From the September 5, 1997 issue of the The New York Law Journal

Americans have always been ambivalent about immigrants. On the one hand, Americans like individual immigrants, especially ones who play by the rules to get ahead. On the other hand, in public opinion polls, Americans consistently favor restricting immigration to this country.
     U.S. immigration law reflects that ambivalence. In recent years, Congress has passed restrictive immigration laws to crack down on unauthorized immigration and make it easier to remove aliens who came illegally or who have overstayed. Yet our immigration laws have always allowed for relief from removal in compelling individual cases.
     The current Administration reflects that ambivalence, too. Last fall, President Clinton signed a major law designed to halt unauthorized immigration. Yet, in the last few weeks he and Attorney General Janet Reno have both acted to ameliorate some aspects of the new law. Critics charge that the administration's actions amount to a new amnesty program for hundreds of thousands of Central Americans. True? And why the Administration's change of heart?

Changes in the Law
Before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (enacted as Division C of Pub. L. No. 104-208, 110 Stat. 3009), discretionary relief known as suspension of deportation was available to aliens who had been continuously physically present in the U.S. for seven years, had shown good moral character and had demonstrated that deportation would cause "extreme" hardship to themselves or to immediate family members who are U.S. citizens or lawful permanent residents. This kind of relief was hard to obtain. Even if the alien met the statutory requirements, an immigration judge could deny the relief as a matter of discretion.
     In 1995, the latest year for which complete statistics are publicly available, only 3,168 aliens obtained suspension of deportation, out of an estimated 2 million to 3 million undocumented or out-of-status aliens in the U.S. (1995 Statistical Yearbook of the Immigration and Naturalization Service 48 (1997) (table 9).
     Congress thought that even this relatively low number was too high, and it significantly tightened the requirements for suspension in the IIRIRA. Among other things, Congress renamed the relief "cancellation of removal." (Immigration and Nationality Act [INA] sec. 240A(b)(1).
     The IIRIRA increases the number of years of physical presence required, from seven to 10. Mere "extreme hardship" is no longer sufficient. An alien must now show that his or her removal would cause "exceptional and extremely unusual hardship" to a spouse, child or parent who is a U.S. citizen or lawful permanent resident. Hardship to the immigrant applicant no longer counts. Congress imposed an annual cap of 4,000 on this type of relief.
     The IIRIRA also changed how time is counted for the purposes of suspension of deportation or cancellation of removal. Until the IIRIRA, the applicant continued accruing time toward the needed seven years, even after deportation proceedings began with the issuance of an order to show cause (OSC). The IIRIRA added INA sec. 240A(d)(1), which imposed a stop-time rule. This rule terminates the period of continuous physical presence at the time when an alien is served a "notice to appear" under INA ?239(a). In other words, even if an individual continues to be present in the U.S. during removal proceedings, he or she does not accrue continuous physical presence for cancellation of removal purposes.
     Another provision of the new law (IIRIRA sec. 309(c)(5)) provides that the stop-time rule applies to notices to appear issued before, on or after the IIRIRA's enactment date of Sept. 30, 1996. However, "notice to appear" was a new term of art added by the IIRIRA, and INA sec. 239(a) was created by the IIRIRA. Arguably no notice to appear under sec. 239(a) could be served until April 1, 1997, when most of the IIRIRA's provisions took effect.

Controversy Flares
These restrictions to suspension of deportation relief proved controversial. Hundreds of thousands of aliens, many of them from Central America, either had applied for or wanted to apply for suspension of deportation.
     For example, the Nicaraguan Review Program, under successive administrations from 1985 to 1995, protected roughly 40,000 Nicaraguans >from deportation while their cases were under review. During this time class action litigation in American Baptist Churches v. Thornburgh (ABC), 760 F. Supp. 796 (ND Cal. 1991), resulted in a court settlement that protected roughly 190,000 Salvadorans and 50,000 Guatemalans.
     Other Central Americans have been unable to obtain a decision on their asylum applications for many years. Many aliens infected with the HIV virus or AIDS worried that after April 1 it would not be enough to show extreme hardship to themselves to obtain relief from deportation. All of these aliens feared that the IIRIRA's restrictions would prevent them from applying for or winning cancellation of removal.
     Many aliens rushed to apply for relief under the old, less restrictive suspension of deportation rules before the April 1 effective date.
     The controversy flared in February, when a 7-5 majority of the Board of Immigration Appeals (BIA) held in Matter of N-J-B-, Interim Decision No. 3309 (BIA 1997), that "notice to appear" is synonymous with "order to show cause." The majority held that even OSCs served before Sept. 30, 1996, would trigger the stop-time rule. Therefore, suspension applicants who had not been continuously physically present for seven years before they had been served with an OSC were no longer eligible for suspension of deportation. This was true even if their OSC had been issued and served many years ago.
     Many aliens immediately challenged the N-J-B-decision in court. In late June, a federal district judge in Florida issued a preliminary injunction preventing the deportation of tens of thousands of persons whom the U.S. government claimed no longer qualify for suspension of deportation as a result of the IIRIRA. Tefel v. Reno, No. 97-0805-CIV-King (SD Fla. June 24, 1997). In his 67-page order, U.S. District Judge James L. King noted that he had rarely seen such heart-rending facts and recounted numerous examples of individuals whose deportation would result in substantial hardship for themselves and their family members.
     Political pressure also began to mount. Central American leaders publicly criticized the new immigration restrictions and worried about wholesale deportations of people to their homelands. During a visit to Central America this spring, President Clinton promised leaders of the region that he would propose legislation to remedy the law.
     President Clinton acted on that promise last month by sending to Congress the Immigration Reform Transition Act of 1997 (S. 1076). The legislation would delay the effect of the IIRIRA's new cancellation of removal provisions so that immigration cases pending before April 1, 1997, would continue to be considered and decided under the rules for suspension of deportation as they existed before that date. The IIRIRA's new cancellation of removal rules would generally apply only to cases started on or after April 1, 1997.
     President Clinton's proposal would exempt suspension of deportation cases from IIRIRA's annual cap of 4,000 cancellations of removal. It would also exempt from the cap cases of battered spouses and children who otherwise receive such cancellation. The proposal would also guarantee that cancellation of removal proceedings against certain individuals covered by the ABC settlement and certain other Central Americans with long-pending asylum claims would be governed by the pre-IIRIRA substantive standard of seven years continuous physical presence and extreme hardship. It would further exempt those same individuals from IIRIRA's 4,000 cap.

Turnabout
Congress must pass President Clinton's proposal before it can take effect. By contrast, Attorney General Reno has already acted to implement one of President Clinton's legislative proposals. Last month, Reno vacated Matter of N-J-B-and directed the Bureau of Immigration Appeals to refer the case to her for review. Thus, for the time being, the new cancellation of removal
rules are not being applied retroactively to suspension of deportation cases begun before April 1.
     If Congress refuses to pass President Clinton's proposal, the Administration may take other administrative action to help aliens hurt by the IIRIRA's new restrictions on relief from deportation. President Clinton said in a written statement that he is "prepared to examine any available administrative options for granting relief to this class of immigrants.
     These options could include a grant of Deferred Enforced Departure for certain classes of individuals who would qualify for relief from deportation under this legislative proposal." (White House press statement, July 24.) The Administration has deferred the enforced departure of groups of aliens in the U.S. before, most recently for certain Salvadorans a few years ago.
     President Clinton couched his legislative proposal in terms of fairness. As he said in a written statement, the bill "would prevent the inherent unfairness of applying new rules to old cases .... This proposal dictates no particular outcome of any case. Every application for suspension of deportation or cancellation of removal must still be considered on a case-by-case basis. The proposal simply restores a fair opportunity to those whose cases have long been in the system or have other demonstrable equities." He added that the bill "in no way diminishes the important enforcement objectives of the 1996 immigration bill, nor is it an amnesty or waiver program."

Is It Amnesty?
Do the actions of President Clinton and Attorney General Reno constitute an amnesty for hundreds of thousands of aliens? Or are they simply applying the American hallmarks for fairness and Due Process to aliens? We think the latter. As Justice Brandeis recognized long ago, deportation is akin to the loss of property or life, or "all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
     Given the harsh consequences of deportation, courts have traditionally followed the sound principle of resolving doubts in statutory construction in favor of the alien. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
     After the IIRIRA and the Bureau of Immigration Appeals' decision in Matter of N-J-B-, however, the benefit of the doubt has been turned on its head. As BIA member Lory Rosenberg noted in her dissent in Matter of N-J-B-, "[l]ike Alice in Through the Looking Glass, what was the benefit of the doubt now has become the doubt that any alien should receive any benefit."
     In our view, the Administration's efforts are simply to return balance to our immigration laws. Yes, our immigration laws should be enforced. And, as a general proposition, we should remove those who came illegally or who overstayed. But we should be sensitive to the situation of Central Americans, whose presence in the United States is largely the result of political turmoil at home, created by our foreign policy decisions.
     Our laws have long taken into account the harsh consequences of deportation. Even after the passage of the IIRIRA, we allow aliens to remain in those rare cases where they can demonstrate exceptional and extremely unusual hardship to their loved ones.
     This principle should be administered fairly. Limitations on that form of relief should not apply retroactively. Following that simple principle does not amount to undeserved amnesty.

Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure (Matthew Bender). Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller in Ithaca, New York, and teaches immigration law at Cornell Law School.

For further information on these or any other immigration issues, please contact Miller Mayer.