INS Softens its Position on Some Criminal Aliens
July 28, 2000

Immigration laws enacted in 1996 practically wiped out the rights of permanent resident aliens to remain in the U.S. following the INS’ initiation of deportation proceedings because of a criminal conviction, including some misdemeanors. As recently touched on in this column and other local and national media, the hardships long time U.S. residents and their families are being forced to endure as a result of the draconian 1996 legislation have been significant. In a sign the Clinton administration favors the restoration of at least some of the rights taken away by the 1996 legislation, the U.S. Immigration & Naturalization Service has proposed regulations to once again allow family ties and hardships to be taken into account in certain cases of criminal aliens facing deportation.

Prior to the 1996 legislation, a long time U.S. immigrant who was convicted of a “deportable” offense could at least have a chance to be spared from deportation and remain in the U.S.. With the presentation of proof of an immigrant’s rehabilitation, family ties, family hardships and community contributions, an Immigration Judge could decide to grant relief from deportation (known as “212(c) relief”) and terminate proceedings. In essence, a fairly independent decision-maker had the last word in balancing society’s need to deport dangerous individuals against the tragedy the immigrant and his family would experience if the deportation took place.

In proposed regulations, the INS seeks to restore 212(c) relief to individuals who were already in deportation proceedings at the time the 1996 legislation went into effect. By now however, many of the affected individuals most likely are no longer in the U.S. (having been deported) since the language of the 1996 law allowed for a retroactive application to individuals in proceedings at that time. However, still many with the resources and desire to fight their deportation have remained in the U.S. while their cases are on appeal, although they have already been the subject of an order of deportation by an Immigration Judge. Now with the enactment of the proposed regulations, this latter group of immigrants will get a reprieve.

Several factors have led the INS to propose these new regulations. First, the legal appeals filed on behalf of many of those ordered deported have resulted in federal court action to strike the retroactive application of the 1996 law on constitutional grounds. Thus, the proposed regulations seek to fix the law so as to protect the due process rights seen as infringed upon by various courts of federal courts of appeal and place it in an acceptable constitutional framework. Second, the INS’ action can be seen as a signal to the U.S. Congress to take steps to reverse field on its drastic 1996 legislation.

Clearly, the proposed INS regulations effect a relatively small segment of the immigrant population facing deportation because of a criminal conviction. Those placed in deportation/removal proceedings following the enactment of the 1996 law will not be able to avail themselves of the proposed relief, even those whose criminal convictions may taken place prior to 1996. So yes, the law at issue is still being retroactively applied, again, except for those who were already facing deportation when the law was enacted in April of 1996. The discussion Congress now needs to engage in is how far it will go in taking the lead from the INS in restoring the rights of criminal aliens – a most politically incorrect cause, except for those families who stand to lose a loved one.