspension of
deportation pursuant to the special rules for bauered spouses and children (former
section 244(a)(3)) also shall not be subject to the numerical cap. The numerical cap
will be clarified to state that it applies to decisions to suspend and cancel removal as
well 25 to decisions to adjust status after such relief has been granted.
Attorney General shall have sole discretion, with no judicial review, to determine
whether any particular alien is eligible for: the exemption from the stop-time rule; the
treatment of suspension applications under the pre-April 1 standards; the opportunity to
petition for reopening: and the exemption from the munerical cap outlined in the prior
paragraphs.
As an offset for the Guatemalans and Salvadorans who will receive adjustment as a
result of being granted suspension of deportation or cancellation of removal, the
category for admission of unskilled workers (section 203(b)(3)(A)(iii) of the INA) will
be repealed. Any alien with an approved petition for admission in this category as of
date of enactment will be eligible for admission within current limits.
Dos 20,000
INS 20,000
be. 76.000 In parely
50 None*
Labor at pends 00L
$,000 Yr New in
Ret pendy- INS
70
"15- opply
#s-
33 pat
language
18
15 -
OCT 08 '97 18:46
202 224 6984
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NOTE FOR ELENA KAGAN/LEANNE SHIMABUKURO
FROM :
ROB MALLEY
Subject: Administrative Steps on Suspension of Deportation
At the meeting today, the advocates strongly urged us to consider
administrative, as opposed to legislative, steps. The most
important ones they propose are:
1. That the AG reverse the NJB decision -- which held that the
rule on accrual of time for suspension purposes applied
retroactively. As you know, 5 of the 7 BIA judges on the NJB
panel dissented from the majority opinion, and some federal
courts also have disagreed with NJB.
I have raised this with DoJ and INS in the past, and have been
told that OLC's view is that the advocates' position is not
defensible. OLC has so advised the AG. of course, the White
House could request that this be reviewed, and could inform DOJ
of its preferred policy outcome, but this is hardly likely to
yield a different result.
2. That DoJ and INS interpret the cap provision to apply to the
total number of adjustment granted per year, not the number of
suspensions/cancellations of removal. Aliens who are granted
suspension would be placed on a waiting list and permitted to
remain here legally until a number is available for adjustment in
a subsequent fiscal year.
My recollection on this one is that INS/GC thought this was not
the preferred interpretation, albeit a defensible one. At the
same time, DOJ/INS strongly believed that adopting that approach
would be viewed on the Hill (i. by Smith) as an end-run around
the cap. In litigation on this issue, DoJ has opposed the
advocates' view.
The WH could ask Justice whether it the advocates' approach is
defensible and, if it is, could request that it be adopted.
However, without the other fixes that we would like (regarding
NJB and the retroactive application of the hardhsip standards for
ABC class members), this would be of limited value.
3. That DoJ interpret the ABC agreement to guarantee that
suspension claims of class members would be adjudicated under the
old rules. ABC class members would be subject to 7 year, more
lenient standard, regardless of when they were put in
proceedings.
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2
I have not discussed this with DoJ or INS at all, and therefore
do not know whether the settlement can be so read. . However, DoJ
has taken the firm position that the settlement only had to do
with asylum, not with suspension -- which gives us some clue as
to where they would come out.
cc: ce: Tosi / Leanne Tor
Imunipation-dipution
FYI.
THE PRESIDENT HAS SEEN
Eleva
THE WHITE HOUSE
07-14-97
WASHINGTON
Copied to
July 8, 1997
Berger
MEMORANDUM FOR THE PRESIDENT
Echaveste
Hilley
FROM:
PHIL CAPLAN Pal
Read
SUBJECT: Central American Migrants
Ruff
COS
Sandy Berger, Maria Echaveste, John Hilley, Bruce Reed and Chuck Ruff recommend in the
attached memo that you approve a course of action to provide relief to Central American
migrants affected by the new immigration law. The strategy includes administrative action to be
taken by the Attorney General and proposed legislation. Executive action by you would be held
in reserve in case the legislative effort is unsuccessful. Sandy et. al. seek your approval as
soon as possible so as to permit Hill briefings on the legislation to move forward.
Background. As you know, the immigration law severely restricts the government's ability to
suspend deportation for aliens who have resided in the U.S. for considerable periods of time.
This greatly affects Central Americans who entered here in the 1980s. Two groups are most at
risk who had been authorized to stay: 1) roughly 40,000 Nicaraguans who the Reagan
Administration protected from deportation while DOJ reviewed their asylum applications - the
program ended in June 1995;2) roughly 190,000 Salvadorans and 50,000 Guatemalans who were
protected from deportation under a court settlement. Under the old rules, roughly 120,000 in
these groups qualified for suspension. Under the new rules, only a fraction will be eligible.
Course of action. Any long-term solution to the problem will require legislation, but there are
some administrative actions we can take now. Administrative: the Attorney General will: (i)
announce temporary steps to ensure that any migrant who would havejqualified for suspension
under the old rules would not be deported; (ii) announce her review of the "stop-time" decision
by the Board of Immigration Appeals - a provision in the new law said that time spent in
deportation proceedings did not count towards the residency requirement and the Board ruled
that the provision applied retroactively. The AG's review of the decision will be applauded.
Legislation: Our proposal, which will very likely receive bipartisan support, will restore
qualified migrants to the status they had before the new law. Executive action (to be held in
reserve): you have available to you a presidential grant of deferred enforced departure (DED).
DED would protect qualified migrants from deportation, but it is onlyia temporary solution (18
months) and does not offer naturalization or permanent resident status and could be revoked by a
future President. In 1993, you used DED for a portion of the Salvadorans, in the hope that many
would eventually qualify for a change in status, but the new law changed the landscape.
Your advisors recommend that you authorize the administrative stepsand legislative effort, but
hold DED in reserve to see if the legislation moves by the August recess. DED will be mentioned
privately to some Members. Rahm concurs with the recommended course of action.
Agree
Disagree
Discuss
JWL-10-1997 08:25 TO:LEANNE SHIMABUKURO
FROM:GAYMON, D.
P.3/7
DRAFT
Proposed Amendments Regarding Suspension of Deportation
Background
prior to April 1997?
This legislation provides 8 better transition to the new rules applicable to relief
formerly known as suspension of deportation. In particular, it avoids any unfairness Unit
could come from applying new rules to pending cases, and it recognizes the continuing
effects of special legal measures taken OVST the last decade with regard to Central
American countries then mired in civil/war. On the other hand, it does not provide for an
amnesty - instead it merely provides that applicants for suspension of deportation who
were in the administrative pipoline. as herein described, must continue to meet the
standards that applied before the 1996 Immigration reform law took effect.
Under previous law (former Immigration and Nationality Act [INA] § 244),
suspension could be granted, in the discretion of the immigration judge. to an alien who
has been present in the United States for seven years. shows good moral character, and
demonstrates that deportation would causo "extreme hardship" to the alien or to a spouse,
parent, or child who is a lawful permunent resident or a U.S. citizen. Under amendments
adopted by the Illegal Immigration Reform and Immigrant Responsibility Act [IIRIRA],
the substantive standards are considerably ughtened for this relief. now called
"cancellation of removal," INA § 240A(b)(1). The alien must show ten years of
continuous physical presence and good moral character, and must demonstrate that
removal would cause "exceptional and extremely unusual hardship" to a lewfully resident
or U.S. citizen spouse, parent, or child. Hardship to the alien alone is no longer relevant.
Those tighter standards apply, however, only to removal cases initiated on or after the
effective date of Title III-A of HRIRA, April 1, 1997. Cases initiated earlier may still be
decided under the previous seven-year suspension standard.
IIRIRA also imposed two other restrictions on this general form of relief,
however, and both have been applied to pending suspension Gases 03 well:
(1) "Stop-lime" rule. Under pre-IIRIRA suspension rules, an individual
could continue accruing time toward the needed seven years after
deportation proceedings had commenced. INA & 240A(d), added by
IIRIRA, adopts à new "stop-time" rule. which requires that the requisite
period be achieved before the charging document is served. The Board of
Immigration Appeals construed IIRIRA $ 309(c)(5) as making this rule
applicable as well to all cases where the grant of suspension was not final
on the date of enactment. Multer of NJB, Int. Dec. # 3309 (BIA February
20, 1997).
(2) Annual can. INA § 240A(e) and IIRIRA 1 309(c)(7) impose an annual
cap of 4000 on the total of suspensions and adjustments plus cancellations
and adjustments in any given fiscal year, beginning with FY 97, which
began on October 1. 1996, one day after IIRIRA's enactment. This
immediate application 10 casos In the pipcline, which are still adjudicated
JUL-10-1997 08:25 TO:LEANNE SHIMABUKURO
FROM:GAYMON, D.
P.4/7
under the previous suspension rules in most respects, has caused
disruption in normal case processing in the Immigration courts because It
suddenly Imposed a quantitative limit on what had previously been a
purely qualitative determination, inescapably administered in
decentralized fashion by over 200 immigration judges. The problem has
been particularly acute because the Imposition of the cap coincided with a
higher volume of suspension applications. owing, inter alta. to
developments in long-standing class-action litigation, especially American
Baptist Churches V. Thornburgh, [ABC] (scitlement agreement reached in
1991) and to the phasing out of the Nicaraguan Review Program initiated
by the Reagan Administration
General description of the amendments
The proposed amendments are meant to eliminate any arguably retroactive
before
application of the new rules governing suspension-type relief Cases in the pipeline
The
would continue to be dooided under the old suspension rules in all respects (this includes
new
all cases previously covered by the Nicaraguan Review Program), while new, post-April
law
1, 1997, cases would be governed by the new standards adopted in IIRIRA § 240A(b),
including the stop-time rule and the annual cap. Also, In recognition of the special
took
circumstance of the persons covered by the Bush Administration's serricment of the ABC
effect
litigation in 1991, the proposed amendments apply to such persons the pre-April 1 rules.
These are. in effect, "pipeline" cases, And the amcadment specifically mendates that their
relief applications be judged under the earlier substantive standards. None of the
amendments, however, dictates that any of the affected persons shall be granted relief.
Every application for suspension or cancellation must still be considered, casc-by-case,
by an immigration judge.
Section-by-section analysis
Section 1(a). This subsection amends INA § 240A(e) so that the annual cap set
forth there applies only to cases commenced after April 1, 1997 (where the applicable
relief is cancellation of removal, with its 10 year and higher hardship requirements,
rather than suspension of deportation). The amendment exempts from the cap pre-April 1
cases (suspension cases) as well as battered spouses and children who receive
cancellation under the spocial rules of 240A(b)(2).
Section 1(b), The repeal of IIRIRA § 309(c)(7) simply makes that section
consistent with section 1(a)'s removal of the cap from pre-April I cases (because a cap
that covers suspension cases was set forth both there and in INA § 240A(e)). The repeal
of IIRIRA § 309(c)(5) makes It clear that the stop-lime rule applies only to "cancellation
of removal" relief (Initlated on or after April 1, 1997). and does not apply to suspension
cases already in the pipeline on IIRIRA's effective date.
2
002
07/08/97 TUE 17:40 FAX
197
4632
THE WHITE HOUSE
WASHINGTON
July 3, 1997
ACTION
MEMORANDUM FOR THE PRESIDENT
FROM:
SAMUEL BERGER
MARIA ECHAVESTE
JOHN HILLEY
BRUCE REED
Gfa
CHARLES RUFF
SUBJECT:
Central American Migrants
Purpose
To obtain your approval on a strategy to provide relief to
Central American migrants affected by the new immigration law.
Background
The new immigration law severely restricts the availability of
suspension of deportation -- the remedy traditionally available
to deportable aliens who have resided in the U.S. for
considerable periods of time. The law imposes more stringent
standards for suspension, arguably sets a 4,000 annual cap on the
number of suspensions and requires migrants to be in the U.S. ten
rather than seven years. The law also no longer permits time
spent in removal proceedings to count toward the residency
requirement, the so-called "stop-time" rule. In a' decision known
as NJB, the Board of Immigration Appeals (BIA) ruled that this
rule applies retroactively.
These changes dramatically reduce the number of migrants eligible
for suspension. Consequences are most profound for Central
Americans who entered the U.S. in the 1980s in response to civil
war and political persecution, particularly two groups who had
been authorized to remain in the U.S. under various special
measures:
Nicaraguans under the Nicaraguan Review Program (NRP) : The Reagan
Administration protected roughly 40,000 Nicaraguans from
deportation during the pendency of a DOJ review of their asylum
applications known as NRP. The program ended in June 1995.
ABC Guatemalans and Salvadorans: As a result of a 1990 court
settlement (known as ABC), Salvadoran and Guatemalan asylum-
PAGE:02
003
07/08/97 TUE 17:41 FAX
2
seekers who came to the U.S. in the 1980s were protected from
deportation until their asylum claims could be decided under
special adjudication procedures. The ABC class is comprised of
roughly 190,000 Salvadorans and 50,000 Guatemalans.
Under prior rules, roughly 120,000 individuals in these groups
could have obtained relief; under the nev law, only a small
fraction will be able to benefit from suspension. The change in
rules as applied to these groups has prompted criticism from
Central American leaders, human rights groups, and Members of
Congress, including prominent Republicans such as Senator Abraham
and Speaker Gingrich.
Forms of Relief
We can provide some relief to NRP and ABC class members through
administrative action. Specifically, the Attorney General has
decided to invoke her authority to review NJB, the decision
applying the stop-time rule retroactively. The Attorney General's
announcement will be applauded by Central Americans and their
governments.
Administrative steps are not available to address fully the other
harmful provisions of the law - the cap and the more stringent
standards. The most we could do would be to issue a presidential
grant of deferred enforced departure (DED) for 18 months with the
potential for further extensions. DED would protect its
beneficiaries (qualified NRP and ABC members) from deportation;
however it offers only a temporary solution, as it would not
result in naturalization or permanent resident status and could
be terminated by a future President. (DED is an inherent
Presidential foreign policy authority, which was used to provide
relief to Chinese students in 1990 after the Tiananmen incidents
and in 1992 and 1993 for Salvadorans. Here, it would be justified
by the foreign policy implications of a sudden return of
thousands of Central American migrants. The Office of Legal
Counsel is looking into whether any intervening legislation may
have circumscribed the President's authority.)
Therefore, we believe we should pursue legislative action. Our
proposal would restore ABC and NRP members to the status quo ante
- exempting them from the cap and from the new, more stringent
suspension standards. Although DED provides incomplete relief, it
allows us to protect Central Americans from deportation, at least
in the near term, and we would hold it in reserve in case the
legislative effort is unsuccessful.
PAGE:03
10:61647
004
07/08/97 TUE 17:41 FAX
3
Proposed Course of Action
After informing key Members of Congress, we would take the
following steps:
1. The Attorney General would announce her decision on NJB.
2. We would present our legislative proposal with bipartisan
congressional support and privately refer to the possibility of
DED. While key Members like Representative Lamar Smith will be
hostile to legislation, they might find it less objectionable
than DED. We would not propose a trade-off against legal
immigration numbers which Senators Abraham and Kennedy (our
strongest allies on the Hill on the issue) fear will reopen the
legal immigration debate.
3. The Administration would announce temporary steps to ensure
that any ABC or NRP member who would have qualified for
suspension under the old rules would not be deported.
4. In the absence of legislative action by the start of the
summer recess, we will come back to you with a recommendation
that you grant DED.
RECOMMENDATION
That you approve the proposed course of action.
APPROVE
DISAPPROVE
PAGE:04
UCI by yr 10:43 C72025145231 FR 00000
13:00
HQCIR
002/003
IU
P.00
ver.
3
Lemark
Smith Proposed
Nicaragum Adjustment and Central American Deportation Relief Act
Any Nicaraguan present in the United States on date of enactment (A) whose presence
was pursuant to a lawful admission after inspection by an immigration officer prior to
December 1. 1995; or (B) who otherwise entered the United States prior to December
1. 1995, and who prior to December 1, 1995 either. (1) applied for asyhm with the
INS; (2) was issued an Order to Show Cause under section 242 or 242B of the
Immigration and Nationality Act (as in effect prior to April 1, 1997). (3) was placed in
exchasion proceedings under section 236 of the Immigration and Nationality Act (as in
effect prior to April 1, 1997); (4) applied for employment authorization; (5) applied for
adjustment of status under section 245; or (6) applied for any other benefit under the
NIC
Immigration and Nationality Act may be adjusted to the status of an alien lawfully
wat, by
admitted for permanent residence if the alien makes an application for such adjustment
re/1/95
and is otherwise admissible to the United States for permanent residence. Application
must be filed by April 1, 2000. A decision by the Anorney General regarding the
eligibility of any ulien for such adjustment shall not be reviewable in any COUIL
Any Nicaraguan who entered the United States prior to December 1, 1995, but does not
meet any of conditions listed in (A) or (B)(1) through (6) above shall be eligible to
apply for parole, with employment authorization, from the Attorney General. Parole
may be granted for a period of up to 12 months, during which time the alien shall have
the burden to establish that the alien did, in fact, enter the United States prior to
December 1, 1995. If the alien meets this burden, the alien is eligible to apply for
adjustment to lawful permanent resident status under same conditions 29 above.
Any Nicaraguan who is the spouse, child, or unmarried son or daughter (provided that
such unmarried son or daughter entered the United States prior to December 1, 1995)
of an alien adjusted to lawful permanent resident status under the prior two paragraphs
shall be eligible to apply fox such adjustment.
In deportation cases pending prior to April 1, 1997, the "stop-time" rule enacted in the
deportation. 1996 Megal Immigration Reform Act will apply to any applications for suspension of
The stop-time rule will not apply to the following classes of Central Americans: (I)
Guatemalans and Salvadoraus who are members of the plaintiff class in ABC V.
Thoraburgh; (2) other Gostemalans and Salvadorans who applied for asyfum on or
before April 1, 1990, and whose claims were not adjudicated prior to April 1, 1997; (3)
the spouses and minor children (at the time of granting relief) of Guatemalans and
Salvadorans described in (1) and (2); (4) adult, unmarried sons and daughters of
Guatemalans and Salvadorans described in (1) and (2) and who have been granted
relief. 1990. provided such sons and daughters entered the United States prior to October 1,
BANC
a
16/60/01
13:01
251452145231
HQCIR
003/003
Members of these defined categories of Salvadoram and Gustemalans whose cases are
under the jurisdiction of the post-April 1 rules will have their claims for cancellation of
removal adjodicated under the more generous standard of 1 years continuous residence
to ale
and extreme hardship.
Any member of the defined classes of Guatemalans and Salvadorans who was demied
eligibility to apply for suspension of deportation or cancellation of removal due to the
time-stop rule prior to July 10, 1997, shall be eligible B petition for reopening of the
case and rehearing under the new rules established in this legislation (under time
periods specified in H.R. 2533).
The defined classes of Guatemalans and Salvadorans shall not be subject to the
numerical cap 8 suspensions of deportation and cancellations of removal. Aliens in
deportation proceedings prior to April 1. 1997, and who apply for suspension of
deportation pursuant to the special rules for battered spouses and children (former
section 244(a)(3)) also shall not be subject to the numerical cap. The numerical cap
will be clarified to state that it applies to decisions to suspend and cancel removal as
well as to decisions to adjust status after such relief has been granted.
Attorney General shall have sole discretion, with no judicial review, to determine
whether any particular alien is eligible for: the exemption from the stop-time rule; the
treatment of suspension applications under the pre-April 1 standards; the opportunity to
petition for reopening: and the exemption from the munerical cap outlined in the prior
paragraphs.
As an offset for the Guatemalans and Salvadorans who will receive adjustment as 8
result of being granted suspension of deportation or concellation of removal, the
category for admission of unskilled workers (section 203(b)(3)(A)(iii) of the INA) will
be repealed. Any alien with an approved petition for admission in this category as of
date of coactment will be eligible for admission within current limits.
Dos 20,000
INS 20,000
be. 76.000 In parely
50 Not C.A
Labor at pends. 00L
8,000 Yr New in
Ret party INS
70
"Ir- opply
#s-
33 pat
language
18
15 -
OCT 08 '97 18:46
202 224 6984
PAGE. 02
NATIONAL SECURITY COUNCIL
FAX COVER SHEET
NATIONAL
From: Rob Malley
SECURITY
To: Elena Kagan/ Leanne Shimabukuró
COUNCIL
Agency: DPC
Fax Number: 62878/67028
17th & Penn, N.W.
Date/Time:
Washington, D.C.
No. of pages to follow: 4
20504
Message: Attached is a revised version of the
Did you get a complete,
options paper -- itself a shortened version of INS'.
clear transmission? If
NSC's view is that we should seek agency positions
not, please call:
ASAP on the options and subsidiary issues. If Bruce
wants to chair a high-level meeting, our preference
(202) 456-9141
would be that it happen very soon, as our principal
(Berger) has been asking for this to move.
ACTION
MEMORANDUM FOR THE PRESIDENT
THROUGH:
THE EXECUTIVE CLERK
FROM:
SAMUEL BERGER
BRUCE REED
JOHN HILLEY
SUBJECT:
Legislative Options on Immigration Law
Purpose
To adopt a legislative strategy to address some of the harshest
provisions of the immigration law.
Background
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) severely restricts the availability of
suspension of deportation in three ways:
(1) it extends the length of time immigrants must have resided in
the U.S. to be eligible for suspension from seven to ten years
and requires a greater showing of hardship. These rules apply to
persons placed in removal proceedings after April 1, 1997;
(2) it sets a 4,000 annual cap on the total number of suspensions
that can be granted, regardless of the number of individuals
found eligible for suspension. Previously, there was no ceiling;
(3) it requires immigrants to meet the 7 (now 10) year residency
prong before being placed in removal proceedings. (Prior to the
IIRIRA, time would accrue throughout the course of proceedings.)
This "stop-time" rule applies retroactively to individuals who
were placed in proceedings prior to April 1, 1997.
The combination of these changes will dramatically reduce the
number of immigrants currently in the U.S. who will be eligible
for suspension. During your trip to Central American, you stated
that you would work with Congress to seek to alleviate the
harshest consequences of the law.
CC: Vice President
Chief of Staff
2
Persons Affected by the Law
While the suspension provisions of the IIRIRA will affect all
nationalities, its consequences will be most acutely felt by the
large number of Central Americans who entered the U.S. illegally
in the mid/late 1980s in response to civil war and large-scale
political persecution.
Nicaraguans: Approximately 40,000 Nicaraguans currently are in
deportation proceedings. The Reagan Administration protected
most of them from deportation during the pendency of a special
DoJ review of their asylum applications. That program ended in
June 1995 and the last available form of relief for Nicaraguans
is to apply for suspension of deportation. Because of the way
their cases were handled, Nicaraguans will be most severely
affected by the retroactive application of the "stop-time" rule.
Guatemalans and Salvadorans: As a result of a settlement in a
major class action lawsuit (known as ABC) that was reached in
1991, Salvadoran and Guatemalan asylum-seekers who came to the
U.S. in the 1980s were protected from deportation until their
asylum claims could be decided under special adjudication
procedures. Congress and the Executive branch also protected
Salvadorans from deportation through various programs that
expired in 1994. The ABC class is comprised of roughly 190,000
Salvadorans and 50,000 Guatemalans.
Because INS only fully put in place its special asylum procedures
on April 7, 1997, and because ABC members did not press for rapid
asylum hearings (believing that they were accruing time for
purposes of suspension), a vast majority of them still have
pending asylum applications and have yet to seek suspension of
deportation. As a result, and barring a legislative change, they
will be subject to the IIRIRA's stricter rules.
In short, absent legislative fixes, approximately 280,000 Central
Americans may eventually be subject to deportation. This could
lead to serious disruptions to families in the U.S. and threaten
the stability of Central American nations that rely heavily on
remittances from immigrants and whose labor markets could not
absorb a large number of returnees.
Congressional Sentiment
The legal modifications appear to have been motivated by the
feeling that suspension was granted too generously -- by 1996,
immigration judges were granting it to roughly 75% of applicants.
In addition, some in Congress wanted to eliminate the possibility
of an amnesty-like program for Central Americans. At the same
time, it is likely that many Members were not aware of the full
3
impact of these changes, particularly on long-standing de facto
residents such as the ABC members.
Legislative Strategy Options
Option 1: Lift Cap for Cases in Proceedings Prior to April 1.
This option would affect between 19,000 to 38,000 individuals who
would be granted suspension absent the cap. However, it would
not address the core concerns of the immigrant community or of
Central American governments because it would not assist about
215,000 ABC members not in proceedings as of April 1 (and
therefore affected by the cap and the new suspension rules), nor
would it help the 40,000 Nicaraguans affected by retroactive
application of the "stop-time" rule. This is the most modest
option which DoJ already is discussing with Members of Congress.
In the meantime, DoJ has put a hold until September 30 on
deportations of people who would have qualified but for the cap.
Option 2: Lift Cap for Cases in Proceedings Prior to April 1 and
Reverse Retroactive Application of the "Stop-Time" Rule.
This option would benefit between 38,000 and 76,000 individuals -
- essentially those helped by option 1 plus Nicaraguans affected
by retroactive application of the "stop-time" rule. It could be
justified as a fair transitional measure as the Administration
moves toward full implementation of the law. However, it would
be criticized from both sides: it would not help approximately
215,000 ABC class members not in proceedings as of April 1, and
is likely to be strongly opposed by the principal congressional
backers of the IIRIRA. Absent high-level White House efforts,
proposing this could undermine our chances on option 1.
Option 3: Lift Cap for ABC Members and Individuals in Proceedings
Prior to April 1; Reverse Retroactive Application of the "Stop-
Time" Rule for Cases in Proceedings Prior to April 1; and Apply
pre-April 1 Suspension Standards to ABC Members.
This is the broadest option and is expected to benefit roughly
119,000 individuals -- those covered by option 2 plus ABC members
who would have qualified had there been no change in the law.
This is the only option that addresses the bulk of the Central
Americans' and immigrant community's concerns. Special treatment
of ABC class members can be justified by their unique
circumstances, which includes their long presence in the U.S.
under temporary legal status and the fact that their asylum cases
were delayed while INS put in place special asylum procedures --
as a result of which they are being barred from suspension
because of legislation passed 6 years after the settlement
agreement with DoJ. The Administration also could point out that
4
these are transitional measures, and that full implementation of
the immigration law will soon follow.
However, this option is likely to generate strong opposition from
Members of Congress who will liken it to an amnesty and question
the Administration's resolve to seriously enforce the immigration
law. Moreover, it might be criticized for singling out for
special treatment Salvadorans and Guatemalans. Absent high-level
White House intervention along the lines of the final days of
debate on the 1996 bill, even proposing this option could
jeopardize the chances of options 1 or 2.
Related Issues
Two additional issues need to be resolved based on your decision
on the foregoing options:
Issue #1: Whether to temporarily stop deporting individuals who
would qualify for suspension under the option you select.
This would avoid the deportation of immigrants who may otherwise
qualify were we to reach agreement with Congress. At the same
time, the hold would not prejudge the outcome of our negotiations
with Congress as deportations could resume if and when necessary.
However, this will be criticized by some Members of Congress.
Issue #2: Whether to agree, in negotiations with the Congress, to
offset any increase in the number of suspension grants with a
reduction in legal immigration numbers.
While not our preferred option, some Members of Congress might
condition their agreement on an offset. With roughly 900,000
legal immigrants admitted per year, even the most generous option
(#3) would entail reducing that number by only slightly over 10%
or, if spread over several years, a fraction thereof.
However, any such option could be seen to conflict with the
Administration's principle of favoring legal immigrants over
those without legal status. In addition, several Members --
including Senator Abraham -- strongly oppose an offset, which
they fear might re-open debate on other legal immigration issues.
RECOMMENDATION
2
I have not discussed this with DoJ or INS at all, and therefore
do not know whether the settlement can be so read. However, DOJ
has taken the firm position that the settlement only had to do
with asylum, not with suspension -- which gives us some clue as
to where they would come out.
&
Other agaicies
2
What works on Hill
3
Requaluate Administrative peces
Doris ( DAVID Martin
GEMY ( SENT
- PSSUE OF
COUNBINATION OF OPS.
DISCUSSION MEMORANDUM
Background
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) severely restricts the availability of
suspension of deportation in three ways:
(1) it extends the length of time immigrants must have resided in
the U.S. to be eligible for suspension from seven to ten years
and requires a greater showing of hardship. These rules apply to
persons placed in removal proceedings after April 1, 1997;
(2) it sets a 4,000 annual cap on the total number of suspensions
that can be granted, regardless of the number of individuals
found eligible for suspension. Previously, there was no ceiling;
(3) it requires immigrants to meet the 7 (now 10) year residency
prong before being placed in removal proceedings. (Prior to the
IIRIRA, time would accrue throughout the course of proceedings.)
This "stop-time" rule applies retroactively to individuals who
were placed in proceedings prior to April 1, 1997.
The combination of these changes will dramatically reduce the
number of immigrants currently in the U.S. who will be eligible
for suspension. During your trip to Central American you stated
that you would work with Congress to seek to alleviate the
harshest consequences of the law.
Persons Affected by the Law
While the suspension provisions of the IIRIRA will affect all
nationalities, its consequences will be most acutely felt by the
large number of Central Americans who entered the U.S. illegally
in the mid/late 1980s in response to civil war and large-scale
political persecution.
Nicaraguans: Approximately 40,000 Nicaraguans currently are in
deportation proceedings. The Reagan Administration protected
most of them from deportation during the pendency of a special
DoJ review of their asylum applications. That program ended in
June 1995 and the last available form of relief for Nicaraguans
is to apply for suspension of deportation. Because of the way
their cases were handled, Nicaraguans will be most severely
affected by the retroactive application of the "stop-time" rule.
Guatemalans and Salvadorans: As a result of a settlement in a
major class action lawsuit (known as ABC) that was reached in
1991, Salvadoran and Guatemalan asylum-seekers who came to the
U.S. in the 1980s were protected from deportation until their
CC: Vice President
Chief of Staff
2
asylum claims could be decided under special adjudication
procedures. Congress and the Executive branch also protected
Salvadorans from deportation through various programs that
expired in 1994. The ABC class is comprised of roughly 190,000
Salvadorans and 50,000 Guatemalans.
Because INS only fully put in place its special asylum procedures
on April 7, 1997, and because ABC members did not press for rapid
what their theof
asylum hearings (believing that they were accruing time for
purposes of suspension), a majority of them still have pending
asylum applications and have yet to seek suspension of
acen
deportation. As a result, and barring a legislative change, they
will be subject to the IIRIRA's stricter rules. Others were
placed in proceedings before the accrual of seven years, and
therefore will be barred by the "stop-time" rule.
estimate of what
In short, absent legislative fixes, approximately 280,000 Central
Americans may eventually be subject to deportation. This could
lead to serious disruptions to families in the U.S. and threaten
world
the stability of Central American nations that rely heavily on
remittances from immigrants and whose labor markets could not
absorb a large number of returnees.
them?
Congressional Sentiment
The legal modifications appear to have been motivated by the
feeling that suspension was granted too generously. In addition,
some in Congress wanted to eliminate the possibility of an
amnesty-like program for Central Americans. At the same time,
many Members were not aware of the full impact of these changes,
particularly on long-standing de facto residents such as the ABC
members.
Legislative Strategy Options
Option 1: Lift Cap for Cases in Proceedings Prior to April 1.
40,000?
This option would affect between 19,000 to 38,000 individuals who
would be granted suspension absent the cap. However, it would
not address the core concerns of the immigrant community or of
Central American governments because it would not assist about
215,000 ABC members not in proceedings as of April 1 (and
therefore affected by the cap and the new suspension rules), nor
would it help the 40,000 Nicaraguans affected by retroactive
application of the "stop-time" rule. This is the most modest
option which DoJ already is discussing with Members of Congress.
Aventing still adjudicam
In the meantime, DoJ has put a hold until September 30 on
The
deportations of people who would have qualified but for the cap.
cases.
3
ACTUALLY #S
Option 2: Lift Cap for Cases in Proceedings Prior to April 1 and
Reverse Retroactive Application of the "Stop-Time" Rule.
This option would benefit between 38,000 and 76,000 individuals -
we
- essentially those helped by option 1 plus Nicaraguans and
others affected by retroactive application of the "stop-time"
this
rule. It could be justified as a fair transitional measure as
the Administration moves toward full implementation of the law.
However, it would be criticized from both sides: it would not
help approximately 215,000 ABC class members not in proceedings
as of April 1, and is likely to be strongly opposed by the
principal congressional backers of the IIRIRA. Absent high-level
White House efforts, proposing this could undermine our chances
on option 1.
Option 3: Lift Cap for ABC Members and Individuals in Proceedings
Prior to April 1; Reverse Retroactive Application of the "Stop-
Time" Rule for Cases in Proceedings Prior to April 1; and Apply
pre-April 1 Suspension Standards to ABC Members.
This is the broadest option and is expected to benefit roughly
119,000 individuals -- those covered by option 2 plus ABC members
who would have qualified had there been no change in the law.
This is the only option that addresses the bulk of the Central
Americans' and immigrant community's concerns. Special treatment
of ABC class members can be justified by their unique
circumstances, which includes their long presence in the U.S.
under temporary legal status and the fact that their asylum cases
were delayed while INS put in place special asylum procedures --
as a result of which they are being barred from suspension
because of legislation passed 6 years after the settlement
agreement with DoJ. The Administration also could point out that
these are transitional measures, and that full implementation of
the immigration law will soon follow.
However, this option is likely to generate strong opposition from
Members of Congress who will liken it to an amnesty and question
the Administration's resolve to seriously enforce the immigration
law. Moreover, it might be criticized for singling out for
special treatment Salvadorans and Guatemalans. Absent high-level
White House intervention along the lines of the final days of
debate on the 1996 bill, even proposing this option could
jeopardize the chances of options 1 or 2.
Related Issues
Two additional issues need to be resolved based on your decision
on the foregoing options:
4
Issue #1: Whether to temporarily stop deporting individuals who
would qualify for suspension under the option you select.
This would avoid the deportation of immigrants who may otherwise
qualify were we to reach agreement with Congress. At the same
time, the hold would not prejudge the outcome of our negotiations
with Congress as deportations could resume if and when necessary.
Issue #2: Whether to agree, in negotiations with the Congress, to
offset any increase in the number of suspension grants with a
reduction in legal immigration numbers.
While not our preferred option, some Members of Congress might
condition their agreement on an offset. With roughly 900,000
legal immigrants admitted per year, even the most generous option
(#3) would entail reducing that number by only slightly over 10%
or, if spread over several years a fraction thereof.
However, any such option could be seen to conflict with the
Administration's principle of favoring legal immigrants over
those without legal status.
In addition, several Members --
including Senator Abraham
strongly oppose an offset, which
they fear might re-open debate on other legal immigration issues.
addition
It would also lead to delay in
Administrative Options
of reunifying the families who present are already
ugalimmig
Immigration advocates are pressing us to take administrative
is the
steps instead of/in addition to legislative ones.
U.S.
Step #1: Temporarily Halt ABC Asylum Interviews
Pursuant to the settlement, INS began conducting new asylum
interviews of ABC members in April 1997. Interviews are
resulting in large numbers of denials and placement of aliens in
deportation proceedings -- thereby cutting off the accrual of
time for suspension/cancellation purposes. Advocates seek an
immediate, temporary halt to interviews as the Administration
considers its options, arguing that the INS waited 6 years to
schedule the interviews, only to hold them when they will cause
most harm to the aliens as a result of the new "stop time" rule.
However, a halt will be viewed by some Members as inconsistent
with INS' commitment to move forward with interviews.
Step #2: Re-interpret the Cap Provision
Advocates argue that the IIRIRA can reasonably be read to impose
a 4,000 cap or the number of adjustments of status granted
annually, not on the number of suspensions. They ask that aliens
granted suspension be placed on a wait list and permitted to
remain in the U.S. legally until a number is available for
5
adjustment of status in a subsequent fiscal year. While this
arguably is a defensible interpretation of the law, it risks
being viewed by some Members as an end-run around the cap.
Step #3: Reverse the decision applying the stop-time rule
retroactively
GET SECISION
Advocates are urging the Attorney General to reverse the Board of
Immigration Appeals decision (known as NJB) holding that the
stop-time rule applies retroactively. They argue that NJB was a
17-5 - split decision by the Board and that a reversal would be
legally justified. However, OLC has reviewed this issue and does
not believe the advocates' interpretation is defensible.
TO
XS TAKINGS SOCC ALFERENT 1
NOTE FOR ELENA KAGAN/LEANNE SHIMABUKURO
FROM :
ROB MALLEY
Subject: Administrative Steps on Suspension of Deportation
At the meeting today, the advocates strongly urged us to consider
administrative, as opposed to legislative, steps. The most
important ones they propose are:
1. That the AG reverse the NJB decision -- which held that the
rule on accrual of time for suspension purposes applied
retroactively. As you know, 5 of the 7 BIA judges on the NJB
panel dissented from the majority opinion, and some, federal
courts also have disagreed with NJB.
I have raised this with DoJ and INS in the past, and have been
told that OLC's view is that the advocates' position is not
defensible. OLC has so advised the AG. of course, the White
House could request that this be reviewed, and could inform DoJ
of its preferred policy outcome, but this is hardly likely to
yield a different result.
2. That DoJ and INS interpret the cap provision to apply to the
total number of adjustment granted per year, not the number of
suspensions/cancellations of removal. Aliens who are granted
suspension would be placed on a waiting list and permitted to
remain here legally until a number is available for adjustment in
a subsequent fiscal year.
My recollection on this one is that INS/GC thought this was not
the preferred interpretation, albeit a defensible one. At the
same time, DOJ/INS strongly believed that adopting that approach
would be viewed on the Hill (i by Smith) as an end-run around
the cap. In litigation on this issue, DOJ has opposed the
advocates' view.
The WH could ask Justice whether it the advocates' approach is
defensible and, if it is, could request that it be adopted.
However, without the other fixes that we would like (regarding
NJB and the retroactive application of the hardhsip standards for
ABC class members), this would be of limited value.
3. That DoJ interpret the ABC agreement to guarantee that
suspension claims of class members would be adjudicated under the
old rules: ABC class members would be subject to 7 year, more
lenient standard, regardless of when they were put in
proceedings.
Leanne A. Shimabukuro 07/03/97 10:36:39 AM
Record Type:
Record
To:
Maria Echaveste/WHO/EOP
CC:
Jose Cerda III/OPD/EOP
Subject: follow up on suspension issue
I wanted to get back to you on the question I raised with you yesterday. On the 4,000 cap, the
Hogan memo argues that the statute could be read to mean that we can grant an unlimited number
of suspensions but can only adjust the status of 4,000 people. Normally, once we suspend
deportation, we allow individuals to adjust to permanent resident status within a short amount of
time. My question was: what is the status of people who are suspended but are not allowed to
adjust for years? Is this better than DED status?
According to Rob Malley, it is preferable to be under "suspension" status since adjustment to
permanent resident status naturally follows, even if we make people wait for years to get it On
the other hand, DED does not necessarily result in adjustment.
This reaffirms the point you made yesterday that groups will likely prefer the legislative fix of lifting
the cap on suspensions and adjustments to granting DED administratively.
09/10/97
WED
17:32
FAX
202
456
9140
NSC DEMOCRACY
002
09/10/97
10:59
202 514 9077
DOJ
002
09/09/97
17:45
202 514 5499
OLA
002
09/09/97 TUE 11:37 FAY 202 225 3672
IMMIGRATION & CLAINS
002
Embargoed
Outline of Proposed Provisions for Legislation on Central Americans
Codify rule in N-J-B-, as decided by the Board of Immigration Appeals. Clarify that in
cases where the Anorney General terminates and initiates new procedures under the
post-IIRIRA rules, the previously-issued Order to Show Cause is void and thus, time
continues to Fun until the new Notice to Appear is issued.
Provide exception to N-J-B- rule for Salvadorans and Guatemalans in the ABC class and
for Nicaraguans who first entered the United States prior to April 1, 1990. In such
cases, the period of continuous physical presence is deemed to terminate on April 1,
1997.
For suspension of deportation applicants other than the ABC class members,
Nicaraguans. and asylees described in previous paragraph, the surierer standard of
exceptional and extremely unusual hardship B a citizen or legally-resident immediate
relative of the applicant will apply. This new requirement will be effective on the date
of enacument of these amendments.
Aggregate limitation of 4,000 is further clarified to apply to decisions to suspend/cancel
(and not only to adjustments. thus overturning adverse court decisions to this effect).
For FY 1997 only. 4,000 limitation applies to decisions 9 cancel or suspend made after
April 1, 1997. For future years. limitation can be exceeded by up to 10,000. but for
each number over 4,000, a visa must be subtracted from the following year's allotment
for diversity immigrant visas.
cc: ce: Tor / Leavine Tor Leaune
Immigration depentation
FYI.
THE PRESIDENT HAS SEEN
Eleva
THE WHITE HOUSE
07-14-97
WASHINGTON
Copied to
July 8, 1997
Berger
Echaveste
MEMORANDUM FOR THE PRESIDENT
Hilley
FROM:
PHIL CAPLAN Pal
Reed
Ruff
SUBJECT: Central American Migrants
COS
Sandy Berger, Maria Echaveste, John Hilley, Bruce Reed and Chuck Ruff recommend in the
attached memo that you approve a course of action to provide relief td Central American
migrants affected by the new immigration law. The strategy includes administrative action to be
taken by the Attorney General and proposed legislation. Executive action by you would be held
in reserve in case the legislative effort is unsuccessful. Sandy et. al. seek your approval as
soon as possible so as to permit Hill briefings on the legislation to move forward.
Background. As you know, the immigration law severely restricts the government's ability to
suspend deportation for aliens who have resided in the U.S. for considerable periods of time.
This greatly affects Central Americans who entered here in the 1980s. Two groups are most at
risk who had been authorized to stay: 1) roughly 40,000 Nicaraguans who the Reagan
Administration protected from deportation while DOJ reviewed their asylum applications - the
program ended in June 1995;2) roughly 190,000 Salvadorans and 50,000 Guatemalans who were
protected from deportation under a court settlement. Under the old rules, roughly 120,000 in
these groups qualified for suspension. Under the new rules, only a fraction will be eligible.
Course of action. Any long-term solution to the problem will require legislation, but there are
some administrative actions we can take now. Administrative: the Attorney General will: (i)
announce temporary steps to ensure that any migrant who would havejqualified for suspension
under the old rules would not be deported; (ii) announce her review of the "stop-time" decision
by the Board of Immigration Appeals - a provision in the new law said that time spent in
deportation proceedings did not count towards the residency requirement and the Board ruled
that the provision applied retroactively. The AG's review of the decision will be applauded.
Legislation: Our proposal, which will very likely receive bipartisan support, will restore
qualified migrants to the status they had before the new law. Executive action (to be held in
reserve): you have available to you a presidential grant of deferred enforced departure (DED).
DED would protect qualified migrants from deportation, but it is onlyia temporary solution (18
months) and does not offer naturalization or permanent resident status and could be revoked by a
future President. In 1993, you used DED for a portion of the Salvadorans, in the hope that many
would eventually qualify for a change in status, but the new law changed the landscape.
Your advisors recommend that you authorize the administrative steps|and legislative effort, but
hold DED in reserve to see if the legislation moves by the August recess. DED will be mentioned
privately to some Members. Rahm concurs with the recommended course of action.
Agree
Disagree
Discuss
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ACTION
MEMORANDUM FOR THE PRESIDENT
THROUGH:
THE EXECUTIVE CLERK
FROM:
SAMUEL BERGER
BRUCE REED
JOHN HILLEY
SUBJECT:
Legislative Options on Immigration Law
Purpose
To adopt a legislative strategy to address some of the harshest
provisions of the immigration law.
Background
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) severely restricts the availability of
suspension of deportation in three ways:
(1) it extends the length of time immigrants must have resided in
the U.S. to be eligible for suspension from seven to ten years
and requires a greater showing of hardship. These rules apply to
persons placed in removal proceedings after April 1, 1997;
(2) it sets a 4,000 annual cap on the total number of suspensions
that can be granted, regardless of the number of individuals
found eligible for suspension. Previously, there was no ceiling;
(3) it requires immigrants to meet the 7 (now 10) year residency
prong before being placed in removal proceedings. (Prior to the
IIRIRA, time would accrue throughout the course of proceedings.)
This "stop-time" rule applies retroactively to individuals who
were placed in proceedings prior to April 1, 1997.
The combination of these changes will dramatically reduce the
number of immigrants currently in the U.S. who will be eligible
for suspension. During your trip to Central American, you stated
that you would work with Congress to seek to alleviate the
harshest consequences of the law.
CC: Vice President
Chief of Staff
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Persons Affected by the Law
While the suspension provisions of the IIRIRA will affect all
nationalities, its consequences will be most acutely felt by the
large number of Central Americans who entered the U.S. illegally
in the mid/late 1980s in response to civil war and large-scale
political persecution.
Nicaraguans: Approximately 40,000 Nicaraguans currently are in
deportation proceedings. The Reagan Administration protected
most of them from deportation during the pendency of a special
DoJ review of their asylum applications. That program ended in
June 1995 and the last available form of relief for Nicaraguans
is to apply for suspension of deportation. Because of the way
their cases were handled, Nicaraguans will be most severely
affected by the retroactive application of the "stop-time" rule.
Guatemalans and Salvadorans: As a result of a settlement in a
major class action lawsuit (known as ABC) that was reached in
1991, Salvadoran and Guatemalan asylum-seekers who came to the
U.S. in the 1980s were protected from deportation until their
asylum claims could be decided under special adjudication
procedures. Congress and the Executive branch also protected
Salvadorans from deportation through various programs that
expired in 1994. The ABC class is comprised of roughly 190,000
Salvadorans and 50,000 Guatemalans.
Because INS only fully put in place its special asylum procedures
on April 7, 1997, and because ABC members did not press for rapid
asylum hearings (believing that they were accruing time for
purposes of suspension), a vast majority of them still have
pending asylum applications and have yet to seek suspension of
deportation. As a result, and barring a legislative change, they
will be subject to the IIRIRA's stricter rules.
In short, absent legislative fixes, approximately 280,000 Central
Americans may eventually be subject to deportation. This could
lead to serious disruptions to families in the U.S. and threaten
the stability of Central American nations that rely heavily on
remittances from immigrants and whose labor markets could not
absorb a large number of returnees.
Congressional Sentiment
The legal modifications appear to have been motivated by the
feeling that suspension was granted too generously -- by 1996,
immigration judges were granting it to roughly 75% of applicants.
In addition, some in Congress wanted to eliminate the possibility
of an amnesty-like program for Central Americans. At the same
time, it is likely that many Members were not aware of the full
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impact of these changes, particularly on long-standing de facto
residents such as the ABC members.
Legislative Strategy Options
Option 1: Lift Cap for Cases in Proceedings Prior to April 1.
This option would affect between 19,000 to 38,000 individuals who
would be granted suspension absent the cap. However, it would
not address the core concerns of the immigrant community or of
Central American governments because it would not assist about
215,000 ABC members not in proceedings as of April 1 (and
therefore affected by the cap and the new suspension rules), nor
would it help the 40,000 Nicaraguans affected by retroactive
application of the "stop-time" rule. This is the most modest
option which DoJ already is discussing with Members of Congress.
In the meantime, DoJ has put a hold until September 30 on
deportations of people who would have qualified but for the cap.
Option 2: Lift Cap for Cases in Proceedings Prior to April 1 and
Reverse Retroactive Application of the "Stop-Time" Rule.
This option would benefit between 38,000 and 76,000 individuals -
- essentially those helped by option 1 plus Nicaraguans affected
by retroactive application of the "stop-time" rule. It could be
justified as a fair transitional measure as the Administration
moves toward full implementation of the law. However, it would
be criticized from both sides: it would not help approximately
215,000 ABC class members not in proceedings as of April 1, and
is likely to be strongly opposed by the principal congressional
backers of the IIRIRA. Absent high-level White House efforts,
proposing this could undermine our chances on option 1.
Option 3: Lift Cap for ABC Members and Individuals in Proceedings
Prior to April 1; Reverse Retroactive Application of the "stop-
Time" Rule for Cases in Proceedings Prior to April 1; and Apply
pre-April 1 Suspension Standards to ABC Members.
This is the broadest option and is expected to benefit roughly
119,000 individuals -- those covered by option 2 plus ABC members
who would have qualified had there been no change in the law.
This is the only option that addresses the bulk of the Central
Americans' and immigrant community's concerns. Special treatment
of ABC class members can be justified by their unique.
circumstances, which includes their long presence in the U.S.
under temporary legal status and the fact that their asylum cases
were delayed while INS put in place special asylum procedures --
as a result of which they are being barred from suspension
because of legislation passed 6 years after the settlement
agreement with DoJ. The Administration also could point out that
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these are transitional measures, and that full implementation of
the immigration law will soon follow.
However, this option is likely to generate strong opposition from
Members of Congress who will liken it to an amnesty and question
the Administration's resolve to seriously enforce the immigration
law. Moreover, it might be criticized for singling out for
special treatment Salvadorans and Guatemalans. Absent high-level
White House intervention along the lines of the final days of
debate on the 1996 bill, even proposing this option could
jeopardize the chances of options 1 or 2.
Related Issues
Two additional issues need to be resolved based on your decision
on the foregoing options:
Issue #1: Whether to temporarily stop deporting individuals who
would qualify for suspension under the option you select.
This would avoid the deportation of immigrants who may otherwise
qualify were We to reach agreement with Congress. At the same
time, the hold would not prejudge the outcome of our negotiations
with Congress as deportations could resume if and when necessary.
However, this will be criticized by some Members of Congress.
Issue #2: Whether to agree, in negotiations with the Congress, to
offset any increase in the number of suspension grants with a
reduction in legal immigration numbers.
While not our preferred option, some Members of Congress might
condition their agreement on an offset. With roughly 900,000
legal immigrants admitted per year, even the most generous option
(#3) would entail reducing that number by only slightly over 10%
or, if spread over several years, a fraction thereof.
However, any such option could be seen to conflict with the
Administration's principle of favoring legal immigrants over
those without legal status. In addition, several Members --
including Senator Abraham -- strongly oppose an offset, which
they fear might re-open debate on other legal immigration issues.
RECOMMENDATION
MEMORANDUM
May 22, 1997
OPTIONS FOR AVOIDING MASS REPATRIATION AND DEPORTATION OF CENTRAL
AMERICANS AND MINIMIZING HARDSHIPS TO ABC CLASS MEMBERS
This memorandum addresses issues specific to Salvadoran and Guatemalan nationals who are members
to the class in the lawsuit American Baptist Churches et al V. Thornberg (the ABC class). The
proposed policy solutions may also be relevant to issues concerning other nationalities.
I.
Background
The INS commenced asylum interviews for the ABC class on April 7, 1997. Sadly, when the litigation
was settled, neither the attorneys for the ABC class nor the attorneys for the US government
anticipated the severe limitations on relief contained in the 1996 Illegal Immigration Reform and
Immigrant Responsibility Act ("the Act").
Prior to the new Act, most class members who were not granted asylum would have a significant
possibility of obtaining residency by a grant of suspension of deportation. Suspension is a remedy that
an Immigration Judge can grant in immigration proceedings and which results in a grant of permanent
residency. To qualify, an applicant must prove: (1) seven years of residency; (2) good moral
character; and (3) that deportation would result in extreme hardship to the applicant or to his US
citizen or permanent resident family members.
The majority of ABC class members not only have seven years in this country but have also established
strong ties to family, friends, and work in the United States. In sum, thousands in the class expected to
legalize by grants of suspension in immigration court.
The new immigration act eliminates suspension of deportation for all aliens placed in proceedings on or
after April 1, 1997. Instead of suspension, the Act creates a new remedy called "cancellation of
removal." Like suspension, it empowers an immigration judge to grant permanent residency. But its
requirements are nearly impossible to meet. These requirements include: (1) ten years of residency;
(2) good moral character; and (3) that a US citizen or lawful permanent resident parent, spouse or
child of the applicant will suffer extreme and exceptional hardship. The hardship to the applicant is no
longer relevant!
Many ABC class members are members of families where the entire family applied for asylum. Thus,
in many cases no member of the family can meet the requirement of having a legalized family member.
Furthermore, a significant number of applicants are young adults orphaned or abandoned in the war.
These young adults, regardless of their achievements here and the traumas they have overcome, cannot
qualify for relief since they have no citizen or permanent resident qualifying family members. Finally,
many ABC applicants entered the United States between 1988 and 1990, and thus will not have ten
year's residence when their cases enter the court.
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The new Act contains other restrictions as well. The first concerns limitations on accruing years of
residency to qualify for suspension or cancellation of removal. The new Act provides in Section
309(c)(5) that an applicant stops accruing the requisite seven or ten years when the applicant is served
with a Notice to Appear, the document which commences immigration proceedings and which replaces
the former Order to Show Cause ("OSC").
When the INS denies asylum to an ABC class member, the INS will then serve the applicant with a
Notice to Appear, which charges deportability and notifies the applicant of a court date. However, a
substantial percentage of ABC class members were previously in immigration proceedings and have
old OSCs. These individuals will almost certainly be ineligible for suspension or cancellation because
under the Board of Immigration Appeal's NJB decision, their old OSC could stop them from accruing
the requisite time in this country. For instance, an individual who entered this country in 1983 seeking
asylum and who was denied asylum (wrongly) that year by the INS will have an OSC dated 1983. If
this individual is now denied asylum at his ABC interview and placed in deportation proceedings, then,
instead of being credited for 14 years of residency, the NJB decision would credit only the years he
lived here up to 1983.
About twenty-five percent of ABC class members were already in proceedings and thus have old OSCs
issued before the accrual of seven years. These individuals could all be deemed ineligible for relief. In
addition, nearly all Salvadoran ABC class members had OSCs issued to them in 1992, as a condition of
obtaining Temporary Protective Status. Thus, a huge percentage of the class with old OSCs would be
barred from applying for suspension or cancellation.
Finally, the new Act contains a provision that the INS contends limits grants of suspension or
cancellation of removal to 4,000 per fiscal year. In February 1997, the chief immigration judge ordered
all immigration judges to stop granting suspension because the 4,000 limit was nearly reached. The
language in the Act does not make clear what happens to other suspension/cancellation applicants once
the 4,000 limit is reached. Advocates for immigrants hope that the INS will decide that once the limit
is reached, the judges can still grant suspension with the understanding that the grant recipient must
wait to adjust status until there are sufficient numbers available in a subsequent fiscal year. The INS
could enact regulations specifying that an alien granted suspension in one fiscal year be granted
temporary legal status and placed on a waiting list for adjustment whenever a visa number is available.
That approach is entirely consistent with the wording of the statue.
II.
SUGGESTED ADMINISTRATIVE STRATEGIES TO PROTECT THE ABC CLASS
A.
Halt ABC Asylum Interviews.
There should be an immediate halt to ABC asylum interviews while the Administration considers its
options. Interviews began in early April and are continuing. The scheduling of interviews is causing
confusion and fear, resulting in individuals failing to appear if they do not receive or do not understand
the interview notices, and foreclosing the Administration from changing the procedures or standards
governing the asylum interview process. There is no bar to deferring ABC interviews while the
Administration and Congress consider various options.
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B.
Grant TPS Status.
Salvadorans and Guatemalans in the US should be given TPS under INA § 244 (or some similar status
that provides them with employment authorization and prohibits their deportation) while the
Administration considers a longer term solution.
C.
Interpret the ABC Agreement to Guarantee Class Members the Right to Seek
Suspension of Deportation in Immigration Court.
1.
The INS can and should interpret the ABC agreement to guarantee class members the right to
seek suspension without regard to the recent changes in the law. ABC class members should be
allowed to apply for suspension under the standards in effect when the settlement was formally
approved in 1991. In responding to a Petition for Rulemaking submitted by advocates of the class, the
Justice Department reassured class members in 1996 that they could seek suspension in immigration
court. In reliance on this promise, class members did not file suit in federal court against the INS to
compel it to expedite ABC interviews prior to the effective date of the new Act. In view of this
promise and other equitable factors, ABC class members should not be subject to the provisions
concerning suspension of deportation or cancellation of removal contained in the new Act.
2.
The Justice Department should adopt a regulation that allows suspension-of-deportation and
cancellation-of-removal applications to be adjudicated administratively by the INS. Currently, only
immigration Judges can adjudicate suspension applications. As a result, aliens must be placed into
deportation or removal proceedings to apply. That unnecessarily burdens the immigration courts and
delays the process. Cases that can be granted by the INS could be diverted from the courts. The
jurisdiction of the immigration Judges would be preserved for aliens whose cases are denied
administratively or who did not apply to the INS. (This is analogous to the existing procedures
governing asylum applications).
D.
The Attorney General Should Resolve Suspension and Cancellation Issues Under the
New Act In a Just Manner Consistent With the President's Statements.
1.
The OSC Issue.
The Attorney General should order that the NJB decision does not apply to ABC class members.
Alternatively, the Attorney General should reverse BIA and find that § 309(c)(5) applies only to
Notices to Appear issued after April 1, 1997, and to Orders To Show Cause issued before April 1,
1997, but not served until after April 1, 1997. This interpretation gives full meaning to all of the terms
of the new Act,
2.
The 4,000 Cap.
The INS' interpretation that Section 309(c)(7) imposes a 4,000 per year cap on suspension and
cancellation of removal will be a severe obstacle for ABC class members. Like other provisions of the
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new law, it should not be applied retroactively to ABC class members. In addition, the Attorney
General should interpret the statute as imposing only a limit on granting adjustment of status, not on
granting suspension. Aliens who are granted suspension should be placed on a "wait list" and
permitted to remain here legally with work authorization until a number is available for adjustment in a
subsequent fiscal year. The Attorney General should also rule that the 4,000 limit does not apply to
cases commenced prior to April 1, 1997.
E.
The INS Should Apply Specific Hardship Standards for ABC Class Members Applying
for Suspension.
The INS should adopt standards to implement the eligibility criteria for suspension of deportation
under the pre-1996 law. ABC class members who establish 7 years of residence should be deemed to
satisfy the "extreme hardship" and good moral character requirements for suspension unless they have
been convicted of disqualifying criminal offenses. The unique circumstances of class members and their
long-standing ties to the United States should cause the Attorney General to issue regulations or
guidelines that class members who otherwise qualify for suspension will satisfy the extreme hardship
test. This will allow expeditious adjudication of suspension claims without unduly burdening the
immigration court.
In the event that ABC class members are required to establish eligibility under the new cancellation of
removal provision of the new Act, the Attorney General should issue regulations or guidelines that the
US citizen or lawful permanent resident family member of an ABC class member will suffer extreme
and exceptional hardship from the class member's removal.
F.
The INS Should Adopt a Policy of Following Matter of Chen in Adjudicating ABC Class
Members Asylum Claims.
In Matter of Chen, the Board of Immigration Appeals found that past persecution alone can be
sufficient to establish an asylum claim based on the degree of persecution and humanitarian concerns.
Under Matter of Chen, once an applicant establishes past persecution, a presumption arises that there is
a threat of future persecution. The INS can rebut this presumption by demonstrating a change in
country conditions. The INS should train its officers that the history of the ABC class is a compelling
humanitarian concern that warrants grants of asylum based on past persecution, even when there is no
showing of a current threat of persecution.
G.
Through Regulations, INS Should Institute a Policy Similar to What it Previously
Did Under the Nicaraguan Review Program for Beneficiaries of Approved Visa
Petitions.
1.
The policy should be to provide temporary legal status to ABC class members who are the
beneficiaries of approved visa petitions who are waiting for current priority dates. This regulation
would protect Central America from economic and political instability, and help unify families
already in the United States.
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2.
The INS should adopt a rule or policy that class members' presence in the US does not
constitute "unlawful" presence within the meaning of the new 3 & 10 year bars under § 212(a)(9).
Absent such a policy, a class member who is denied asylum may be deemed to have been here
unlawfully for many years and thereby be barred from the US fro three or ten years even if he or
she has developed an independent basis for obtaining legal status.
3.
If an ABC member does not become subject to these bars (i.e. if adjustment program not
continued), then he or she should be considered presumptively eligible for the waiver under
extreme hardship. It would be extreme hardship for ABC members to return home for that period
of time given that most fled their countries years and years ago to avoid or flee from actual
persecution. All ties they have are now in this country.
H.
The INS Should Adopt a Policy or Rule That It Will Stipulate to Reopen the
Deportation Order of Any Class Member Who Is Eligible for Adjustment of Status.
Many class members are eligible for immigrant visas independent of their ABC status. These
individuals should be allowed to obtain their permanent resident status through "adjustment of
status" without having to leave the US. For those who are subject to deportation orders,
adjustment is possible only if their case is first "reopened." Such reopening has been needlessly
opposed by the INS.
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