In 1996, members of the U.S. Congress felt they had to toughen immigration law in order to keep illegal immigrants from entering the United States. This short-lived backlash against illegal immigrants led to the passage of three laws, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Anti-Terrorist and Effective Death Penalty Act (AEDPA), and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).

These three laws, dealing with immigration, welfare and anti-terrorism, together have harmed immigrants, American families and people of ethnic minorities instead of solving the real problems that the laws intended.

Among other problems, they stripped legal immigrant taxpayers of the security of welfare as well as their rights to due process of law. From the time these laws were enacted, numerous pro-immigration campaigns have captured a bipartisan majority in Congress, which along with the administration have worked to correct piece by piece the destructive provisions of the 1996 laws. This publication summarizes some pending legislation that attempts to re-establish the constitutional principle that immigrants have rights.

The Refugee Protection Act (H.R. 4074/S. 1311)

Refugees and asylum seekers entering the United States face many difficulties and prejudices when they arrive at airports or border crossings. Some of these new arrivals are fleeing persecution, torture, even death, because of who they are and what they believe. A procedure in IIRIRA known as expedited removal gives INS inspectors at airports or other ports of entry unprecedented power to make on-the-spot decisions to summarily remove persons who arrive in the U.S. without travel documents, or whose documents they suspect were improperly obtained. INS inspectors now have the power to make decisions previously entrusted to immigration judges.

While asylum seekers are not supposed to be deported under expedited removal, the procedures are lacking in procedural safeguards and mistaken deportations are inevitable. Moreover, under IIRIRA, individuals excluded in this manner are subsequently inadmissible for a period of at least five years. Expedited removal does not streamline the admissions process, but merely prevents perse- cuted individuals from asserting their rights under U.S. law.

Also, the mandatory detention provision in IIRIRA gives the INS the power to detain asylum seekers for months and sometimes years before they are granted asylum, even after they have been found to have a credible fear of persecution. Held in prisons or prison-like facilities, the special needs of asylum seekers, some of whom may have been tortured or ill- treated, are often neglected.

S 1311/HR 4074, sponsored by Senators Leahy (D-VT) and Brownback (R-KS), would limit the use of expedited removal to extraordinary immigration emergencies, and only to asylum seekers arriving from the country that gave rise to the emergency situation.

(Immigration emergencies, defined as the arrival or imminent arrival of asylum seekers who by their numbers or circumstances would substantially exceed the U.S. ability to inspect or examine them, can only be declared by the Attorney General.)

The bill provides that only im- migration judges can make decisions on admissibility if an extraordinary migration situation should occur.

In addition, S 1311/HR 4074:

• Provides procedural protections when emergency expedited removal is used, to minimize the chances of wrongly turning refugees away,
• Clarifies the law to make it clear that while asylum seekers may be detained when needed, detention is not mandatory, and it is the policy of the U.S. to parole asylum seekers while their claims are reviewed,
• Promotes alternatives to detention, and provides for review by a judge of a decision to detain an asylum seeker who requests parole,
• Ensures full access to religious services, materials, and religious counseling appropriate to detained asylum seekers' religious beliefs,
• Eliminates the current one-year time limit on applying for asylum,
• Eliminates the asylee adjustment cap that places a limit of 10,000 asylees for each fiscal year whose status may be adjusted to that of a lawful permanent resident.

For more detail, see the Jan/Feb 2002 "Washington Report to Presbyterians" Vol. 24, No.1.

Family Reunification Act

HR 1485 seeks to alleviate the hardships faced by long-term legal permanent residents and their families, under the mandatory detention and deportation provisions of the IIRIRA.

IIRIRA made deportation and detention mandatory for persons who have committed "aggravated felonies." Yet, an aggravated felony in immigration law may be neither a felony nor "aggravated," as defined in criminal law, but rather generally means a conviction that results in a sentence, but with no time served, for one year or more.

Further, mandatory deportation has been applied retroactively. It has stripped immigrants of the right to appeal to the court by demonstrating good behavior subsequent to the past crime. In some cases, individuals have been taken into custody and held in INS detention facilities or INS contracted jails for crimes they committed decades ago-even if the criminal justice system did not think their crime was serious enough to deserve a jail sentence. IIRIRA lowered the sentences and monetary amount thresholds for many of the crimes on the list of aggravated felonies, and other excludable or deportable offenses, and applied it retroactively for the purpose of deporting immigrants.

Under IIRIRA, evidence of rehabilitation, length of residency, family/community ties, the seriousness of the offense, and the question of whether deportation in a particular case would further public safety are irrelevant as a matter of law. These provisions subject any legal resident convicted of virtually any criminal offense to a "one-size- fits-all" remedy of lifetime banishment from the U.S., with no chance for a judge to determine whether such harsh punishment makes sense in a particular case.

The Family Reunification Act does not affect the scope of judicial review or the Attorney General's powers to deport or detain a person. Rather, it restores some due process of law for certain long-term and legal permanent residents once deportation hearings are underway. HR 1452 would amend the defini- tion of "aggravated felony" to agree with the definition in the Violent Crime Control and Law Enforcement Act of 1994. An aggravated felony would apply to those who were convicted of crime(s) with sentence of five years or more imprisonment. A judge would weigh the seriousness of the crime committed by the immigrant facing life exile as well as "favorable factors." Favorable factors would include five years or more of residency, evidence of rehabilitation, urgent humanitarian reasons, family and community ties. The judge's decision would be submitted to the Attorney General, who would grant cancellation of removal at his/her discretion.

The Restoration of Fairness in Immigration Act of 2002

Many provisions in HR 3894 call for the restoration of due process of law and the priority of family reunification in immigration, asylum and refugee proceedings. This is similar to provisions in the Refugee Protection Act and the Family Reunification Act. However, this bill addresses each issue raised by other legislation more comprehensively. Each of the four major provisions of HR 3894 address different categories and priorities: due process in immigration pro- ceedings, fairness in cases involving previous and minor misconduct, family reunification, and fairness in asylum and refugee proceedings.

Due Process

Under current refugee and asylum law, to qualify for asylum settlement in the U.S., a person must meet the definition of an asylee by proving that he or she has a credible fear of persecution. The asylum seeker must prove that his or her fear is based on the possibility of persecution because of his or her race, religion, membership in a social group, political opinion, or national origin.

This requirement, in addition to the expedited removal proceeding, provides that a person would be granted an asylum hearing only if his or her situation neatly fits into the five categories of credible fear of persecution. This would be problematic in cases that challenge current asylum law, such as female genital mutilation and other gender-based persecution. Since gender-based persecution is not recognized by the INS, women fleeing gender-based persecution would be denied an asylum hearing under the expedited removal proceeding.

Prior to IIRIRA, the Attorney General could exercise discretionary authority to determine when it is appropriate to detain immigrants based on a criminal offense when the people do not pose a threat to others or property and are not at risk of fleeing. The mandatory detention provisions in IIRIRA took away the discretionary authority and required detention in the case of immigrants convicted of minor offenses and asylum seekers ordered removed via expedited removal. HR 3894 would restore discretionary authority to the Attorney General in cases of individuals who pose no safety risk. If long-term detention happens, HR 3894 would require periodic review by the INS.

Family Reunification

HR 3894 would make Section 245(i) of the Immigration Nationality Act permanent, and would create special immigration accounts for the fees this provision will generate.

The Section 245(i) provision is for those eligible for permanent resi- dence based on a family relationship or job offer, and who wishes to adjust status to permanent resident without leaving the U.S. Without Section 245(i), most people who entered the U.S. without inspection, overstayed an admission, acted in violation of the terms of their status, worked without authorization… etc., would not have been eligible to adjust status in the U.S.

If an individual is eligible for permanent residence, but not eligible for adjustment of status, that person might still obtain permanent residence by leaving the U.S. and completing the process for an immigrant visa at a U.S. consulate abroad. However, if that individual had been unlawfully present in the U.S. for more than 180 days, he or she would be barred from reentering the U.S. for at least three years, and perhaps as long as 10 years.

Under Section 245(i), an eligible individual can remain in the U.S. to obtain permanent residence through adjustment of status, and thus never trigger these entry bars. Section 245(i) was passed with an October 1, 1997 sunset date. A limited continuation was authorized in 1998 to certain categories of applicants. HR 3894 will eliminate these restrictions and make Section 245(i) permanent.

On the day that Congressman Conyers Jr. (D-MI), Ranking Member of the House Judiciary Committee, introduced HR 3894, he made the following statement: "Since this nation's founding, more than 55 million immigrants from every continent have settled in the U.S. Immigrants work hard to make ends meet and pay taxes every day. They have lived in this country for decades, married U.S. citizens, and raised their U.S. citizen children. Laws that single these people out for no other reason than their status as immigrants violate their fundamental right to fair treatment. Yet, for too many years, Congress has witnessed a wave of anti-immigrant legislation, playing on our worst fears and prejudices…We grant due process rights to citizens and non-citizen alike; not out of some soft-hearted sentimentality, but because we believe that these rights form an important cornerstone to maintaining civilized society…"

Christians are obligated by the loving will of God to seek to ensure that the basic needs of persons for food, clothes, shelter, and safety are met (Matt. 25:35-40)

The 211th General Assembly (1999) of the Presbyterian Church (USA) adopted "Transformation of Churches and Society Through Encounters with New Neighbors" as the basis for the call for a new degree of engagement with immigrants, refugees, and asylum seekers at all levels of the Presbyterian Church (USA). To this end, the 211th General Assembly:

• Reaffirms the 209th General Assembly's 1997 resolution on "Welfare and Poverty" policy in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which urges presbyteries and congregations to respond to the plight of refugees and immigrants during the next year when public assistance ends, and to advocate publicly on their behalf so that their basic needs will be met.
• Advocates for the repeal of those sections of the 1996 immigration law that provide for the expedited removal of asylum seekers and immigrants without a full hearing, including the right of appeals, and urges presbyteries and session to do similar advocacy. Until these sections are repealed, the Immigration and Naturalization Service (INS) of the U.S. government should cooperate with efforts to independently monitor the way "expedited removal" is applied.
• Advocates for the repeal of those sections of the 1996 immigration law that removes review of that law and its administration from the jurisdiction of immigration judges and the federal courts, urging presbyteries and session to do similar advocacy.
• Opposes the routine use of detention as an enforcement tool in addressing common immigration violations, noting the particular hardship this puts on women and children, and urges presbyteries and session to do similar advocacy.
• Advocates for use of the credible fear standard for releasing asylum seekers from detention, and ensuring a more speedy adjudication to reduce unreasonably lengthy stays in detention, urging presbyteries and session to do similar advocacy. The INS should make sure that asylum seekers are not held in local jails, nor detained with local criminals, and that they are provided humane conditions - including adequate and appropriate food, personal treatment, medical care, prompt access to legal help, family and friends.
• Advocates for the repeal of the section of the 1996 immigration law that requires state and local governments, and publicly funded institutions and programs (such as hospitals, battered women's shelters, WIC, church feeding programs) to report undocumented persons to the INS, urging presbyteries and sessions to do similar advocacy. The 1999 General Assembly further calls on Christians who are under such reporting requirement to weigh in their conscience the claims of this requirement against the biblical injunction to shelter and welcome the stranger.
• Advocates for review of the sections of the 1996 immigration law that defined misdemeanors as felonies for purposes of deportation, and removed the possibility of an immigration judge granting a discretionary waiver from deportation based on a person's entire case, urging presbyteries and sessions to do similar advocacy.

The 211th General Assembly affirms that Christian belief demands that we make an allowance for atonement and redemption of those who have made a mistake but are working to overcome it.