The Clinton Administration has taken steps to ensure a “fair and equitable” transition to the new immigration law for persons in deportation cases pending prior to April 1, 1997. Prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), a form of relief from deportation known as “suspension of deportation” was available to persons in the US continuously for seven years, who had shown good moral character and who could show that deportation would result in “extreme hardship.” Time counted toward the seven year period could be met even after deportation proceedings began.
Under IIRAIRA, suspension of deportation is now called “cancellation of removal.” One of the changes in the law is that the period of continuous residence now ends at the point the alien is served with a “notice to appear.” Time spent in deportation proceedings would not count. “Notice to Appear” is a new term under IIRAIRA. Immigration advocates have argued that since no Notices to Appear were issued prior to enactment of IIRAIRA, the new continuous residency rule would not apply to persons already in deportation proceedings.
A recent Board of Immigration Appeals court decision, Matter of NJB, Int. held that “notice to appear” is synonymous with “order to show cause,” the form of hearing notice used prior to IIRAIRA. The BIA held that the rule applied retroactively and even orders to show cause issued many years ago would stop time counting toward the seven year continuous residence requirement.
On July 10, 1997, Attorney General Janet Reno vacated the NJB decision and announced that she would review the issue. Reno now has the option of issuing her own opinion on the applicability of the stop-time rule. The effect of Reno’s decision means that the NJB decision will be treated as if it had never been issued. Each Immigration Judge or Court of Appeals judge can render their own interpretation. Some immigration judges hold up making decisions on pre-April 1, 1997 cases until Attorney General Reno or the Congress clarifies the law. Other judges could interpret the law liberally and continue to count time toward seven years for pending cases.
On July 25th, the Clinton Administration submitted to Congress the “Immigration Reform Transition Act of 1997” which seeks to formally resolve the questions of NJB as well as address other issues affecting pending deportation matters. The proposed law would
- make the stop-time rule of IIRAIRA not apply to cases pending prior to April 1, 1997;
- hold that individuals in removal proceedings who are covered by the American Baptist Churches v. Thornburgh (ABC) settlement and certain other Central Americans such as Nicaraguans who entered under the Nicaraguan Review Program between 1985 and 1995 as well as certain others with long-pending asylum claims would be covered by the pre-IIRAIRA suspension of deportation standards;
- grant persons with final orders of deportation 180 days to file a motion to reopen their proceedings to request suspension (normally, such motions must be filed within 90 days)
- the annual limit of 4,000 cancellations of removal, a new provision in IIRAIRA, will not apply to cases pending prior to April 1, 1997
- the annual limit of 4,000 cancellations of removal will not apply to future cases involving battered spouses and children.
While the legislation is welcome by pro-immigrant advocates, many were disappointed that the bill still contains provisions limiting the authority of judges to review government actions. We will report on progress on this legislation in the Legislative Update section of future newsletters.
In the mean time, the INS has issued special interim criteria to deal with the NJB decision. The INS will join in any motion to reopen a suspension of deportation case covered by the NJB case. The INS does reserve, however, the right to contest the suspension of deportation request at a later stage.
The INS will issue temporary stays of deportation on persons ordered deported under the NJB stop-time standard. Persons covered by the temporary stay also cannot be taken into custody.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.