THE Democrats constantly talk about comprehensive immigration reform, including a pathway to legalization for the approximate 11 million undocumented immigrants in the U.S. They criticize President Trump for his harsh policies on immigration enforcement. While I’m fully in favor of comprehensive immigration reform, as a starting point, the Democrats could at least eliminate or repeal some of the harshest immigration laws ever enacted, which were signed into law by Bill Clinton when he was president. The effects of those laws are still being felt today and are preventing or restricting immigrants’ ability to legalize their status.
In 1996, Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). As a refresher course, or to enlighten people, here are some changes brought about by IIRAIRA:
• Eliminating children as a basis for being granted a fraud waiver. Before IIRAIRA, if a person had a U.S. citizen or LPR child, they were automatically granted a fraud waiver. Now, hardship on a child is not a factor and does not matter in connection with a waiver.
• Adding “extreme hardship” as a requirement for a fraud waiver. Before IIRAIRA, there was no requirement of demonstrating extreme hardship on qualifying relatives. If a person had a parent, spouse, or child who was a citizen or a green card holder, or if the fraud occurred over 10 years ago, the fraud waiver was approvable. No showing of extreme hardship was required. Now, the qualifying relatives demonstrate extreme hardship and fraud stays on your record for life.
• Hardship on the alien does not matter. Before IIRAIRA, hardship on the alien himself (or his children) could be considered. After Clinton signed IIRAIRA, hardship on the alien is no longer considered.
• Creation of the 3/10 year bar! Before IIRAIRA, there was no 3/10 year bar. If a person was not eligible to adjust status in the U.S., the person simply departed the U.S. and was processed for his immigrant visa in his home country, and then returned to the U.S. without any issues. With Clinton’s 3/10 year bar, those same people were suddenly “trapped” in the U.S. They could not get a green card in the U.S., and if they departed the U.S., they could not return for 3 or 10 years, unless granted a waiver from abroad. Pres. Obama’s executive actions for provisional waiver and expanded provisional waiver were an attempt to get around Clinton’s 3/10 year bar.
• Creating a lifetime ban if a person claims to be a citizen to their employer. Before Clinton’s IIRAIRA, false claims to U.S. citizenship was NOT a lifetime ban. It was regular fraud, with a fraud waiver available. Moreover, “false claim to citizenship” applied only if the person claimed to be a citizen to a GOVERNMENT OFFICIAL. IIRAIRA made it a permanent/lifetime ban if a person claimed to be a citizen even to his employer. No waiver is available.
• No judicial review of USCIS “discretionary” decisions. If USCIS denies a person’s petition, application, or waiver, “as a matter of discretion”, the person cannot seek court review of that discretionary decision/denial. Before IIRAIRA, it was possible to have court oversight and review of USCIS discretionary denials. Some discretionary decisions/denials include whether a person has demonstrated “extreme hardship” in connection with fraud waivers, or other forms of relief that required USCIS discretion. Many people who were turned down by USCIS and sought court assistance, find their cases are dismissed for “lack of jurisdiction”, as the denial involved a case of USCIS exercising “discretion”.
As stated above, I am for comprehensive immigration reform. I am also glad the Democrats are “pro-immigrants.” I also understand that comprehensive immigration reform may be a long and arduous process. So, could the Democrats at least attempt to neutralize some laws signed by Clinton?
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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