PROPOSED RULE WOULD RESTORE RELIEF TO MANY IN DEPORTATION PROCEEDINGS This week the INS published a proposed rule that would address one of the most hotly contested problems created by the 1996 immigration reform laws. Before April 24, 1996, permanent residents in deportation proceedings could request a waiver of deportation, known as a section 212(c) hardship waiver after its section in the Immigration and Nationality Act. On that date, the Antiterrorism and Effective Death Penalty Act became effective. One provision of the AEDPA, section 440(d), eliminated this waiver for many permanent residents convicted of a range of criminal offenses.
Shortly thereafter, the Attorney General released an opinion, Matter of Soriano, in which she held that section 440(d) applied to all aliens in deportation proceedings, regardless of when their criminal conduct occurred, or when they had sought the waiver.
This position has been widely rejected by federal courts. Eleven of the twelve courts of appeal have heard cases dealing with the issue, and most of these have disagreed with the Attorney General. While there is little uniformity among the decisions, most courts agree that section 440(d) cannot be applied to aliens in who were in deportation proceedings before the AEDPA became effective.
Because the INS is bound by the decisions of federal courts, and because the decisions of a federal court are binding only in the area in which it has jurisdiction, there is no uniformity in the treatment of this issue. In an effort to provide uniformity, this rule has been proposed. Under the proposed rule, the INS would take the position that section 440(d) will not be applied to aliens who were in deportation proceedings before it became effective.
The proposed rule also includes a mechanism by which aliens who were denied a 212(c) waiver because of the INS’s position can reopen their case. To be eligible to apply for reopening under the proposed rule, the alien must meet the following requirements: · have been placed in deportation proceedings before April 24, 1996, · be subject to a final order of deportation, · be eligible for section 212(c) relief, and, · have applied for and been denied a waiver because of the Soriano decision, or · did not apply for a waiver because of the Soriano decision The rule will not allow those whose requests for a section 212(c) waiver which was denied on the merits to reopen their case. Also, it would not allow aliens who were deported and are either outside the US or have returned illegally to reopen.
This proposed rule, while not addressing all of the concerns of immigration advocates, represents a significant change in the INS’s position.
Comments on the proposal will be accepted until August 17, 2000. The should be sent to Charles Adkins-Branch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041. The text of the proposed rule is available online at http://frwebgate.access.gpo.gov/cgi-moses/getdoc.cgi?dbname=2000_register&docid=00-18210-filed.pdf
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