Article 2003-2-9
Bush's Rule of General Applicability - are you next?
Part I & II
(Part I)
Are we ready for a return to 1950's America? That seems to be where
we are headed, especially in the field of immigration. Mr. Bush's
hawkish stance-America flexing its muscles internationally, his
disdain for the environment, catering to big business, opposition
to affirmative action, and restrictionist immigration policies all
point in that direction. In recent months, we have been treated
to a series of Administration moves in the field of immigration
that have made our heads spin. It is now becoming apparent that
the events of 9/11 are being used as cover to justify deep restrictions
on immigration in this country and that Mr. Bush is not a friend
of immigration -- he only appears to desire its use as a vehicle
to his reelection in 2004. It appears that he and his Congress will
give lip service to immigrants' rights, and attempt to craft some
legislation for the main benefit of Hispanics before his election
so he can receive the support of the Hispanic population in the
United States. He has already begun the pandering process by appointing
a Hispanic, Michael Garcia, as the Acting INS Commissioner. Republican
strategists are aware that Mr. Bush has almost no support among
the blacks, but that he attracted over 30% of the Hispanic vote
in the last election, and that Hispanics have displaced blacks as
the largest minority in the country.
The Bush Administration
has twice in the past three months taken specific situations and
crafted restrictive rules of general applicability for all immigrants.
In response to the illegal landing of 214 Haitians in the state
of Florida on October 29, 2002 with attendant cries by human rights
groups to Gov. Jeb Bush and President Bush to release the Haitians
and put them on the same footing as the Cubans, the Bush administration
promulgated a new regulation on November 13, 2002, that all individuals
coming to the United States by sea and not entering through a port
of entry with the principal exception of Cubans would be placed
in expedited removal proceedings and be detained for the duration
of all immigration proceedings. In addition, this stigma of expedited
removal remains for a period of 2 years following their dates of
entry to the U.S. The rule applies to all entries from November
13, 2002 onwards. The exception for Cubans is another example of
pandering to a special interest group for votes as Mr. Bush was
elected in 2000 largely because of Cuban-American votes in Florida.
Three major questions
are presented by this regulation: First, will the INS (and its successors
the Bureau of Citizenship and Immigration Services and Bureau of
Border Security) allow such individuals to adjust status to permanent
residence in the United States if they have grounds to do so and
file an application within two years of the date of entry, or will
the agency place such individuals under expedited removal proceedings
when they show up for interview? Second, what level of proof will
the government require individuals to present to prove their actual
dates of entry into the United States as they will have no entry
documentation? Will affidavits be sufficient or what other forms
of proof will be deemed acceptable? What will be the standard of
proof -- clear and convincing evidence or only a preponderance of
the evidence? Or will the standard of proof change depending upon
whether the individuals are before the agency in adjustment of status
proceedings or before the immigration court in removal proceedings?
Third, how can the Bush Administration realistically justify this
policy when everybody who knows anything about immigration law knows
that this general rule of applicability is especially aimed at the
Haitians and all other aliens are being caught in the spray? The
reasons for promulgation given in the regulation, such as "deterring
surges in illegal migration by sea, including potential mass migration
and preventing loss of life" would make people chuckle, if the situation
was not so serious. Entering by sea is no more dangerous than entering
through trucks with airless compartments by land or walking over
a burning desert from the Mexican border--and many more people,
Hispanics, surge over by land than by sea and die in the crossing.
Yet we see no regulation placing land entries under expedited proceedings
because of the population that such regulation would affect.
On December 26,
2002, the Administration issued a final rule on the adjustment of
Indochinese to permanent residence in fulfillment of the Foreign
Operations Appropriations Act of 2001 which provided for the adjustment
of status to permanent residence of 5000 eligible natives or citizens
of Vietnam, Cambodia, and Laos each year for a three-year period
of time to 2006 so long has the individuals were inspected and paroled
into the United States before October 1, 1997; were physically present
in the United States prior to and on October 1, 1997; and were paroled
into the United States from Vietnam or under the auspices of the
Orderly Departure Program, from a refugee camp in East Asia, or
from a displaced persons camps administered by the United Nations
High Commissioner for Refugees in Thailand.
In conjunction
with this regulation, the Administration stated its concern that
many of these parolees had past crimes, and so issued a further
regulation effective January 27, 2003, that the government in general
would not grant waivers in most cases involving violent crimes.
Unfortunately this rule, ostensibly aimed at the Indochinese, has
also turned out to be a rule of general applicability for all aliens.
The 212(h) waiver at issue here is a device used by many aliens
over the years to waive the effects of excludable acts, including
crimes. The law provides that the Attorney General may in his discretion
waive offenses including most crimes under 2 conditions: 1.) if
the crime occurred more than 15 years before the alien's application
to enter the United States, the alien's admission will not be contrary
to the national welfare, safety, or security of the United States,
and the alien has been rehabilitated. 2.) if the alien is the spouse,
parent, son or daughter of a citizen of the United States of a green
card holder if it is established to the satisfaction of the Attorney
General that denial of the alien's admission will result in extreme
hardship to the United States citizen or lawfully resident spouse,
parent, son, or daughter. In this accompanying regulation to the
Indochinese adjustment regulations, the Bush Administration is changing
the landscape to state that the Attorney General will as a general
rule no longer agree to a waiver in most crimes involving violence
except in extraordinary cases involving national security or foreign
policy or where the alien is able to show that a denial of the waiver
would result in "exceptional and extremely unusual hardship" to
the U.S. citizen or lawfully resident spouse, parent, son, or daughter
of the excludable alien. But even meeting the more restrictive standard
is not a guarantee that the waiver will be granted as the regulation
further states that dependent upon the gravity of the alien's underlying
criminal offense, the showing of extraordinary circumstances might
still be insufficient to warrant a favorable exercise of discretion
by the Attorney General.
(Part II)
There are
5 questions to be asked here. First, why is the regulation so broadly
phrased in its designation of crimes involving violence as not worthy
of compassion, especially since some crimes which do not even involve
touching another human being are considered crimes of violence?
Unfortunately the law has evolved in such a conservative manner
that a "violent" crime which needs forgiveness and now must meet
the new enhanced standard could be simply a fistfight between friends,
or one spouse or boyfriend/girlfriend slapping each other in a domestic
dispute, or in some states driving under the influence or breaking
into an unoccupied car with intent to steal the radio or something
else in the car. Why should persons caught up in situations like
these not even be deemed basically eligible for a waiver unless
they have extraordinary equities? Second, how are we to read the
term "in general" in the regulation's wording that the Attorney
General in general will not favorably exercise discretion for crimes
involving violence. Are we to read it to mean that the Attorney
General will exercise discretion in some cases involving violence
even without a showing of extraordinary circumstances, or are we
to read it in conjunction with the phrase "except in extraordinary
circumstances" meaning that the only exception to the rule is where
extraordinary circumstances are present? If there is the possibility
of waiver grant without extraordinary circumstances, clarification
should be made immediately as adjudicators may believe that they
have no discretion whatsoever. Third, why is the Bush Administration
demanding that aliens be pure and not have imperfections? The waiver
law has been in effect as long as anyone can remember and, although
it has become more restrictive in recent years by congressional
fiat, is still useful in many cases. With this regulation, the waiver
provision will now prove to be singularly unhelpful in most cases
as the standard of proof required to trigger the Attorney General's
discretion, exceptional and extremely unusual hardship, is an extremely
high level of hardship to demonstrate. The Bush Administration should
not limit its discretion to shut out many deserving aliens with
imperfections from immigrating to the United States. No one would
object if the regulation reached those aliens who had committed
the "most violent" crimes. However, the wording of the regulation
does not say that--it only states that the Attorney General in general
will not exercise his discretion favorably in cases involving a
violent or dangerous crime unless the higher standard is met. Whether
the alien commits a small excludable act involving violence or the
probability of violence or a large act involving much prison time
does not appear to make a difference in the standard of proof that
the alien must initially show. Under this regulation, the degree
of violence in the act appears to be only considered a factor in
the Attorney General's decision of whether to exercise his discretion
favorably once the standard of exceptional and extremely unusual
hardship is met. Fourth, what kind of country are we becoming that
immigrants with small crimes can be barred from immigrating, especially
in light of this country's history? It should be remembered that
immigration to the United States throughout history has not necessarily
been by the best and the brightest. The history of immigration is
replete with tales of ruffians and criminals who were thrown out
of or fled the police of other countries and wound up in this country.
Our great state of Georgia was founded by criminals sent to the
United States from England. Why should we demand that our immigrants
now be lily white pure? Fifth, is this regulation legal? Under the
pretense that the law as passed by Congress has not changed, but
only the factors that the Attorney General will take into account
in exercising his discretion for a waiver involving violent crimes,
the Attorney General has indeed changed the law as passed by Congress.
There may certainly be litigation in the future as to whether this
is a proper use of the Attorney General's regulatory powers, or
whether such regulation infringes upon areas reserved for Congress.
If future adjudications show that waiver applications for small
and large crimes without exception are being denied except for those
showing extraordinary circumstances, a stronger argument would be
presented that the Attorney General has illegally changed the law.
Flimsy excuses
to change the law or restructure governmental organizations are
now common. The abolition of the INS and splitting of its functions
into two separate organizations, the Bureau of Border Security and
the Bureau of Citizenship and Immigration Services, came about because
of official displeasure over the sending out of the flight school's
part of approvals for two hijackers to attend school six months
after the 9/11 events. Yet the approvals had already been made by
the INS in July and August 2001 with official copies to the hijackers
at that time, and the school was only being sent its copy of the
approval by an outside contractor of the INS. The contractor of
course was hired within the regular process of the federal government
for hiring outside contractors and the contractor's work did not
involve the exercise of discretion. The Board of Immigration Appeals
was restructured in 2002 by Attorney General Ashcroft with the official
reason being that too much time was being spent adjudicating the
appeals of aliens. However, the restructuring reduces the number
of judges on the board from 23 to 11, changes the standard of review
to reverse an immigration judge's decision on facts from a fresh
review (de novo) to where the judge had to be "clearly erroneous",
and promotes the use of summary decisions by one Board member without
writing an opinion or consulting colleagues. The reduction in Board
size while stating a goal of reducing the backlog of pending cases
is contradictory in itself, and is an obvious attempt to rid the
Board of its liberal judges. The National Association of Immigration
Judges, incensed by the Attorney General's interference in immigration
court procedures and decisions, has published a position paper that
the immigration courts should be removed from the Department of
Justice.
Special registration
is another device by which the Bush administration is terrifying
immigrant communities. Five more countries including Indonesia were
added to the list last week whose nationals and citizens must register
at the INS if they are non-immigrants. Exempt from the present registration
are U.S. citizens, permanent residents, asylum seekers, refugees,
and diplomats. This now brings the list to 25 countries for registration.
There is much suspicion that many more countries will be added to
the list before Special registration is over. Previously, it was
reported that Al Qaeda was active in 60 countries. Will the countries
of Western Europe make the list next? Terror cells are known to
exist in many Western European countries including Great Britain,
France, Germany and Italy. Even China is reputed to have elements
of Al Qaeda. Soon the Special registration will turn out to be a
general registration. What is the purpose? Does anyone not believe
that potential terrorists will now try as hard as they can to maintain
status? What guarantee is there that registration will do anything
other than provide us with a faster post-mortem of the terrorists
after the deed is done? Current events have also shown that terrorists
are not just visitors, but that some permanent residents and even
citizens are terrorist related. What about women? They too can become
terrorists as seen by the female bombers in Israel, yet the special
registration for most countries only applies to males between ages
16-45. What if potential terrorists come into the country without
papers? They would then not be on the list of non-immigrants required
to register. The stated goal of NSEERS (National Security Entry
Exit Registration System) is to register all non-immigrants entering
and exiting the country by 2005. That would be approximately 40
million registrants annually, when the INS has shown that it has
struggled to register the first 40,000 special registrants. Should
we now register everyone in the country? At a time when the Bush
administration is attempting to highlight television spots throughout
the Arab world showing the fine life style of Muslims in this country,
these attempts are being undercut by the palpable fear in U.S. immigrant
communities. The arrests of hundreds in California in the first
days of registration help to fan the fear. Also adding to the fear
is the silence of the Bush Administration as to the fate of those
who are out of status, and have no pending immigration applications.
If the Administration wishes to allay fears, it should come out
with a statement that the information from such registration will
not be used to subject the registrants to removal proceedings unless
they have terrorist ties or have committed serious crimes. This
is not without precedent, and the restricted use of information
did much to guarantee the success of the 2000 U.S. Census and the
last amnesty program in 1986. Instead we are hearing stories that
in immigration offices around the country, people with no crimes
or relation to terrorists are being handcuffed, detained and given
notice to appear for immigration court hearings unless they have
always maintained status in the US; that INS officers are largely
deciding on their own what treatment to give out to the special
registrants; and that even persons who have pending immigration
benefits for permanent residence are being issued court notices.
The present developments
are alarming as they appear to be part of a conservative Administration's
plan to change the face of America through the use of 9/11. Could
you or members of your group be the next target? In other areas,
we are now seeing domestic detention of non-citizens, secret INS
trials, the monitoring of attorney-client communications, etc. Where
will we be five years from now -- will we have a compassionate immigration
law or Fortress America with the drawbridges up.
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